| Copies of the full report may be obtained by e-mailing Marian Quigley at the Advisory Group's Secretariat or by phoning her on 020-7210 8654 |
This Report from the Lord Chancellor's Advisory Group firstly looks briefly at the current arrangements for the enforcement of judgment debts, other than warrants and writs of execution, and indicates how the Enforcement Review is taking forward work to improve their effectiveness. The Report provides an indication of the scale of the debt problem in England and Wales and trends in the use of court based enforcement; we identified a downward trend particularly for warrants of execution and an increase in the use of attachment of earnings and writs of fi-fa.
The Report then sets out a background of the wider context and the range of social policy issues against which the Review itself and the work of this Advisory Group are set. These are relevant to service delivery and we have considered them carefully as they may affect how our proposals will be received and subsequently taken forward.
To assist those in both the public and private sector who need to take decisions about modernisation and investment, we were asked to produce our initial Report as soon as possible. We recognise that there may have been some unavoidable delay in establishing this Group but despite this, have endeavoured to complete the first part of our task on schedule. Much as we would have liked more time to consider these issues and complete our Report and to be able to do so more comprehensively we recognise this is not possible. The Enforcement Review has already been ongoing for more than two years and as it follows similar previous reviews, understandably causes considerable concern and uncertainty among those whom it may directly affect.
It is vitally important that those actively involved in enforcement are assured that their efforts are appreciated and recognised and that any disruption and uncertainty is kept to a minimum particularly as any proposed changes, especially those requiring legislative change, will take some time to introduce. We also recognise the very real concerns which were expressed about job security at the recent Open Meeting. We feel that rapid and drastic change is not required, nor would it be helpful. Over the last three months, we have been mindful of, and committed to, the need not only to maintain, but also where possible to improve, the effectiveness of court based enforcement during our deliberations. Through our Open Meeting and the Updates which have been issued we have tried to keep people fully informed and give them an opportunity to give us their views.
As requested, we have considered the relative effectiveness and efficiency of the current enforcement structures. We are grateful for the information that has been provided by the Sheriffs and the Court Service as well as the many contributions that we have received from a range of interested parties - at the Open Meeting and in discussions and correspondence. We were asked to focus particularly on the issue of civil court warrant enforcement, an area which has been the subject of several reviews during the last thirty or so years. A detailed analysis based on a sample of warrants enforced by county court bailiffs, and writs of fi-fa, enforced by Sheriffs has been undertaken and its findings are at Annex 6 to this Report and are summarised in Section 3.
We have also considered the relative effectiveness and efficiency of the current procurement models and how these currently operate. Our conclusion is that it is good for customers to have a choice of enforcement method and where possible of service provider. The analysis at Annex 6 begins to identify areas of strengths and skills mix which could be used to identify sector match and inform customer choice. A member of our Group who is a very frequent court user indicates that he sometimes prefers to use the county court bailiff in other cases the Sheriff. Customers may regularly stick to one or the other or if convenient, mix and match.
In many cases we can identify the customer quite clearly as the creditor and civil court user who has a judgment to enforce. In other cases, the customer may be the local authority or the magistrates' court and thereby also, although indirectly, the taxpayer. We think that all of these customers should in as many situations as possible continue to be able to choose their service provider. We also think that for all civil court users wherever they live, that choice should exist wherever possible. When it is possible to do so, we think it should be extended by removing the existing jurisdictional monopolies and with strengthened regulation to ensure adequate standards.
Of course the issue of fees is of fundamental relevance to any consideration about service delivery or procurement and like Professor Beatson and the Green Paper we recognise how inextricably the issues of bailiffs' fees, regulation and powers are linked. In Annex 7 there is some background information on bailiffs' fees including a schedule showing a comparison of fees for the enforcement of a £1,000 debt. There are also Papers on fees which have been submitted for the Group's consideration by Mike Garland and by the Certificated Bailiffs Association (at Annex 3). The Advisory Group wishes to consider the issue of fees in more detail in the light of the market evaluation referred to below, the forthcoming PIU Report, responses to this Report, and to the Green Paper.
However our preliminary finding, which we urge the Government to consider and which was strongly endorsed by the views expressed at the Open Meeting, is that all creditors, including Local Authorities and Magistrates Courts Committees, should pay something in all circumstances to undertake enforcement. It is inappropriate, in our view, for up-front payment to be paid only in county court and High Court enforcement but not in other situations. We believe that it is the expectation of work being done for nothing which has driven down standards to those that are criticised in the NACAB Report and have led to a situation where disreputable bailiffs rely on exploitation and the manipulation of the fees structure.
The Group has not yet been able to undertake an evaluation of the likely impact that the regulatory regime proposed in the Green Paper would have on the enforcement services market. This is partly because of the time available to us, and partly because we do not yet have a full analysis of the Green Paper responses, but was most importantly because we require some clarification of how and when Sir Robin Auld's recommendations and the Modernising Government Loans Report proposals will be taken forward. We welcome the fact that it has been possible to engage the services of a research student to undertake some work on this in the short term. Terms of reference for this project are at Annex 8.
We recognise that the recommendations in this Report will inform policy proposals for warrant enforcement and will need to be set against the responses to the Green Paper and in particular the Options it proposes for a Regulatory Structure for Enforcement. We look forward to the analysis of Green Paper responses and the Market Evaluation Report early in the New Year.
We are grateful for the assistance of the Enforcement Review Team in providing a secretariat role to the Group and assisting with the preparation of this Report.
The central conclusion of the First Phase of the Enforcement Review was that access to information is the key to more effective enforcement - the Advisory Group strongly support this conclusion, which is borne out by our own findings and urge Government to address this issue as a priority.
We strongly urge the Government to consider whether all creditors should pay an up-front fee to undertake enforcement action. We believe this would be the single most effective way to raise standards and discourage exploitation of fees. This view is borne out by the experience of this Group and was strongly endorsed by the views expressed at the Open Meeting.
We do not at this stage recommend any radical restructuring, merging or privatisation of the civil court warrant enforcement work, for reasons that we have explored fully in this Report. We acknowledged at our first meeting that there is a continuing need for a mix of public and private sector provision in civil court warrant enforcement for at least the next five years because both sectors are in the process of change and modernisation. We have since concluded that for the reasons outlined at Section 3 it is clearly desirable and necessary for Court Service to maintain a level of ongoing public sector provision, we recognise that in line with all public sector services this issue will be reviewed at five yearly intervals.
We understand that a senior member of Court Service, Peter Risk, Midland Circuit Administrator has the responsibility to ensure the effective marketing of the services of the Bulk Centre and actively encourage the take up of the new On-line issue service, called Money Claims On-Line. We warmly welcome this initiative as a very worthwhile development, this role is linked right through to enforcement of warrants. The Court Service should capitalise on this so that a better service can be achieved for these Bulk Users - many of whom issue a significant number of warrants.
Concerns regarding the form of warrant particularly those used via the Bulk Centre which do not allow creditors to convey information about debtors to the bailiffs who subsequently carry out enforcement, and the need to tailor other forms for use by businesses were raised at our Open Meeting. We understand that a scoping study is planned to look at the whole issue of forms and changes needed, but we ask Court Service and LCD to address these issues in respect of enforcement particularly for bulk centre and business users as a priority.
We endorse the plans for enforcement under the Modernising Civil Courts Programme (MCC) now Courts and Tribunals Modernisation Programme (CTMP) as outlined in Section 4, namely that strengthened leadership and management would be actively encouraged under the National Enforcement Service Director and Regional Enforcement Managers. We recognise the need for this in view of the nature of bailiffs' work, their geographical spread and what we understand to be poor staff morale. We ask Court Service to consider whether such an approach could be adopted much sooner and well in advance of CTMP. Further we encourage Court Service to consider what can be done by way of performance related pay or other similar schemes further to incentivise the county court bailiffs.
We have been asked to consider and endorse the approach taken to the Public Service Agreement Target for enforcement and are pleased to do so. We recognise that differences in the powers and roles of enforcement agents mean that a direct comparison is not possible. Nevertheless we are strongly of the view that some statistical information kept as openly, uniformly and widely as possible is a very good thing. In particular we warmly welcome the Sheriffs' agreement to make information about their performance on enforcement of writs of fi-fa publicly available. This means that with effect from April 2002 information on the effectiveness of all court based civil warrant enforcement can be included in future Judicial statistics. The Group feels that it would be useful if more uniform statistical information about performance were maintained by other private sector bailiffs and made available to their customers on request. While it is beyond the remit of this Group we also welcome LCD's initiative of setting targets for other court based enforcement methods. We recognise the difficulties in so doing but feel that this would greatly assist court users.
We strongly endorse the planned approaches to tackle the need for more even and improved performance across the country by an exchange of best practice and improved communications among County Court bailiffs that we have heard about from Alan Phillips, Group Manager, East Midlands Group. We urge Court Service further to encourage and develop schemes for improved local communications with stakeholders, court users and local Advice Centres to strengthen their understanding of the role and services of bailiffs and awareness of other court based enforcement methods.
We welcome the ongoing meaningful and constructive dialogue between the Review Team and representatives from the Sheriffs. We broadly endorse and welcome the suggestions which we understand are currently under discussion with LCD for proposals to revise the existing Sheriffs' structure as a transitional arrangement or in advance of any future legislative change. We recognise that such change will take time. However, in due course, the work which is currently undertaken by Sheriffs must be open to others, subject to them attaining the necessary standards, qualifications and performance.
We urge the Review to address the differences between Sheriffs and County Court bailiffs; to address the need for a unified set of rules for warrants and writs identified in the Phase One Report so that bailiffs can negotiate payment by instalments. We welcome the initiative for taking this forward. We urge Court Service to address, as a priority, whether their bailiffs' efforts on enforcement are unnecessarily constrained by other duties and, as part of the CTMP, to look at payment methods generally and consider the need for County Court bailiffs to be able to accept payment by credit card.