Our first report covered the arrangements for High Court enforcement in some detail and included proposals from the Sheriffs of England and Wales for their own reform. At the time, these were the subject of ongoing discussion with LCD officials. We are disappointed that these discussions have not led to early and substantial reform and are not being taken forward. As sheriffs now say that they cannot reform themselves we are led to consider what transitional arrangements are needed for High Court enforcement and how these might be achieved. We see change as a necessary and a compelling priority.
We think that the responsibilities and the potential liabilities High Sheriffs carry (for six years beyond their term in office) are onerous and inappropriate for unpaid volunteers serving a year in office to bear. We are concerned that they do not have in place mechanisms to discharge their responsibilities appropriately and in a way that matches contemporary expectations of openness and transparency also that they appear to know little or nothing about the practicalities or process of enforcement. The current arrangements and a desire to preserve their own future, through the continuity of the Under Sheriffs, may have led them to re-appoint only those who have previously held office and are willing and well placed to serve them in their ceremonial function - irrespective of their efficacy in enforcement.
It seems to us that it is the role of the Sheriffs Officers Association (SOA) and to a lesser extent the supervision of Under Sheriffs that has maintained the higher standards of professionalism and integrity claimed by sheriffs and recognised by their customers, members of the judiciary and LCD. We see no real evidence that the role played by High Sheriffs has contributed to this in any meaningful way yet we are told they wish to retain nominal responsibility for sentimental reasons. While recognising the contribution that these volunteers have made, their goodwill, best intentions, and the centuries of tradition involved, we nevertheless find this position difficult to reconcile.
We are concerned that despite a stated willingness to deliver change, a clear understanding of Government concerns and considerable effort by the SOA and Sheriffs Lodgment Centre (SLC), sheriffs have delivered no change to date. The fee scale payable for High Court enforcement activity leads us to believe that the apparent impasse over an indemnity (for the appointment of others) could have been internally resolved and that with stronger leadership change could have been implemented.
We wish to see early change to modernise the roles, responsibilities, and procedures involved in High Court enforcement and to separate enforcement from High Sheriffs', Under Sheriffs' and Sheriffs Officers' other interests. It seems unnecessary and inappropriate for the process of enforcement to involve High Sheriffs; or for the current appointment system for Under Sheriffs and Sheriffs Officers to be maintained. We see no need for a distinction between Under Sheriff and Sheriffs Officer to be maintained and feel that enforcement must of necessity be divorced from any other (ceremonial) function or expectation.
Most importantly we want to introduce competition, an open and transparent system and address the need for customer choice and professionalism, in the process of High Court enforcement as soon as possible. We want those who are currently actively engaged in this work to be able to continue, and others who may wish to become involved to be able to join the market at the earliest suitable opportunity. We recognise that some among sheriffs must, of necessity and in fairness, be offered a little time to adjust ahead of future legislative change, having been hindered from developing a market based system by the confines of an archaic structure hitherto.
The current fee structure lacks transparency and is open to claims that it may fund activities or personnel that are not directly involved with enforcement. We find this unacceptable and for the benefit of all complete transparency in the fees scale is desirable. We understand that sheriffs' fees will be considered as part of the package of proposals to be set out in a White Paper and hope that our recent Report on the issue of fee principles is useful in this regard.
We welcome the fact that the Sheriffs Officers Association has reviewed its rules for membership and embraced all Under Sheriffs who wish to join and work constructively to deliver substantial and fundamental change in the shortest possible timescale. In accordance with the aims of the Review and the future model for a regulatory structure envisaged, those who take part in High Court enforcement should be members of a professional body. Given its existing extensive coverage among those actively engaged in High Court enforcement, their willingness to embrace change and the relevant professional standards involved the SOA seems a suitable existing model on which to build.
Such a professional body should be inclusive of everyone currently actively engaged in High Court enforcement and open to others. Its duties must include monitoring the performance and standards of its members; setting and maintaining professional standards for High Court enforcement. Given the role and integrity of the High Court, those who enforce its judgments should present an exemplar for others in the private sector.
Arrangements for further developing the SOA would be expected to build upon those currently set out in the National Standards for Enforcement Agents. There will need to be openness and transparency of membership and most importantly the ability to be authorised to undertake High Court enforcement without having been appointed either an Under Sheriff or Sheriff's Officer or holding membership of the Sheriffs Officers Association.
Having set out the important role that the SOA can play, we nevertheless take the firm view that change is needed urgently and should be introduced as soon as a legislative opportunity permits. If change is to be introduced in advance of the future regulatory structure envisaged by the Review then the SOA alone cannot be charged with these responsibilities. We are of the view that the authorisation of those who will be obliged to undertake enforcement of High Court writs should, of necessity, be a matter for the Lord Chancellor and one over which he should have a clear authority, although it may be suitable for delegation; perhaps for judicial oversight. We think it may be suitable for a member of the judiciary to have oversight of the arrangements and authority over those approved. This responsibility might include dealing with any complaints that have not been effectively dealt with by the SOA or against its actions in respect of its members.
We seek a method by which writs of execution could be addressed to any authorised individual, in terms that required their enforcement, at the same time we recognise that such an obligation must recognise reasonable commercial expectations with respect to geographical coverage etc. There is then the process by which the creditor will address the writ to the authorised enforcement officer and the means by which priority, insolvency notices and fairness of distribution among those authorised to undertake work where customers do not make their own specific choice clear. In our view perceived difficulties about the practicalities of these fairly straightforward distribution issues appear to have been used as an obstacle by those who merely seek to avoid any change whatsoever.
We are confident that the combined expertise and goodwill offered by the SLC and SOA coupled with a determined resolve in LCD and support from Court Service will be able to meet this task and overcome what appear to us to be fairly minor difficulties - notwithstanding that we do not underestimate their importance in ensuring that a new system is robust effective and customer focused.
The detail of how a revised system would work in practice will depend on the legal framework and would be a matter for LCD in due course and the subject of consultation with those involved. We see it as essential to redress the current shortcomings and meet the clear and compelling moral legal and business arguments for change at the earliest opportunity.
Copies of the full report are available from David Ilic at:
Civil Enforcement Branch
Lord Chancellor's Department
Selborne House, Rm 3.23
54-60 Victoria Street
London
SW1E 6QW
Tel: 020-7210 8654
Fax: 020-7210 8559
Email: David Ilic