Chapter 6: Information and data sharing
6.1 Access to ‘better information would allow enforcement efforts to be targeted towards the procedure that is most likely to produce results for the creditor. It would also make it possible to identify, at an earlier stage, those debtors who do not have the resources with which to pay the debt in question, and allow creditors to consider whether further action against the debtor can be justified’58. This would contribute to meeting the aims of the Enforcement Review to make enforcement:
6.2 As the Report of the First Phase outlined, the current system in the civil courts is reliant on information being supplied by the debtor and/or obtained by the creditor. Creditors have full control over the enforcement process and it is up to them to gather any necessary information and decide which method of enforcement to pursue. The bailiff or court then carries out the chosen enforcement procedure. The provision of information is almost entirely reliant on the compliance of debtors with existing procedures. If debtors do not provide the information voluntarily, there are mechanisms in place which attempt to force them to do so, such as the oral examination procedure, but the process inevitably takes time. Even if debtors do respond, it can be difficult to establish whether the information they are providing is accurate or truthful. The problems with the current situation highlight the need to introduce mechanisms to obtain controlled access to information direct from other sources, thereby cutting delay, and increasing the likelihood that the information is reliable.
6.3 The Report of the First Phase proposed an enforcement system with two entry points to the enforcement process, dependent upon the extent of the creditor’s information about the debtor. The Report proposed retention of the existing system whereby creditors can, if they have the relevant information, apply directly to the court for a particular enforcement procedure, but suggested that "creditors who do not have good information […] would be able to apply for an oral examination of the debtor […] but strengthened by access to information from third parties. Requests for information would be made by the court and information would be returned to the court, not to the creditor." The possibility of introducing an additional layer to the enforcement process — an ‘information officer’ responsible for delivering the information handling aspects — was proposed under the above scenario.
6.4 The extension of the remit of Phase Two of the Enforcement Review has enabled us to consider data sharing and information in a wider context. The Government is therefore considering how it would operate for a registered single profession of enforcement agents who are officers of the court but not necessarily employees of the court, and who are subject to a regulatory structure which governs their activities and behaviour. Whether there should be separate ‘information officers’ who are part of an enforcement agency is a question that has been subsumed within the wider issue of what constitutes an enforcement agent.
6.5 A two-stage procedure determining access to information, the first stage being available to the regulated enforcement agent, and the second being an expansion of the current court-based oral examination procedure, is now being considered and constitutes the main focus of the proposal in this Paper. We propose that:
1. the regulated enforcement agent would, on the basis of a court judgment against the debtor, have a limited ability to confirm that the data provided by the creditor is up to date, in order for the enforcement agent to make initial enforcement contact with the debtor,
2. post wilful non-compliance by the debtor, a Data Disclosure Order could be sought by the creditor through application to the court. The Data Disclosure Order would involve obtaining information from third parties.
6.6 The procedure envisaged in stage one of the process outlined above is based on the arrangements now in place in the magistrates’ courts. As part of the package of measures transferring responsibility for warrant execution from the police to MCCs, powers were taken in the Access to Justice Act 1999 to allow magistrates’ courts to check whether other Government agencies hold a more recent address for fine defaulters and those in breach of community sentences. Section 94 of the Act tightly limits the information that may be obtained in this way to those details that allow the offender’s whereabouts to be traced: i.e. name, address, date of birth, and National Insurance number. The information may only be used for the purposes of executing a warrant and it may only be disclosed to court employees or the person charged with executing that warrant. It is an offence to disclose the information, whether intentionally or recklessly, to any other person or for any other purpose.
6.7 Section 94 also empowers the Lord Chancellor to designate by order relevant public authorities from which the magistrates’ courts may request this information. The first such order came into force on 8 January 2001 and allows courts to exchange information with the then Department of Social Security59. The DSS was chosen first as their records are considered to be of most use to the courts. Further orders permitting exchange of information with other Government agencies may follow.
6.8 Under the arrangements agreed with the DSS, courts must ensure that all other reasonable lines of enquiry have been pursued to locate the subject before making a request. At present the system is paper-based and all requests must be routed through the MCC’s Justice’s Chief Executive or his/her nominee. The DSS aims to respond to requests within 10 working days and will notify the court whether its records show a new address for the offender, a different address to that held by the court, the same address, or whether there is no trace of the offender from the information provided.
6.9 These new arrangements were trialed at four magistrates’ courts in England and Wales between 8 January and 31 March 2001. In around 50% of cases, the DSS provided new information to that held by the court. These arrangements have now been extended to all magistrates’ courts in England and Wales.
6.10 Under the above procedure access to, and transfer of, information occurs only after a warrant has been issued by a magistrates’ court and under close supervision, thereby ensuring tight control and accountability of those carrying out the specified functions. Similar proposals for enforcement agents would also need to develop within a similar structure.
6.11 The second stage to the proposed procedure to obtain information involves an application by the creditor, through the court, for a Data Disclosure Order. Primary legislation would be required to enable the courts to initiate a process to apply for information, additional to or corroborative of that supplied through the existing oral examination procedure, as to the debtor’s assets, employment status and status in regard to receipt of benefits, from designated third parties, including Government Departments, banks and building societies. The power of the court to obtain such information would only be accessible following wilful non-compliance by the debtor with the order of the judgment against him, wilful non-compliance with previous enforcement action, or the provision of false information through oral examination.
6.12 The proposed Data Disclosure Order would enable the court to apply for specific information from designated third parties in carefully defined circumstances, with direct judicial authority, about the address of the defaulter/debtor’s employer, whether the defaulter is in receipt of benefits and the address to which those benefits were being sent, and the extent of the debtor’s financial assets in bank or building society accounts. This would enable the court to make greater use of attachment of earnings orders, or deductions from benefits, and provide additional information as to addresses for those enforcing warrants. It is not envisaged that the information relating to assets or employment status would be passed directly to enforcement agents or creditors. Information relating to addresses would be handled in the same way as outlined in stage one, above. The information obtained via the Data Disclosure Order would be used to facilitate enforcement procedures determined by creditors through the court process and would be subject to the parameters and limitations established by the legislation.
6.13 The Government accepts that any group that has or is given legal powers to require information should have those powers clearly and precisely set out in legislation. Ideally those powers should be subject to judicial scrutiny, in the judgment process (e.g., the judgment could include reference to the disclosure of low level data being appropriate if the debt is not paid or the warrant is issued), through direct application to a court, or in the definitions of agents’ actions. Preferably any power to require information should be granted after judicial consideration.
6.14 The concept of the Data Disclosure Order could be extended to magistrates’ courts to allow them to check employer’s details and whether a fine defaulter was in receipt of benefits. Again, this would allow greater use of attachment of earnings and deductions from benefits.
6.15 We therefore propose to consider access to information in the context of proposals to regulate enforcement agents, with reference to:
| In the light of the details outlined in this chapter we are seeking views on the proposed legislative provisions relating to access to information. |
Q.44 Should an intermediate stage be introduced to the procedure to acquire information, e.g. to obtain information from other Government Departments as to a debtor’s employment status and/or the nature and extent of his assets without precise details of income or figures?
59 See section 93 of the Access to Justice Act 1999 and SI 2000 No 3279, The Approval of Enforcement Agencies Regulations 2000 for what constitutes an Approved Enforcement Agent. The Enforcement of Warrants (Disclosure of Information) Order 2000, SI 2000 No 3277, specifies the Secretary of State for Social Security as a relevant public authority.
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