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Summary of proposed legislation to allow enforcement agents (bailiffs) to forcibly enter domestic properties: Following the issuing of a warrant by a magistrate, bailiffs may forcibly enter domestic properties to seize control of goods. The classes of debt to which a Forcible Entry Order may apply - parking fines, council tax, television licence fee and other judgement debts have not yet been clarified. The minimum debt that can be made the subject of such orders has also not yet been clarified. The proposal has wide ramifications for society, because most debtors who will become the target of such orders will not own the property they live in, but will occupy various types of shared or rented accommodation.
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TO DAVID ILIC
Policy Officer
Civil Enforcement Branch
Department of Constitutional
Affairs.
9th September 2004
Dear Mr Ilac,
Thank you for your letter of today’s date, which I have set out below in an abridged form in brown text . I have appended my responses to the relevant sections of your letter in blue text. Your letter begins:The Government’s proposals to allow bailiffs (or enforcement agents, as they will be known) to enter domestic multi-occupied premises by force, and the possible effect of those proposals on the human rights of third parties.
As was mentioned, all legislation and proposed legislation is scrutinised in conjunction with the Human Rights Act as a matter of course. Compliance factors are therefore an essential element of policy making and I can assure you that proposals for changes to bailiff law governing powers of entry will have to meet that requirement, as indeed will all proposed changes to enforcement law. The detail of the forcible entry proposals is still being worked on and the aspects relating to third parties are already factored into these deliberations.
One aspect on which deliberations are complete concerns the protection offered to third parties in the event that their goods are seized rather than those of the debtor alone. Current provisions allow third parties to prove their ownership before a court within seven days of the goods being taken, and this provision will be carried forward to any new enforcement system that is put in place.
This provision exists as a limited safeguard to protect against third parties’ goods being mistakenly seized, but it is supplementary to the occupier’s basic common law rights to refuse entry to the bailiff, or to revoke at any time the licence that allows him to remain on the premises. The seizing of goods normally takes place with the consent and in the presence of the debtor, which helps to minimise the wrongful seizure of property.
In removing the common law right to refuse entry to the enforcement agent, the primary safeguard governing wrongful entry and seizure is eroded, and an inquisition involving the innocent occupiers of a property will invariably need to take place to establish the true ownership of the items to be seized, with the enforcement agent being the arbiter of the impromptu hearing.
It can be envisaged that purchase receipts – even when they do occasionally exist and are available to hand – may not have been issued in the name of the occupier, and that many household items may be gifts. It is very difficult to prove ownership of goods especially after they have been seized; and bailiffs themselves are well aware of the fact that ‘possession is 90% of the law’.
It is therefore no consolation for the innocent occupier to know that he may recover his goods by proving ownership before a magistrate. This provision is neither a remedy for the injustice created by carting away the wrong goods; nor is it a support for the argument permitting forcible entries.
Judges will need to consider various issues when looking at each application for forcible entry to domestic premises. You raised particular concern about one of these: how one ascertains that the debtor lives at the property covered by a warrant of execution. As you will see from Chapter Three of the White Paper Effective Enforcement, there is a proposal to develop a Data Disclosure Order – a mock-up of the proposed form appears on page 63 – and this includes questions relating to the debtor’s address. In broader terms, the proposal to improve both the quality and quantity of information available will help creditors decide which of the available enforcement methods is likely to be the most effective and make it possible to identify much earlier those debtors who cannot pay.
This is all well and good, but the Form A (Data Disclosure Order) to which you refer merely seeks to establish from third parties such as Government departments, banks and credit agencies, the most recent address recorded for the debtor. This is not the same as establishing for the purpose of permitting a forcible entry that the debtor indeed resides at the given address.
Your colleagues need to dwell on the consequences of permitting forcible entry to multi-occupied dwellings such as terraced houses, flats, blocks of flats and other properties which are divided up into separate habitable areas. In many cases, a debtor may only be residing (if at all) in one part of such properties
The right to refuse entry to a bailiff is a safeguard which helps to prevent wrongful entries or seizures occuring; and whenever it is exercised the presumption that the debtor must therefore be recalcitrant may not apply. The occupier or landlord may know nothing about the debtor's financial circumstances and may simply regard the entry of bailiffs into the family home as an unwarranted intrusion.
A Forcible Entry Order would be unable to safeguard the rights of innocent third parties.
I must emphasise that judges will be required to look at applications for forcible entry individually. On the matter of whether a debtor, recalcitrant or otherwise, has suitable goods on his or her premises to satisfy the debt, I again refer you to the criteria listed in the letter of 23 July 2003.
This expounds the principle that enforcement agents should only seize the debtor’s goods if their sale is likely to satisfy the debt; but how is it possible to know what goods are on the premises unless peaceful entry has been obtained? Where peaceful entry has not been permitted by the occupier, no one - least of all a magistrate - would be in a position to know for sure if any of the debtor’s goods are on the premises, or indeed their possible value. It would be wrong to permit enforcement agents to break into the homes of citizens in order to find out if there is anything worth taking; and it would be even more reprehensible to permit them to repeatedly return to a property until they have obtained their pound of flesh.
A Forcible Entry Order would therefore simply become a tool in the hands of the enforcement agent permitting him to find out by force if there is anything of the debtor’s goods worth taking at a particular address; and it presupposes that there is a fool-proof method for determining a debtor’s correct place of abode.
The violation of any home by making a forcible entry is bound to cause unwarranted distress to the occupiers and to everyone caught up in the process (the young, elderly, and even neighbours will be affected). It will not be easy to explain to the crying and frightened child that what is being carried out is in the name of so-called 'justice for creditors'.
I turn now to the issue of the "recalcitrant debtor". You state in your email that this person is a myth. You may find it interesting to read the research conducted for DCA by Nicola Dominy and Elaine Kempson, into people who cannot pay and people who will not pay. An executive summary version of this research can be found on the Department for Constitutional Affairs’s Internet site at http://www.dca.gov.uk/research/2003/4-03es.htm
I have read this report which could have been written by an ‘A’ level sociology student, and I can only hope that your department is not formulating policy based on such vacuous reports. The ‘report’ contains nothing of any substance that commonsense and experience does not already confirm; and there is certainly no need to move away from one’s desk to interview debtors to ascertain such information.
The young law graduates at the Department of Constitutional Affairs, who are currently fleshing out the details for these proposals for the benefit of society, do not appear to appreciate that what is being recklessly proposed is an extreme measure for recovering paltry sums of money from members of the public. If a debt is larger than £750, a Statutory Demand followed by a Bankruptcy Petition can easily be raised, with criminal sanctions available to the Official Receiver to punish any ‘recalcitrant debtors’.
I cannot conceive of any class of debt being so serious as to warrant kicking down somebody's door with a view to seizing the occupier's tables and chairs. If the utilitly companies are owed money they can cut off supplies, and if parking fines are owed, a debtor's car can be impounded. The process of debt collection in a civilised society should not be based on violence, with enforcers able to violate the homes of citizens.
This is especially so when you consider that those debtors who are the stated targets of the proposed legislation are most unlikely to be property owners in the full sense of the word. If a debtor has any cash, land or cars – the most valuable assets – these can be traced, charged or impounded under existing legislation.
If none of these assets are available for seizure, the target debtor is invariably going to be on the bottom rung of the economic ladder. There is no point in creating a sledgehammer piece of legislation to crack such nuts, especially as the blows will inevitably fall on innocent heads.
It would be apposite to remind Baronness Scotland QC that it is better to let 100 or even 1,000 recalcitrant debtors go free than to violate the home of 1 innocent citizen.
I hope your colleagues under the esteemed guidance of the Lord Chancellor will ponder the wider consequences of the proposed legislation on society.
Yours sincerely,
John Aidiniantz
londonlinks@post.com
www.homepage-link.to/justice
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The Department for Constitutional
Affairs can be reached at the following web address: Selborne House Lord Irvine and Baroness Scotland QC have been succeeded by Lord Falconer and David Lammy MP. |
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