ANNEX D

A proposed model for a statutory self-financing scheme

THE ENFORCEMENT SERVICES COMMISSION

Objective

To control the behaviour and license the powers of enforcement agents so that judgments are enforced effectively and fairly.

Structure and status

The Enforcement Services Commission (ESC): a self-financing statutory scheme — through a Non-Departmental Public Body. A Commissioner to be appointed by the Lord Chancellor, (after consultation with the Home Secretary), to hold office for 5 years and to be eligible for re-appointment at the end of that period. The Lord Chancellor to appoint a Deputy Commissioner. Subject to the approval of the Lord Chancellor, the Commissioner may appoint staff as appropriate. It seems likely that a compact regulatory body of 8—10 people drawn from the enforcement sector, the court service, independent consumer bodies, public interest bodies and business sector would be suitable. The Commission could seek advice and consult others, as they considered necessary.

The Commissioner is a corporation sole, is to hold office for 5 years and is eligible for re-appointment at the end of that period. The Commissioner holds office on terms and conditions set down by the Lord Chancellor.

The Enforcement Services Complaints Board (ESCB), to consist of legally qualified members (or those deemed to have substantial experience in enforcement services or the law relating to enforcement services), to be appointed by the Lord Chancellor. The membership of the Board could be drawn from a pool of approved members to meet and work as necessary and when required to do so by the Commissioner in order to consider complaints and fulfill their functions. The complaint would initially be dealt with by the bailiff company, bailiff organisations or creditor employing the bailiff. The results of the internal complaints process (by both public sector bodies and private sector organisations) would be brought to the attention of the ESCB.

The Lord Chancellor may make rules relating to the procedure and practice of the Complaints Board in particular to address the powers to act on, or in pursuance of, a complaint or notification of a complaint and avoid double jeopardy.

Regulatory functions of the Commission could include:

• to ensure that those who provide enforcement services are fit and competent to do so, and that no person may provide such services unless qualified to do so under the terms of the relevant primary legislation.
  • to be a qualified person one has to be:
    • licensed by the Commissioner;
    • a member or an employee of a body which is a registered person, and working under the supervision of such a member or employee for training purposes in order to become a licensed holder;
    • is certified by the Commissioner as exempt, or is employed by or works for such a person;
  • to license individuals and companies, partnerships etc.;
  • to approve applications for designation as an accredited professional body with responsibilities for providing accredited training, representing their membership, providing a source of legal advice or business support and making proposals to the Commissioner regarding fees. It is thought that the existing professional associations may wish to take part in such a scheme, there could also be others.
    • each designated body must pay a fee to the Commissioner.
  • in accordance with the relevant primary legislation to introduce and oversee a national scheme in the future to permit licensed enforcement agents to have access to low-level data for warrant enforcement.
  • in accordance with principles enshrined in the relevant primary legislation, to consider and recommend, subject to Lord Chancellor's approval, a fee scale, (or scales) for enforcement. The designated professional bodies, or licensed persons, could propose these and the Commission would take any further advice or information into account which they consider appropriate to assist them.
  • to make rules regulating any aspect of the professional practice, conduct or discipline of licensed persons or those employed by or working under the supervision of licensed persons (mandatory for those licensed).
  • to prepare and issue a code setting standards of conduct for those to whom it applies (mandatory for those licensed).
  • to establish a scheme for the investigation by him/her, or the Commission, of relevant complaints made within the provision of the scheme;
    • the Commissioner may refer a disciplinary charge to the Complaints Board. The Board may also hear an appeal by an aggrieved person against a decision of the Commissioner.
  • to exercise the power of entry (in person or via an agent) to premises if investigating a complaint.
  • upon determination of a complaint:
    • record it and consider it when the person next applies for a license, or
    • require the licensed person to apply for a continued license immediately
    • transfer it to the designated professional body. The Commissioner may give directions setting a timetable for considering the complaint, or taking disciplinary proceedings in connection with the complaint
  • the Commissioner may refer a disciplinary charge to the Complaints Board.
  • the Complaints Board may also hear an appeal by an aggrieved person against a decision of the Commissioner.
  • different activities and functions could require different levels of training and expertise - and so different types of license might be appropriate.
  • in determining suitability for award of a license various issues may be considered relevant e.g. a criminal record or history of bankruptcy, whether the applicant operates any other business, which could cause a conflict of interests - possibilities being the purchase of debts, running a removals firm, or an auction house, providing credit references.

• The Commissioner's Rules
• Code of Standards
• Complaints Scheme
• Guidance to Advisers: Competencies

The Rules could state that: