Tribunals, Courts and Enforcement Bill [HL]

My Lords, I speak in support of Amendment No. 19, which seeks to leave out line 33 at page 210. I remind noble Lords whose attention may not necessarily be concentrated on this particular matter that line 32 states: "““A power to use force does not include power to use force against persons””." Line 33 continues, "““except to the extent that regulations provide that it does””." Those are slightly weasel words. In supporting Amendment No. 19, I refer to what the noble Baroness said on Report: "““There are no secret instructions. I would be more than happy to talk about how we intend to talk to the industry and share what we will be doing next with noble Lords as far as I can. There is no secrecy on my part; I find that practically impossible. We want to be as clear as we can. The greater clarity comes because we will be as open as possible. I reassure the noble Lord, and trust that he will hold me to that as we progress from legislation to action””.—[Official Report, 31/01/07; col. 272.]" I take the noble Baroness at her word. The noble Baroness has now been sent a copyof the Magistrates’ Courts Guidance—Search andEntry Powers (Domestic Violence, Crime and Victims Act 2004), which, as I said on Report, has 31 pages, on 15 of which paragraphs have been blacked out. One or two whole pages have been blacked out. They are secret instructions about which she obviously had not been informed. This was sent to the Reverend Paul Nicolson by the Access to Rights Unit at the DCA after he had sought a review of the department’s decision not to tell him when the last resort had been reached that would enable a bailiff to break into domestic property to enforce a fine, who makes that decision and under what circumstances. Secret guidance of this kind is particularly worrying because, although this Government will not implement regulations allowing restraint of debtors by bailiffs unless necessary, any other Government of whatever hue might slip them in without telling anyone, while letting the circumstances of their implementation disappear into the invisible guidance. The noble Baroness has also been sent a copy of counsel’s opinion on the department’s decision and the invisible guidance by Alan Murdie, a barrister trustee of the Zacchaeus 2000 Trust. It is strange enough that there should be any secret instructions to a bailiff about how to break into a domestic property and seize goods, but it also seems that the grounds for withholding information under the exemptions allowed in the Freedom of Information Act are extremely flimsy. The information is withheld because it would be likely to prejudice the prevention or detection of crime under Section 31(1)(a) of the Freedom of Information Act. Bailiffs enforcing a fine have a court order to collect the money owing. There is nothing in that order that requires them to undertake ““Hercule Poirot”” activity and the detection of crime. Also, that section of the Freedom of Information Act does not apply in the present context, because enforcement of a fine is a civil matter, not a criminal one. Constitutionally and legally, fine enforcement is the collection of a debt payable to the Crown. Mr Murdie also says that it is important to note that until 27 March 2006, the law of bailiffs relating to fine enforcement could be established in law with sufficient clarity, and could be discovered by any interested citizen and their representative. Nothing was concealed, and the enforcement of justice was an open matter. He suggests that the Domestic Violence, Crime and Victims Act and this Bill are not compliant with human rights law, in which the actions of the state affecting the citizen must be clear and be capable of being stated with certainty. He suggests too that there is a public interest in understanding what can be done if bailiffs act in a way, while enforcing a fine, that gives rise to a complaint. Unless citizens and their representatives know what procedures the Government require the bailiff to implement, they cannot know whether they have been kept. There are other points in his opinion, but I will not labour the point any further. I would be grateful if the noble Baroness could shed some light on a very puzzling and rather murky area of her department’s decision-making.