The bailiff industry is desperately in need of reforming. Over 10 years ago in March 2000, Professor Jack Beatson QC issued a Consultation Paper, the primary aim of which was to consider the extent to which bailiff law could be reformed and therefore simplified and made more transparent. He noted that the law is of “considerable antiquity” and that there are 17 different forms of seizure of goods, governed by 59 separate items of legislation.
Following the responses, Professor Beatson published a 107 page report for the Lord Chancellor entitled: Independent Review of Bailiff Law. This report took into consideration the recent Human Rights Act and he provided many recommendations for change.
Since the publication of the Independent Review of Bailiff Law in June 2000, none of the recommendations have yet been implemented although, in July 2007 the Tribunals Courts and Enforcement Act 2007 was introduced and Part 3 of this Act, which relates to bailiffs and enforcement, contains some of the recommendations made by Professor Beatson. However, Part 3 is yet to be implemented.
A further Consultation paper entitled “Regulation of Enforcement Agents” was issued in 2007 seeking views on the options for the future regulation of enforcement agents. The responses were published in March 2008 and these recommended that bailiffs should be regulated by one body; the Security Industry Authority (SIA). However, the report confirmed that the SIA would not take on the role of dealing with complaints against bailiffs.
In 2008, the Secretary of State for Justice, Jack Straw asked for a comprehensive review of the enforcement provisions contained in Part 4 of the TCE Act. Specifically, the Secretary of State wanted a reassessment of whether the new law provided for in the Act in relation to enforcement remained appropriate in the current economic climate. Following this review, in March 2009, the Government confirmed that they would not be extending bailiffs powers of entry and the use of force by enforcement agents. Regular viewers to the Bailiff and High Court Enforcement Officers section of the Consumer Action Group forum will be aware that in 2007, a thread was started entitled: Bailiff Petition; Stop them getting a legal right to forced entry. This thread attracted nearly 1,000 responses and received 97,000 viewers!!
In 2009, some measures were implemented to “prepare the ground for long-term reform of the enforcement industry” and this included an on-line certificated bailiff register allowing debtors to check bailiffs’ certification status and an extension to the certification process to ensure that all bailiffs provide a Criminal Records Bureau check with their application to become a bailiff. The bailiff register can be accessed in the Bailiff and High Court Enforcement Officers section of the Consumer Action Group forum and has proved very useful indeed in that it has been viewed approximately 36,000 times.
Last year we had a change of Government and, in March 2010 the Secretary of State announced that the new Coalition Government were committed to “providing more protection against aggressive bailiffs” and that they were looking at options for public consultation on this commitment to include the better regulation of bailiffs, the powers of bailiffs, their costs and how complaints should be dealt with. They confirmed that they intended publishing the Consultation paper in Spring 2011.
Also, last year, the government announced that the SIA is to be abolished and this has naturally led to much confusion as to the future regulation of bailiffs.
This month, the Ministry of Justice confirmed that the public Consultation is due to begin in July 2011 and will end in October 2011. This consultation will focus on regulation of the bailiff industry and of implementing Part 3 of the Tribunals Courts and Enforcement Act. This part of the Act should refine the current law and bring in a comprehensive code on issues of enforcement. It aims to abolish complex and archaic legislation to ensure that bailiffs carry out their work in a transparent, fair and honest way and provide clarity for debtors. In particular, subject to consultation, regulations under the Act should address the matter of:
when and how a bailiff can enter premises
what goods they are able to seize and sell; and
what fees they are able to charge
The government has also confirmed that Part 3 of the Tribunals Courts and Enforcement Act will not be introduced until a regulator has been appointed.
According to a House of Commons briefing paper dated January 2011, it states that it is the Governments view that independent regulation of the enforcement industry will not only improve efficiency and effectiveness of both civil and criminal enforcement but it will also offer protection to vulnerable debtors and reduce the scope for abuse of the system. Furthermore, in 2009, Lord Bach confirmed that it was the Governments “long-term intention for all enforcement agents who are not Crown employees to be overseen by an independent regulatory body”. He also confirmed that (at that time) the Governments preferred option was the Security Industry Authority.
With the uncertainty over the future of the SIA and mindful that the Government are looking to cut costs, recent alternative draft proposals have been submitted to all members of the Enforcement Law Reform Group and to the Ministry of Justice for consideration. In my opinion, one such proposal deserves very serious consideration. This was submitted by the Bailiffs and Enforcement Agents Council (BEAC) and had been originally proposed by Mr Keith Banbury in 2007 when he was Chief Executive of the British Parking Association.
Recently, the proposal was revised by members of the working paper who include Lord Lucas of Crudwell and Dingwall and now provides for an independent regulatory body that will also manage complaints from the public and can be funded by the industry.
To confuse matters, the British Parking Association has also recently issued their own proposal to regulate bailiffs and wheel clampers. Personally, I do not consider that this proposal has much merit.
The bailiff industry itself is of course very keen to seek the agreement of the Ministry of Justice for self regulation. Frankly, in my opinion the bailiff industry should not be allowed to regulate itself and some form of independent external regulation is essential for the future credibility of the industry.
The public consultation on the implementation of Part 3 of the TCE Act will begin in July 2011 and end in October 2011. It is anticipated that Part 3 will then be implemented in early 2013. The timing of this consultation is very disappointing indeed as such an important consultation should not be conducted during the summer holiday period when it is difficult for organisations to collate opinions and for cross industry sources to meet.
There are many items within Part 3 of the Tribunals Courts and Enforcement Act that are of very serious concern indeed to the advice sector and it is most important that this sector respond to the consultation document with their concerns and recommendations. I intend posting a copy of the consultation paper in the “Sticky” section of the Bailiff and High Court Officers area of the Consumer Action Group forum as soon as it is made available and I will naturally try to answer as many questions as possible that may arise.
As a member of the Enforcement Law Reform Group I will of course be responding to the consultation paper as a representative of the advice sector and in doing so, I will be taking into consideration the concerns that may be raised by members of the public in the Bailiff and High Court Officers section of CAG.
This public consultation will be the last opportunity to stop Part 3 of the Tribunals Courts and Enforcement Act 2007 from being implemented as it currently stands. There will not be another opportunity to have good bailiff law and to protect vulnerable debtors from aggressive bailiffs and this consultation will give the public the opportunity to influence change.
Tom tubby
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