Executive Summary
The Enforcement Review arises out of the Government's commitment to improving access to, and the efficiency of, civil justice in England and Wales. It is based on the premise that those creditors who have established a legitimate claim ought to be able to pursue it through a straightforward and accessible system, while debtors who genuinely do not have the means to pay ought to be protected from the oppressive pursuit of their debts.
Chapter 1: The Enforcement Review
This chapter sets out the terms of reference and progress of the Review since the Lord Chancellor announced it in March 1998. The remit of the Review was broadened in March 2001 and looks at structures for, and regulation of, civil enforcement agents generally, not just those within the High Court and county courts. This wider approach offers the best prospect of achieving a fundamental improvement in the enforcement system.
Following this extension of the remit, there is an opportunity to take a clear and strategic approach to look at the possibility of a new regulatory structure and the mechanisms by which it could be smoothly introduced to encourage effective, fair, and appropriate enforcement and improve service delivery. This chapter considers both the drivers for change and the environment into which such changes would be introduced. It concludes that a market-based strategy is needed which ensures the industry is competitive, innovative, professional and open to new entrants, but aware of and responsive to the Government's commitments to access to justice, and to tackling crime and social exclusion.
Chapter 2: Structure for the regulation of enforcement services
This chapter focuses on identifying and considering options for the regulation of civil enforcement agents, embracing both public and private sector; namely: no change; increased court based direct regulation; self-regulation (voluntary and compulsory); and a self-financing statutory regulatory scheme. The Paper identifies a genuine commitment within the industry and the public sector for improved standards of service and an acceptance from the private sector of the need for regulation.
As part of the development of option 4 on statutory regulation, the paper centres its analysis on the model of an Independent Enforcement Services Commission. Preliminary analysis suggests that this model could deliver an effective and appropriate structure within a statutory regulatory framework. This option could provide adequate safeguards for the vulnerable without burdensome regulation that is costly to administer or restrictive to business. It could also provide the necessary safeguards to permit regulated access to more information and increase the effectiveness of the enforcement process itself. The Review Team is seeking responses to the merits of the four options and to the possibilities raised by exploration of the Enforcement Services Commission model.
Chapter 3: The delivery of enforcement services
This chapter sets out the Lord Chancellor's commitment, as part of the Government's Public Service Agreement, to improve the effectiveness of civil court enforcement and to improve the level of public confidence in the criminal justice system. It identifies the opportunity for a regulatory structure to improve performance and set certain minimum service standards across the whole enforcement sector but recognises that there is not yet enough information on which to base firm proposals about the most appropriate methods by which enforcement services should be provided. Consequently, an Advisory Group drawn from the voluntary, public and private sector to provide independent expert advice on service delivery and market evaluation will be established to inform our work.
Chapter 4: Single piece of bailiff law
This chapter concentrates on the legal powers that enforcement agents should have to undertake enforcement action, focusing on the recommendations made by Professor Beatson in his Independent Review of Bailiff Law1. He strongly recommends a single new piece of legislation to regulate bailiffs and identifies a clear need for a regulatory framework. His recommendations took into account a whole range of bailiff activity from identification of bailiffs to guidance on forcible entry.
We are proposing to accept most of the recommendations as they are sound both in policy and practical terms. Chapter 4 concentrates on discussing areas which we believe could benefit from further consideration. It seeks further views on some particular issues including notice, identification of bailiffs, entry, distrainable goods (and exempt goods), seizure and impounding, and remedies.
This chapter refers to the complexities, scope for exploitation in and inadequacies of the existing fee structures and the need for radical change. These problems are well known to those in the industry, to major creditors and those who advise debtors, but not necessarily to smaller creditors or many of those facing up to the reality of debt. The Government is committed to ensuring that the new structure, or fee scales within it, does not simply replace one bad system with another. A clear set of principles for fees is proposed, which will be enshrined in primary legislation. The proposed role of the Commissioner would include setting fee scales with the approval of the Lord Chancellor, and after consultation with stakeholders.
Chapter 6: Information and data sharing
This chapter outlines a proposed two-stage process for improving access to information in enforcement. The current situation is wholly inadequate and reliant on the creditor initially and then on the compliance of debtors to provide accurate or truthful information. Delay is inherent; the new procedures could introduce swift mechanisms to obtain controlled access to information direct from other sources, within Government and from third parties such as banks and building societies. This would streamline the enforcement process, and provide reliable information for effective enforcement.
A two-stage procedure will involve allowing access to information by a regulated enforcement agent in tightly defined circumstances, and expanding the range of information about the debtor that can be sought by a creditor in order to facilitate enforcement, through the introduction of a court-based Data Disclosure Order. We propose that
1. the regulated enforcement agent, as an officer of the court, would 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 contact with the debtor
2. after 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 could involve obtaining information from third parties.
We therefore propose to include in the legislation covering the reform and regulation of enforcement agents, reference to clear, precise and limited powers to obtain information, subject to scrutiny. The model for such a process would be based on the arrangements now in place in the magistrates' courts.
1 Professor J. Beatson QC, Independent Review of Bailiff Law: A Report to the Lord Chancellor, Lord Chancellor's Department, July 2000 (Beatson, Review).
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