Updated: Oct 15, 2020
Politicians are, in my experience, looking for a sugar-coated enforcement system and the fact is there isn’t one. Enforcement is tough, its tough on the people in the system, its tough on the people who do the business and its tough on society as a whole. Government have looked at alternatives over the years, from taking away civil liberties such as passports and driving licenses, through to automatic payment from a variety of assets. The current enforcement options have found to be compliant with the European Convention on Human Rights and are probably the best we are going to get.
I don’t mind that there was a review – scrutiny is always welcome. But I wish the review had come on the back of reliable data. But the fact is, that complaints drive reviews and it is the debtor side of the enforcement equation who are the most animated in their complaints. The creditor side errs on the side of caution – and in my view is far too cautious. Be that as it may we now have a set of findings which are in the main sensible and which deserve a discussion.
What is a Complaint?
The Select Committee found a huge gulf in the numbers of complaints put forward by the debtor side, and the bailiff side. It has been identified that whilst 850,000 “complaints” is a number raised by the debtor side, the actual evidence of these complaints is hard to isolate in a database or other reporting system. Extrapolation of small numbers of figures is no doubt a root cause in such a number being bandied around as correct. I never like to see this. The data is erroneous, and this can lead to action being taken on dubious figures. One could say that even one complaint about a bailiff being aggressive is one too many and actually I subscribe to that view point. But that still doesn’t detract from the quest to be accurate in all things.
As it is one of the key differences here is the definition of a complaint from all stakeholders. I don’t believe the enforcement industry does enough, bearing in mind its service, to resolve and satisfy complaints of people who are caught up in the enforcement systems. I saw this many years ago when bailiffs were insisting that complainants write in with a letter setting out their complaint. I don’t think it even crossed anyone’s mind that some of the public cannot write or would be too intimidated to write a letter. Times have moved on, but are we still seeing the insistence on “writing a complaint” before we are prepared to deal with it? This is not good enough. Modern complaint systems must be open on a number of channels to accept complaints including social media sites, websites, snail mail, telephone and text!
An independent complaints handling function is welcome and needed. Such a body would set an objective standard – which must be a-political. It is important to remember in enforcement that it comes at the end of a legal process, so on the face of it the action taken is lawful. That part is always missing when it comes to these sorts of reports.
The need for regulation:
I see this as the next stage in the evolution of enforcement services and it is needed. Regulation by a peer group is never the best option. There are too much hidden agendas and backroom discussions which are not transparent. A regulator has a statutory framework to follow in terms of Schedule 12 of the TCEA 2007 and the accompanying Regulations. But the law is still in a state of flux and needs to be honed. This is a responsibility of us all.
As it is Shergroup is regulated by the SRA, FCA, and SIA and we manage the compliance in well-established compliance systems. In enforcement the systems are less clear, so we have to work out the best approach. I think it is time to professionalize this situation in relation to enforcement services. Enforcement is by its very nature intrusive and the public should be protected from unfair practice. The time is right for a Regulator to be put in place.
I don’t agree with the Select Committee on its findings on fees. Fees have been constantly under review by the MoJ since 2009 when discussions first started to modernize and streamline the subject. I think the TCG(F) Regs 2014 are a solid outcome after a period of intense scrutiny and negotiation to find the right level of fees. But the need to review, and to share good and bad practice could be a win win for the enforcement industry. To be honest I think it is the Government who have failed to invest in, and support, its policy team in relation to setting up a regular review on the topic of fees. As for making fees as “low as possible”, the politicos are living in cloud cuckoo land. Enforcement isn’t a cheap service to deliver. But all the facts and figures of running an enforcement business are with Government, who have the business models. It is Government who must design the review process and involve the stakeholders. Let’s move the model forward – not go back to basics – and waste a load of taxpayer’s money revisiting something that is already in place.
Body Worn Cameras
The need for body worn cameras is paramount. Years ago, I can’t believe that I wasn’t that keen, but I am a convert to the technology. But we need more support from Government and the ICO on how this technology should be used in accordance with data protection principles. I have been asking the HCEOA to come up with a policy on body worn cameras and media and TV coverage for many months. I am heartened to see that a Select Committee agrees with me that more needs to be done on this topic.
Body Worn Cameras do moderate behavior – for both debtor and enforcement agent and indeed anyone else involved in the enforcement process. Now we have to have clear guidelines on how to use the technology and to consider practical issues such as how long to store the footage. For all these types of situations I think the ICO should give practical advice to the Select Committee. The MoJ can drive that conversation through its own good offices and should do so now. This footage stops complaints, and at least stops the “he said, she said” type of row.
Any review of the enforcement process is to be welcome. I find the recommendations of the Select Committee sensible and considered. If embraced by the enforcement industry, only good can come of it. If I were Chair of the HCEOA today I would be asking the MoJ how can we help the Government to get these things in place. I would not be fighting the definition of a complaint or moaning about fees. That is not what Government wants to hear. A Regulator for the enforcement industry is a positive, as is an independent complaints board. I welcome the positive outcomes from this report and hope they will be driven forward into policy and law.