Tribunals, Courts and Enforcement Bill [HL]

moved Amendment No. 74: 74: Clause 55, page 40, line 32, leave out ““certificate”” and insert ““licence”” The noble Lord said: My Lords, I shall speak also to Amendments Nos. 75 and 77. I have been gazumped here by the Government, who have decided that rather than moving in the direction I have been urging them, they will do what I hope is much the same thing but in their own way. That is one of the many privileges of government and I shall not seek to rail too hard against it. However, I would be enormously grateful if the noble Baroness could go through the crucial requirements in my amendment and give me a reassurance so far as she is able that, following the principal route she is outlining—to give this power and responsibility to the Security Industry Authority—the SIA will be able to match up to those requirements. Let me outline the principal matters that interest me. The authority should be able to license bailiffs, and clearly that will be possible. One can stretch regulations in an amazing way. You can read through the Private Security Industry Act and not get a clue that that was ever intended when it was passed by Parliament. The authority should be able to establish standards by introducing requirements for licensing, codes of practice and other similar matters. I understand that it has the power to do that, although, as I will explain in a moment, it has not always chosen to exercise that power in its other jurisdictions. I am keen that it should set standards and investigate complaints. This may be the one area where we fall out, but I shall come back to it. Where there has been wrongdoing, the authority should be able to impose financial or other requirements on those who have misbehaved. In other words, bailiffs who do not go along with the standards or rules should be dealt with in a way that discourages them—ideally, in the early stages, quite severely discourages them—from trying such things again. That is absolutely essential to set the major companies in the industry right. I am sure that if they believe there is a regulator with teeth, they will very effectively regulate themselves in a way that they do not at the moment. The authority should be able to liaise with whatever systems are put in place for the government-employed enforcement agents in a way which produces a common set of standards and a common appearance from the point of view of a debtor who is confronted with an enforcement agent or bailiff. Those are the key things that the regulator should be able to do. I hope that the Minister will be able to give me comfort that that is the direction in which her alternative is headed. The Security Industry Authority does not come to this party with a particularly entrancing reputation. It has in carrying out its existing duties a track record of being extremely slow to issue licences. For example, when the licensing of door supervisors and wheel clampers came into force, a very high proportion of the industry was not registered at that time. This was entirely due to the extremely slow way in which the SIA had proceeded. If this happens with bailiffs, of course, it would have a significant impact on government revenue and would also be undesirable in other ways. The SIA’s current policy is that if 80 per cent of an approved contractor’s staff are licensed, the rest of its staff can act as if they are licensed. That would be an extremely undesirable practice in the case of bailiffs. The SIA is the subject of great criticism at present in regard to wheel clampers because, although it issues licences, it does nothing to regulate practice. If this organisation is to be in charge of bailiffs, it must make sure that bailiffs follow the guidelines and do something about it if they do not. When the SIA investigates a complaint it does not tell the complainant of the outcome—which I find quite extraordinary—even when the complainant was the victim of illegal action. Given the nature of enforcement action, I would find this attitude completely unacceptable were it to be carried forward into the enforcement agency field. The SIA will often refuse to investigate a complaint about the action of an unlicensed person because it regards it as a police matter. So you come down to trying to persuade the police to investigate whether someone is passing themselves off as a bailiff. We need to have a regulator that is effective from the debtor’s point of view. If a debtor is visited by a person who says that he is a bailiff but is not, the SIA ought to be the place to which the debtor turns. It is refusing to do this in areas that it currently regulates. I find that kind of history difficult to deal with. As it is a Home Office agency, perhaps I should not be surprised by some of these matters, but, none the less, if we are going to hand it this new important area of regulation, I would like to be sure that the SIA will come up to scratch. I and others draw some comfort from the reappearance of Ann-Marie Goddard on the scene. She has a very high reputation in the industry and I hope that presages things going well. I turn briefly to the elegant purple document, Regulation of Enforcement Agents. Paragraph 31 explains that abuse may be more common than is known because, "““debtors are not aware of their rights””." That is one of the reasons why I want the powers of entry to be more clearly set out than they are in the Bill. If the Bill remains as it is, I would look to the regulator to set out these matters much more clearly, in plain English, so that everyone can understand them. The document states that the bailiff industry was supportive of the SIA, but that is not my experience. The document throws a very surprising light on the nature of the British population and it would appear that there has been an alien invasion. Page 17 refers to approximately 1 per cent of the population of England having no gender because it is listed as ““male””, ““female”” and ““other””. I do not know who qualifies for ““other””. I understand that it means ““unknown””, but ““other”” is interesting. I am worried that paragraph 55 means that the Government are looking at an agency that does not have real teeth. I hope that when the agency has been up and running for a while and the industry is by and large well behaved, teeth can be applied extremely infrequently. It is important to get matters right to begin with. As the Minister knows, because I and doubtless many others have spoken to her about it, there is currently a level of abuse because of the lack of regulation that is completely unacceptable. When the agency starts up, it will need to be seen as a toothy agency. I believe that it will not need to continue to be seen that way, but it needs to have real powers to begin with. My real difficulty with the document relates to the second bullet point in paragraph 11. It is stated on page 7 that the regulatory body would not be responsible for overseeing a complaints scheme or establishing a complaints board. It continues: "““This is due to a legal concern in respect of Article 6 of the European Convention on Human Rights that complaints should not be allowed to bypass the court, even where a right of appeal on the decision to the courts exists””." What is the basis for this and why, if it is true, have the Scots decided to do the exact opposite? Paragraph 67 of the Bankruptcy and Diligence etc. (Scotland) Act 2007 establishes an investigatory power of the kind that I am looking for. I am completely at sea as to what aspect of the Human Rights Act makes this perfectly ordinary ombudsman function illegal. It is crucial that it should be part of the regulatory authority’s powers. If a bailiff does something wrong, the person likely to complain about it will be either someone who is chronically vulnerable or someone who is seriously short of time. Those are generally the reasons why people get themselves into this sort of mess. They have to have a way of complaining about what has happened to them that does not involve lengthy and complicated court procedures, the very prospect of which will defeat most people. There has to be an easy means of complaint, where you say, ““This has happened. This is wrong””, and you find you have a friend who will help you investigate it. They might chuck you out of court if you are being unreasonable, but someone has to be there on your side. That is a crucial role of any regulator, and I hope I can get some support on this. I will return to it at Third Reading if I cannot. I beg to move.