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Vehicle Immobilising

As a result of the lobbying of the Security Industry Authority (SIA) and Government departments by the ESA and ACEA, and following a meeting last week between representatives of the SIA, ESA and ACEA, the SIA has reconsidered the licensing of enforcement agents for the immobilising and/or removal of vehicles from private land. Following last Monday's meeting the SIA took further advice from the Treasury Solicitor on this matter and has issued the following statement: "The costs associated with the removal and secure storage of a vehicle seized during the execution of a warrant do not constitute a charge imposed specifically and solely for the release of the vehicle. Therefore, as they are considered a legitimate cost of the warrants' execution, and not a 'release fee', such activity is not licensable under the PSIA 2001. "The position in respect of a separate fee specifically for the release of the vehicle that does not relate to the cost of executing the warrant would however still fall within the remit of the PSIA and be a licensable conduct." In brief, provided enforcement agents do not charge a specific fee for the release of a vehicle immobilised on private land, they do not fall within the provisions of the PSIA and therefore, do not require a licence. The SIA has also stated that it has circulated this decision to its compliance and investigation teams so that they are fully aware of the rights of enforcement agents.

Tribunals Courts and Enforcement Bill

The Tribunals Courts and Enforcement Bill, which was included in the Queen's Speech on 15th November 2006, was given its Second Reading in the House of Lords on 29th November. Many of the peers expressed concern and disappointment that the Government had not included the provisions for a regulatory and licensing regime as originally set out in the White Paper: Effective Enforcement. Concern was also expressed about the proposal to exempt county court bailiffs and other Crown employees who carry out enforcement work from the need to hold a certificate. The Government has previously stated that it intends the new regime should apply to enforcement agents in both the public and private sector, but now appears to have gone against its previously expressed intentions. It claims that Crown employees are subject to civil service disciplinary procedures. However, this is to completely miss the point. The general public will have little confidence in a system where there is one rule for the private sector and another, seemingly less rigid rule, for the public sector. The ESA fully supports those peers who asked the Government to reconsider its decisions about omitting regulation from the Bill and granting exemption from certification to Crown employees. The Grand Committee stage of the Bill will take place on 13th and 14th December.

Tribunals Courts and Enforcement Act 2007 -

The Tribunals Courts and Enforcement Act 2007 received the Royal Assent on 19th July 2007. However, for the present there will be no change to the enforcement industry. The Ministry of Justice (MoJ) will be working on a consultation paper in respect of the regulations referred to in the Act and will publish this in the Autumn when Parliament returns from its Summer recess. There remain a number of issues of concern to the industry including the proposals for an up-front fee and a suggested time-limit of three months for taking control of goods. The ESA will be lobbying the Government on these and other issues during the coming months. Earlier in the year the Government published a consultation paper on the regulation of enforcement agents. Three options were put forward in the paper; no change, a dedicated regulatory body, and the Security Industry Authority (SIA). The Government has made no secret of its preference for using the SIA. It will be publishing its comments on the response to the consultation paper fairly shortly but it is expected to come down in favour of using the SIA. Assuming this to be the case the Home Office will table an Order in Parliament under the provisions of the Private Security Industry Act 2001 to extend the authority of the SIA to regulate the enforcement industry. The Order will be tabled either in the coming Autumn or the early Spring of next year. Bearing in mind the previous track record of the SIA the enforcement industry is concerned as to whether it will have the ability to become the regulatory body. This is especially so bearing in mind that it is on record as describing itself as a licensing authority and NOT a regulatory body. This Association will be monitoring developments very closely over the coming months.

HMCS Consults on Regulations -

Her Majesty's Court Service (HMCS) has begun the consultation exercise which should eventually lead to the regulation of enforcement agents. Following the passing of the Tribunals Courts and Enforcement Act 2007 HMCS is now consulting with stakeholders, including the ESA, in order to take forward the process of creating regulations. The Association, in speaking to officials, has voiced concern over a number of issues including the up-front fee, the proposed three month time limit for taking control of goods, forced entry, the sale of goods following seizure and the use of the Security Industry Authority as a regulatory body. HMCS has indicated its willingness to listen to stakeholders' concerns and the Association is hopeful that, whatever the final outcome may be, it provides a system which is beneficial to creditors and debtors as well as enforcement agents.

HMCS - New Fee Structure

After what seems an age HMCS and the Ministry of Justice have begun work on introducing new regulations for enforcement agents following the passing of the Tribunals Courts and Enforcement Act 2007. HMCS has sent out forms (known as Requests for Information (RFIs)) to bailiff firms requesting information on the work they do, how much it costs them and the charges made for carrying out such work. The purpose of the information gathered from the forms is to provide material to enable HMCS to formulate a fee structure for enforcement. Ideally, this will be a clear, simple to understand system which will remove many of the current anomalies in the present fee structure. HMCS will subsequently publish a formal consultation paper setting out its proposals and asking for comments. In addition to the form, the ESA and ACEA have jointly submitted a paper setting out comprehensive details of a fee structure which we believe will satisfy the main concerns of government. Rather than making a charge for each individual act, the paper puts forward a scheme for charging a fixed fee for groups of actions which should ensure a) that the bailiff is fairly remunerated and b) that debtors are absolutely clear as to what they will have to pay and the reasons they are paying it. The paper has been endorsed by the BPA.

Ministerial Statement - TCE Act 2007

Ministers have made an announcement following the review of Parts 3 & 4 of the Tribunals Courts and Enforcement Act 2007. In written statements presented to both Houses of Parliament Ministers said that they had decided not to implement Part 4 of the Act but have decided to implement Part 3 save for those provisions which would have extended bailiffs' powers of entry. Three specific measures will be initiated shortly including the creation of an on-line bailiff certification register and the inclusion of CRB checks as part of the application process for certification. The third measure; minimum training requirements and competences for bailiffs, awaits further details. Ministers state that the intention is to implement "full independent regulation" by 2012 but with a General Election due to take place in 2010 it remains to be seen whether or not such regulation ever takes place.