Lord Desai extended a welcome to all present and reminded participants that the Open Meeting was designed to receive views from those present, and that the day was meant to be as consultative as possible.
John Tanner outlined the aims, conduct and structure of the meeting.
Aims:
to provide a chance for those present, those most concerned with the future of enforcement on a day-to-day practical level, to air their views on key issues; and
crucially, to inform the Advisory Group's deliberations and its report to Ministers.
He reaffirmed that the Advisory Group is not seeking to reach conclusions today, firm or otherwise and that equally it has not reached conclusions yet - there is not a set of recommendations waiting nor a draft White Paper. Therefore the Advisory Group wants an open and frank exchange of views which in turn respect the views of others.
The day will be divided into two sessions, focusing on structure and financing respectively. Different members of the Advisory Group would be on the panel for each session, and both sessions would be chaired by Lord Desai.
Panel members Session 1: Professor Lord Desai, Jeremy Sutcliffe, John Tanner, Viv Hodgson, John Kruse, John Sills, John Marston, Sheena Garbutt.
Panel members Session 2: Professor Lord Desai, Jeremy Sutcliffe, John Tanner, Viv Hodgson, Alan Philips, Nick Pearson, Andrew Rose, Barrie Minney.
John Tanner raised a series of points for initial consideration, in addition to questions raised from the floor:
Questions that were submitted in advance were asked by their authors (if present) or read by Lord Desai, and their authors have been identified in this record of the meeting. Since not all those asking questions from the floor identified themselves, they remain unattributed. All responses by members of the Advisory Group have been attributed, and are those of the individuals concerned, not necessarily the Group as a whole.
Q. 1. (Kathryn Parle, Bailiff Manager, Stockport County Court): Whilst I appreciate the need for a market based strategy, it is important that the competition is fair. If County Court Bailiffs are not going to be able to provide certain services, (e.g. the service of certain documents) how can the claimant be getting a choice and is consideration being given to other functions being taken from us in the future? With particular reference to the service of N39s - is this function to be taken away from county court bailiffs, and would such a shift in responsibilities affect staffing levels?
Q. 2. Is there the possibility for county court bailiffs to take on other work, for example, from the Magistrates courts?
Q. 3. (Gavin Cook, Telford County Court): Wouldn't the review be the ideal time to attempt to try and merge the County and Magistrates Enforcement Sections? If not, why not?
In response, John Sills stated that as the nature of the services offered by bailiffs changes, so other opportunities to focus on other areas of business, particularly enforcement, will arise. This will not lead directly to reductions in staff. The Modernising the Civil Courts programme offers opportunities for bailiffs to do more. In the context of MCC there is no firm view on the transfer of Magistrates' court work; more may emerge following the work generated by the Auld Review.
In relation to the Auld Review, John Tanner outlined the implications of Recommendation 151, which refers to the possibility of transfer of responsibility for civil enforcement work processed by the Magistrates courts to the county courts (mostly Council Tax, Child Support Agency and Inland Revenue work). Auld recommends a scoping study on whether that transfer of business is feasible.
John Tanner's view is that it is not necessarily a question of simply picking a block of Magistrates' court work and dropping it into the county courts; much of the nature of the business is substantially different to county court work, in terms of procedures and methods of processing. Therefore in addressing the recommendation one issue on which to focus is whether the work is amenable to transfer to the county courts. Going back to first principles, ought it to be in the courts in any event. We need to take into account the structure and administrative processes of the criminal courts, and the potential impact on the rest of the criminal justice system. To look at Recommendation 151 in isolation is a mistake.
Q.4. Why was there no active bailiff or bailiff manager on the Advisory Group?
No application had been received directly from a county court bailiff. [Details not provided at the Open Meeting: The Advisory Group's Court Service representation is provided by ex officio members John Sills (Director of Civil & Family Business) and Alan Philips (Group Manager, East Midlands Group). Court Service had been invited to make nominations and it was felt that a county court bailiff could not be expected to represent the views of all the bailiffs. However, the Review Team has held more than 30 meetings with County Court bailiffs and their representatives and this meeting provides further opportunity for them to feed in their views. The Advisory Group had been set up as a NDPB Advisory Group and members other than LCD and Court Service representatives were appointed by the Minister. Applications had been considered on merit, and the selection process has been overseen by an independent assessor in accordance with government guidelines.
Reverend Paul Nicolson, of Zacchaeus 2000 Trust expressed his sympathy for bailiffs who were often working in trying conditions. He proposed:
Q. 5. (Chris Tye, ACEA): What is the basis of the statement that most, but not all, enforcement agents really want to do a good and fair job?
Discussion in response to this question centred on the issue of performance indicators and statistical information:
County court bailiffs are answerable to Key Performance Indicators. Other enforcement agents do not produce publicly available figures, so there is no means of comparing their performance to county court bailiffs
Sheriffs do not produce any national statistics yet, and as small individual businesses in the past have not been asked to do so. They do maintain some statistics and are working together with the Review Team to provide comparative statistics by the beginning of next year (John Marston)
Bailiffs and sheriffs have one fundamental duty: to endeavour to recover debts and to stay within the law. They have a duty to the creditor and the debtor, and to respect everybody's legal rights (John Marston)
One private bailiff firm, who have close on 1 million cases per year, is able to provide statistics, but has not done so because it has never been asked
Other private sector bailiff organisations wished to be sure of the future use of any statistical information
It was agreed to continue the discussion on the collection of statistics, which would need to be publicly available, from all types of bailiffs/sheriffs. The Review Team and the Advisory Group were also looking for statistics to enable customers to make an informed choice. In response to the question of 'what is effective'? The NACAB report identifies most problems as being in respect of the enforcement of public debt provided by the private sector. (Viv Hodgson)
This led to questioning of the ability of the Advisory Group to make recommendations now, since they had no statistics on which to do so, did not have direct knowledge of the range of jobs within the enforcement sector and did not know how effective each group was.
There is a need to create a service where consumers have information on a range of services, across the enforcement field (Lord Desai)
However it was also felt that as well as addressing the issue of statistics and choice there was a need to look at the quality of work.
In conclusion on this point, Lord Desai pointed out that because the enforcement system is undergoing modernisation and review, it is inevitable that anomalies will be unearthed and anxieties revealed. The challenge for all present is to advance rights, develop methods to make comparisons and collect comparative statistics, and to clear a space for debate.
Q. 6. The Green Paper outlines a regulatory option of an Enforcement Services Commission. Could the Advisory Group expand upon the proposal to remove the independent judicial role of the District Judge as high bailiff?
District Judge Monty Trent answered from the floor, pointing out that District Judges do not feel that they are doing the job effectively, and that the job of high bailiff is in fact inconsistent with their judicial role.
Q. 7. (Alison Butt, Association of Magisterial Officers): Enforcement of fines imposed as punishment and compensation ordered to the victims of crime is central to the credibility of our Criminal Justice System yet it has been tagged on to the end of a review of the enforcement of civil debt. Will criminal enforcement be given the thorough review it deserves and considered in the light of the proposed changes to the criminal justice system? In particular will there be an objective analysis of the benefits of this work being done by the criminal courts' enforcement officers within the context of a unified court system?
Sheena Garbutt took these concerns on board, but was not sure she was in a position to answer the question. David Webb, from Criminal Justice Division, LCD, confirmed that there was no concrete answer at this stage. LCD is concerned to improve enforcement across the board, but there is a need to review through Auld before enforcement in the Magistrates' courts itself is reviewed.
Q. 8. (Chris Tye, ACEA Secretary): How do the comments relating to county court bailiffs and sheriffs square with the declared intention to abolish jurisdictional monopolies?
Jeremy Sutcliffe responded by positing that if one entity controlled enforcement it could provide people to cover all areas. He pointed to the system in Scotland, which had overcome jurisdictional limits. On the question of jurisdiction it is important to realise that there are legislative constraints which currently prevent the opening up of enforcement, such as the Sheriffs Act (Viv Hodgson). In order to address this question, the Advisory Group has set up a sub-group that will look at the practicalities of bailiffs and sheriffs working more co-operatively together and identifying practical barriers to closer liaison.
General discussion, in the closing stages of this session, raised the following points:
There is an implication in the Delegate Pack that private bailiffs need to 'clean up their act'; the role of the Enforcement Commission with its licensing powers, as outlined in the Green Paper, appears to be the best solution for achieving this
It would be useful to have an indication of the recommendations of the Advisory Group; currently policy statements are being issued, but there is a need for concrete recommendations, to which interested parties can respond directly
The Advisory Group had addressed this matter by issuing a statement acknowledging their support for continued public and private sector provision for enforcement of civil court warrants for at least the next 5 years, with increasing co-operation between both sectors
Some users are not convinced by the need for an external regulatory structure, but would like to see a court-based system, with an expansion of the role of District Judges (Jeremy Sutcliffe)
An Enforcement Services Commission is essential, but it is not the only element of an effective enforcement system - there is also a need to look at fees. Unless fee scales are revised and improved abuses will continue (John Kruse)
There are concerns arising from a court based system of regulation, since current certification practice in the courts has not provided a robust system of regulation of private sector bailiffs. Removing the certification process from the courts may indeed be the way forward (John Kruse)
Following the transfer of warrants to the Magistrates' courts there is another model for approval of enforcement agents (David Webb).
Lord Desai, after confirming the consultative nature of the meeting, introduced two questions that had been submitted by members of ACEA and the CBA in relation to finance and fees, which was the focus of the second session.
Q. 9. (Chris Tye, ACEA Secretary): How will the proposed new MCC structure for bailiffs be financed, to what degree will it be subsidised, and by whom?
Q. 10. (Vernon Philips, CBA): What is the Advisory Group's position on the payment of reasonable fees by creditors, such as local authorities, to bailiffs for the work they do?
John Sills responded in relation to MCC, stating that county court bailiffs are funded out of fees and that there is no reason for that to change. MCC will draw upon taxpayer's money from Treasury for IT investment.
Nick Pearson outlined his position on fees, arguing that the current fee structure, especially in relation to the system used by Local Authorities in which bailiffs receive no money to take on the work, encourages the cutting of corners and leads to abuses. He argued for the Local Authorities to pay fees comparable to those used in the county court system. Currently Local Authorities are asking private companies to do work for nothing, plus provide added value, which inevitably leads to abuses.
In response to a point made from the floor that fees should relate directly to costs, Alan Philips stated that this could be problematic, as the costs of recovery in difficult cases are greater, and such a principle could lead to the creditor paying more and more for recovery in cases where debtors are least likely to be able to pay.
General discussion on the issue of reasonable fees covered the following points:
Users do not mind paying reasonable fees if they have a reasonable chance of getting their money back. The point is more how are bailiffs going to improve the quality of their service so that users have more of a chance to retrieve their money? (Jeremy Sutcliffe)
There is a call for fixed fees in law, giving a level playing field across private and public sector bailiffs, as the experience of compulsory competitive tendering has the effect of driving down standards (Barrie Minney)
In the future there may be scope for different kinds of service providers in enforcement, charging different prices, with the user able to choose the service (Lord Desai)
If private fees were aligned with county court fees, would the Government then pay for investment in private companies?
creditors currently have a degree of choice, being able to transfer warrants above £600 to the Sheriffs, and having options as to who they use as process servers (Alan Philips)
however, there is no choice with regard to Consumer Credit Act cases, regardless of the value of the warrant.
In many cases Local Authorities are asking private bailiffs to work for free, in order to get a report when they (the Local Authorities) know there is no chance of recovery.
There appeared to be a general consensus that the current state of affairs, where private bailiffs are doing work for nothing on behalf of the Local Authorities, was untenable. There is a need for the creditor to pay for the service they engage and, as Andy Rose pointed out, quoting from the Director of the Institute of Ratings Revenue and Valuation: 'The only way forward is to ensure the enforcement agent is treated like any other contractor and is given every opportunity to deliver quality services, with a client-provided specification that is not solely based on price.'
Lord Desai then introduced further questions that had been submitted to the panel:
Q. 11. (Barry Ironton, Bailiff, Willesden County Court): On the improvement of service delivery will there be some means where the Bailiff can assist in assessing defendants' capabilities of paying especially on serving of attachment of earnings summons? This includes an application for the warrant to be suspended, or for there to be future payment, or payment by instalment. The question was asked in order to highlight the point that if a bailiff were able to make a doorstep evaluation of the debtor's position or negotiate part payments, they would have some means of providing an immediate response to the creditor, thereby avoiding future court process.
Q. 12. (Reverend Paul Nicolson, Zacchaeus Trust): Is the Advisory Group aware that the draconian enforcement of public debts against inadequate incomes forces vulnerable people into the hands of licensed door to door lenders at up to 300% interest and the loan sharks who enforce with base ball bats that "encourage" debtors into prostitution and crime to settle debts at extortionate interest rates?
Responses to these questions raised the following points:
the importance of the responsibility of the creditor to provide bailiffs with correct and relevant information in the first place.
The question was asked why information could not be offered freely to enforcement agents, since major creditors must have access to information, which is not covered by the Data Protection Act?
In some instances, in particular the county court bulk centre, large creditors who do have information are unable to provide it to the enforcement agent because of technological hindrances.
There is a need for a central register of unsatisfied warrants
There is a register of county court judgments which can be searched (Alan Philips)
Major lenders, many of whom get judgments as a fishing expedition against poor or multiple debtors or to warn other creditors, also need to take responsibility for their lending practices (Nick Pearson)
As exemplified by a recent exercise in which Andy Rose sought information on a batch of 77 Magistrates court cases returned 'no trace' and received 67 positive forwarding addresses following a Department of Work and Pensions search, creditors should be cleaning information prior to instructing a bailiff
However, there is an over-emphasis by the judiciary, LCD and advice groups as to how much information creditors actually have. In many cases they do not have the information and cannot reasonably get access to it (Jeremy Sutcliffe)
Part of the enforcement industry should be about information; information can come from third parties, or be discovered on the ground, and both sources are valuable to the creditor, who needs to know who can't and who won't pay (Jeremy Sutcliffe)
Should there be a protocol for debtors, governing their responsibilities? (Jeremy Sutcliffe)
Representatives from the Zacchaeus Trust gave examples of vulnerable and socially excluded debtors who may be unable to cope with enforcement and court procedures through no fault of their own - e.g., the illiterate, blind, mentally ill. They pointed out the need for greater co-operation and greater contact between the court, the bailiff and the debtor, before the later stages of enforcement are engaged upon.
Reverend Nicolson outlined a project currently in place at Wycombe magistrates' court in which the Trust provides a Mackenzie friend to those who are identified as in need of assistance. The vulnerable are detected by warrant officers who have the power to grant bail on the spot when present to arrest for non-payment of the warrant. These warrant officers establish contact with the debtors and enable further assistance to be directed to those in need.
A member of the Institute for Credit Management raised a subsequent point in relation to the appropriateness of the forms served on debtors. Currently, the forms do not provide sufficient scope to recognise the difference between trade and consumer debt. This means that many bailiffs are receiving low level information in their instructions to recover debts, and are unable to provide appropriate advice to creditors on the viability of pursuing the debt. Business debtors should not be able to wriggle out of their debts.
Q. 13. Concern was also expressed for the rights of the small creditor - where in the fee structure is the advantage to the enforcement agent to recover the small debt of the individual creditor?
The only appropriate remedy for this would appear to be a cab-rank principle (Nick Pearson). There is also a need to recognise different types of creditor as well as different types of debt (Lord Desai)
Q. 14. There is a problem in building up a post-judgment industry - is there not a need to provide support and information in pre-judgment situations?
The discussion in response to this question covered the following points:
there is a need to control information, and if we can create a principled regulated bailiff they should have the right to seek information and be a custodian of that information, to use that information to obtain payment, and to inform the creditor if the debtor is impoverished or vulnerable (John Marston)
Reverend Nicolson expressed concern as to who would have responsibility for the information - he would be happy for it to be in the hands of the courts or the Local Authorities. If bailiffs only did bailiff work, and not private investigation, then there could be scope for them to have the information, but otherwise it should remain with the court. Jeremy Sutcliffe reaffirmed his support for the proposition that information should remain within the courts
The Civil Court Users Association, in their response to Consultation Paper 1 of the First Phase of the Enforcement Review, highlighted the need for Data Discovery Orders
General discussion, in the closing stages of this session, raised the following points:
The most important thing about collecting money in enforcing judgments is the time between when the debt was incurred and when it is collected. For the process to be successful
Local Authorities should have a social inclusion policy and good Codes of Practice
Local Authorities, which currently make an allowance for council tax which they don't anticipate collecting, the percentage deduction of which is factored in to their budgeting. In order to meet the costs of paying for enforcement services up front, why do they not factor in another 1 % deduction to the relevant figures? Why not use the same approved risk system as they do in housing?
The Small Business Service represents debtors, creditors and bailiffs, and is therefore in a good position to provide assistance for all. They too are in favour of reasonable fees.
In relation to the points on figures and statistics raised earlier, the Public and Commercial Services Union wishes to see figures set against targets, as with court service bailiffs, for other enforcement agents. Costs should not be pushed on to the debtor, and the question of private profit being made from debtors' misfortunes should be considered as well as the need to be fair to both creditor and debtor.
Bailiffs are currently carrying the can for inefficient and irresponsible creditors. Why can't the Advisory Group get performance figures from creditors?
John Tanner informed delegates that all present, and all those who expressed an interest in the proceedings, could have a note of issues raised at the meeting. Also, the Advisory Group, and the Enforcement Review Team would welcome receipt of any further thoughts and views.
John Tanner's concluding remarks focused on three major points emerging from the meeting, which were not new in themselves but did provide a challenge for the Advisory Group and the Enforcement Review Team:
Information: the importance of information was identified in both Phase One of the Review and the Green Paper, Towards Effective Enforcement. Information is essential to effectiveness and how we develop future actions; in particular, the Review has identified Data Disclosure Orders as vital. Difficulties and obstacles around data sharing do exist - in many cases there are statutory bans, and there are fundamental issues around personal privacy and data protection which need to be addressed. The forthcoming Performance and Innovation Unit Report will hopefully tackle some of these issues across Government, and will hopefully provide an architecture on which we can build to make enforcement work more effectively.
Speed: the civil courts, through the Civil Procedure Rules, have made moves to introduce greater speed into the system, while maintaining respect for due process. This is an issue for the Advisory Group, who have thus far looked at coverage in terms of economic and geographical factors, but in future will need to look at the structure of service in terms of coverage for prompt service.
Simplicity: we need a simple system, understandable for users at both ends, with a degree of certainty as to outcome for both debtors and creditors. This returns us to the key issues of the value of information, reasoned decisions and responsible choice in enforcement.
None of this will prove easy, especially in the light of the position from which the Review and the Advisory Group is starting from. However, the starting point is as it is, and we need to move forward from here. The challenge now is to move forward and make enforcement more effective for everyone.