Legal Aid, Sentencing and Punishment of Offenders Bill

My Lords, this is a probing amendment supported by the Zacchaeus 2000 Trust—Z2K—and Citizens Advice. I am grateful to Z2K in particular for its help. The amendment would end legal confusion when bailiffs are on the doorstep of vulnerable and impoverished debtors and fine defaulters. The confusion arises between, on the one hand, the judgment in the case of R v Hereford Magistrates ex parte MacRae, which states that once magistrates’ courts have passed a fine to the bailiffs for enforcement it cannot be returned to the magistrates for reconsideration; and on the other hand, the current advice of the Ministry of Justice, which states that it can be returned to the magistrates under Section 142 of the Magistrates’ Courts Act 1980. In its briefing note, Citizens Advice says that when a county court issues a bailiff’s warrant—a warrant of execution—for enforcement of a debt, the debtor can apply to the court to have the warrant suspended and the court can make an order for payment of the debts by instalments. However, no such facility currently exists in the magistrates’ court for a person who is subject to bailiff action to enforce an outstanding magistrates’ court fine. Once the fine has been passed to the bailiffs for enforcement, the debtor has no clear channel to ask the court to suspend the bailiff action on the grounds of hardship or vulnerability. In such cases, the only option for a defaulter or the advice sector is to try to negotiate instalment payments with the bailiffs directly. However, as numerous cases seen by the CAB service show, bailiffs will often refuse to accept an affordable instalment. Instead, they demand full payment or large instalments that fine defaulters are unable to afford. Some of these cases highlight how the magistrates’ court gives these often poor and vulnerable defaulters no help or support, refusing to take the warrant back from the bailiffs. I shall give an example. A problem arose in a case dealt with by Z2K. A collection order was issued by Wycombe magistrates against a lone mother with three young children, threatening arrest, bailiffs, referral back to the court with the fine increased by 50 per cent, et cetera. She had failed to pay for her TV licence and then failed to pay the fine of £210 plus £60 costs levied in her absence by the magistrates. At the bottom of the collection order was written in capital letters: "““ONCE ISSUED A DISTRESS WARRANT CANNOT BE WITHDRAWN AND YOUR MONEY OR YOUR GOODS MAY BE SEIZED BY BAILIFFS AT YOUR EXPENSE””." In a panic, she borrowed £400 plus £260 interest from Provident. She then went to the court and paid the £270 she owed in an envelope into a machine, which did not give her a receipt. Later the court told her that she paid only £170 and it wanted remaining £100. She genuinely believed that she had paid and thought there must be a mistake by the court. Threatened by the bailiffs again, she reluctantly agreed to pay off the £100 at £5 a week, but no payments were received by the court, which then sent out the bailiffs. The bailiffs sent two letters and called twice, adding £150 to her fine. She described the conversation as follows: "““I tried to explain that I had already paid the fine he had to collect and that I shouldn't be paying it again, let alone another £150 fee for a bailiff. He said no way I could pay weekly, he would give me two more weeks to pay it. I tried to explain that I am on Income Support and that there was no way I could pay him £250 in two weeks. He said that was not his problem and he would be at my house at 1.00 pm on the 15th June. He phoned on the 14th. I explained again to him that I didn't have £250 and that I am on Income Support with three young children. He said pay me the money on Friday or I will get a locksmith and break into your house and take your possessions, he said it with quite an aggressive tone, which made me feel intimidated and quite scared. I then tried to contact Drakes [the bailiffs’ firm], however all you get is a machine with options none of which are to talk to someone””." I am sure that noble Lords have experienced just that, but not in such stressful circumstances. Since March 2006, bailiffs have had the power of forcible entry. There is a tendency to use the threat on the doorstep without proper consideration of the circumstances of defaulters. At this stage, Z2K heard of the case. It immediately wrote to the court asking for a rehearing of her case, but the court stood by the MacRae decision and refused to take the case back. Z2K then wrote to the Ministry of Justice pointing to page 9 of National Standards for Enforcement Agents, which gives bailiffs discretion to return cases in vulnerable situations. The MoJ replied that, "““enforcement officers can be prevented from continuing with the execution of a distress warrant. This can be done by a single magistrate””," under Section 142 of the Magistrates’ Court Act 1980. In the event, the court reheard the case on receipt of a written request. A McKenzie friend presented a statement of her income, expenditure and debts and related the circumstances of the case to the magistrates. The magistrates reduced the fine, arranged for it to be paid by deduction from her benefits at £5 a week, accepted that she had already paid £170 and ordered that she be repaid £40. The bailiffs were withdrawn without their fees being paid. That is part of the problem. The bailiffs enforcing magistrates’ court fines are private companies. They make their profit from the fees paid by the fine defaulters. If they return cases to the magistrates, they lose their fees, so they obviously prefer the MacRae judgment to the MoJ guidance. They should not lose money for doing the right thing, so the amendment proposes a fee which is paid whether or not the fine is collected. I understand the fee structure is under consideration and consultations are due to take place. Finally, the national standards for enforcement agents have been issued by the MoJ since 2002. They have proved ineffective because there is no duty in law on bailiffs to abide by them. In many cases that would otherwise be referred back to the courts, the defaulters or their advisers could negotiate reasonable instalments of the fines with the bailiffs if the rules were enforceable, otherwise the pressure on bailiffs to collect their fees for their managements and the fines for the courts can wreak havoc in the finances of impoverished lone parents, where the fine for TV licence evasion or fare evasion is disproportionate, and there is no avenue to seek the justice of proportionality so precious in British law. This is a modest amendment, which seeks to clarify an area of confusion in the law and to do so in the interests of often very vulnerable citizens. I hope that the Minister will be able to give it sympathetic consideration or, if it is defective, to come forward on Report with an alternative amendment. In doing so, she would be making good a promise in the coalition agreement that: "““We will provide more protection against aggressive bailiffs””." I beg to move.