Friday, 7 October 2016

Powers of distress

I have recently published on Kindle a supplement to my 2008 book, Powers of distress, which looked at the forms of seizure which were not incorporated into the 2007 Act. There are only a handful of these, but for various reasons never fully publicised, MoJ decided to keep these outside the new regime despite their obscurity and the infrequency with which they are used.
An example of such a power is the writ of execution specially designed to be issued against Church of England clergy who get into debt. This may sound like fantasy but it is quite genuine. I imagine some complex interrelationships between state and church necessitated this, but the results are duplication of law and greater complexity. The reforms of 2014 sought to simplify and harmonise the law but what they actually did was to aggravate the existing situation by creating the new process of taking control of goods and retaining alongside that the older laws of distraint and execution. Moreover, I think the retention of forms of writ not covered by the new regulations also (in part) led to retention of the old structures for the enforcement profession.
I think it must be admitted that, under the revised law, there is very little difference between enforcement agents and HCEOs. Their powers are virtually identical and whilst certain debts attract additional or special powers, it is by no means civil court judgments that are uniquely favoured; fines often are singled out for separate treatment.
As many readers will know, Lord Justice Briggs' review of the county court and High Court suggested a single civil court. This must imply, in due course, a single 'civil court bailiff.' The logical and rational direction appears to be towards increased simplicity and harmony. This would indicate that a final consolidation of enforcement powers within the modernised taking control procedure and subject to a single form of licencing/ authorisation for enforcement professionals must be an inevitable and obvious element in this.
This appears to be the sensible solution to our present muddle. However, inertia, attachment to tradition and understandable fear of change and upheaval and possile threats to income and livelihood are all likely to stand in the way.

No comments:

Post a Comment