Tribunals, Courts and Enforcement Act 2007
Encyclopedia
The Tribunals, Courts and Enforcement Act 2007 is an Act
of the Parliament of the United Kingdom
. It provides for several diverse matters relating to the law, some of them being significant changes to the structure of the courts and fundamental legal procedures. Part 1 provides a scheme for radical overhaul of the tribunal
system in the UK, creating a new unified structure with two new tribunals to embrace the former fragmented scheme, along with a Senior President of Tribunals. Part 2 defines new criteria for appointment as a judge
, generally reducing the length of experience required with the aim of increasing diversity
in the judiciary
. Part 3 creates a new system of taking control of goods in order to enforce judgments and abolishes ancient common law
writ
s and remedies such as fieri facias
, replevin
and distress for rent
. It further abolishes the ancient office of bailiff
in the recovery of debt
s and replaces it with a modern system of certified enforcement agents. Part 4 makes some changes to attachment of earnings
and charging order
s to make recovery of debts more straightforward. Part 5 makes some changes to insolvency
practice in order to provide low-cost protection for people who have previously been excluded
owing to their small debts and lack of assets. Part 6 provides protection from seizure for foreign antiquities
and artefacts on display in the UK and whose provenance
is alleged to be broken by misappropriation. Such artefacts can only be seized on a court order
that was compelled by a Community obligation or a treaty
obligation.
s have been created on an ad hoc basis to perform various judicial
functions, for example Employment Tribunal
s and Asylum and Immigration Tribunal
s. The tribunals' members were a mixture of judge
s, lawyer
s, experts and laypeople
, and were regulated by various government departments and bodies. Though these tribunals were supervised by, and had rights of appeal
within, the Courts of the United Kingdom
reform was recommended to create a unified and simplified structure, better integrated into the courts system.
who are guaranteed continued judicial independence
(s. 1).
Section 3 of the Act creates two new tribunals to which existing jurisdiction
s will be transferred, a First-tier Tribunal
and an Upper Tribunal
. The tribunals are divided into several chambers, each to bring together a single subject matter, for example employment
. Some tribunals will still lie outside the new system. All legally-qualified members will take the title of judge. There will be a right of appeal on a question of law
from the First-tier to the Upper Tribunal and some limited jurisdiction for judicial review
. The Upper Tribunal will be a senior court of record
. There is a right of appeal to the Court of Appeal of England and Wales
, Court of Appeal in Northern Ireland or Court of Session
(Scotland) (s. 13). The first chambers within the First-tier Tribunal are planned to start sitting on 3 November 2008.
The Act replaces the Council on Tribunals with an Administrative Justice and Tribunals Council
and creates the office of Senior President of Tribunals
, to be appointed by the Queen on the recommendation of the Lord Chancellor
. (s.2/ Sch.1).
Chambers will be created flexibly by the Lord Chancellor in consultation with the Senior President of Tribunals and each will have its own Chamber President (s. 7/ Sch. 4).
Tribunal judgments will carry a right to a warrant of execution
or entry on the Register of Judgments, Orders and Fines
and will no longer require to be registered in the County Court
or High Court (s. 27).
among the judiciary
in the UK. They concluded that the qualifications required to serve as a judge
were a barrier to a broader judiciary and recommended that they be varied, in particular by shortening the period of legal practice demanded before seeking office. However, the consultation recognised the anomaly that a barrister
or solicitor
could seek office after a certain period of qualification, even had they never practised.
Relevant qualification is as a barrister or solicitor (s. 50) though the Lord Chancellor can extend this to members of the Institute of Legal Executives
or other bodies (s. 51). The specified periods for which a relevant qualification must be held are generally reduced to five or seven years from the previous respective seven or ten (Sch. 10). In particular, qualification for appointment as a District Judge requires five years' experience and, as a Circuit Judge, seven years.
Experience in law can be (s. 52):
Sections 53-59 make various changes to the rules for appointing judges while section 60 requires that the chairman of the Law Commission
is a judge of the High Court of England and Wales or the Court of Appeal of England and Wales
.
and writ
s of fieri facias
was increasingly considered as cumbersome, confusing and old-fashioned. Further, general concern about unlawful, violent and threatening behaviour by bailiff
s led to a Department for Constitutional Affairs White Paper
proposing modernisation and regulation.
self-help
remedy of distress for rent
, replacing it, solely for lease
s on commercial property
, by a statutory system of Commercial Rent Arrears Recovery (CRAR) (ss. 72-87/ Sch. 14).
Section 65 abolishes the common law rules concerning:
Schedules 12 and 13 create a new process of taking control of goods.
Otherwise, a person who knowingly or recklessly purports to act as an enforcement agent is guilty of a summary offence
and, on conviction, can be fined up to level 5 on the standard scale
(s. 63(6) -(7)).
orders required the debtor to certify their own income
and this was frequently misstated. Charging order
s could not be made unless the debtor was in arrears with payments against the debt. This situation was perceived as offering opportunities for the debtor to dispose of valuable property while making modest instalments in the short term. Information hearings under Part 71 of the Civil Procedure Rules were widely perceived as ineffective.
arrears. Section 92 amends the 1971 Act to give the court the power to seek information on the details of a debtor's current employer from HM Revenue and Customs.
, HM Revenue and Customs, and third parties such as bank
s and credit reference agencies.
s, were excluded from the existing schemes for insolvency
protection. In particular, the schemes of Administration Orders (AOs) and Enforcement Restriction Orders (EROs) were seen to be deficient.
to create a new instrument of Debt Relief Order
(DRO). DROs are a low-cost scheme offered under narrow criteria for those currently excluded by the insolvency system. They will be administered by official receiver
s outside the courts' jurisdiction and will offer protection from creditors for a year. In 2007, it was estimated that there were 70,000 private, unregulated and unenforceable debt management schemes in operation in the UK. Sections 109 to 133 and Schedule 21 provide for a statutory system of Debt Management Schemes to regulate such practises.
and cultural artifacts, sometimes allegedly misappropriated by their current custodians, would be seized by court order
while on display in the UK, led to an increasing reluctance of foreign states and private individuals to allow loans for exhibitions. The provisions of the State Immunity Act 1978
were inadequate. Such uncertainties caused diplomatic
tensions over a proposed loan of art works from Russia
for an exhibition at the Royal Academy
in December 2007. In particular, there was speculation that there might be attempts to seize Henri Matisse
's The Dance
which had been appropriated by the Bolshevik
government from Sergei Shchukin
during the Russian Revolution. The new provisions of this section of the Act came into force on 31 December and the Russian government gave permission for the paintings to travel to the UK and for the exhibition to go ahead on 9 January 2008.
ed for display or exhibition at an approved museum
or gallery. The protection lasts for a maximum of 12 months, unless the article is damaged while in the UK and is undergoing repair, and protection only lasts while the article is:
Protected articles cannot be seized save under a court order made in the UK and which the court was required to make because of a Community obligation or treaty
obligation, or a statute
giving effect to a Community obligation or treaty (s. 136(1)). The Act does not provide immunity against prosecution for importing, export
ing or otherwise dealing with the article (s. 136(2)). These provisions of the Act bind the Crown
(s. 138).
Act of Parliament
An Act of Parliament is a statute enacted as primary legislation by a national or sub-national parliament. In the Republic of Ireland the term Act of the Oireachtas is used, and in the United States the term Act of Congress is used.In Commonwealth countries, the term is used both in a narrow...
of the Parliament of the United Kingdom
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
. It provides for several diverse matters relating to the law, some of them being significant changes to the structure of the courts and fundamental legal procedures. Part 1 provides a scheme for radical overhaul of the tribunal
Tribunal
A tribunal in the general sense is any person or institution with the authority to judge, adjudicate on, or determine claims or disputes—whether or not it is called a tribunal in its title....
system in the UK, creating a new unified structure with two new tribunals to embrace the former fragmented scheme, along with a Senior President of Tribunals. Part 2 defines new criteria for appointment as a judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
, generally reducing the length of experience required with the aim of increasing diversity
Diversity (politics)
In the political arena, the term diversity is used to describe political entities with members who have identifiable differences in their backgrounds or lifestyles....
in the judiciary
Judiciary
The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
. Part 3 creates a new system of taking control of goods in order to enforce judgments and abolishes ancient common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
writ
Writ
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...
s and remedies such as fieri facias
Fieri facias
A fieri facias, usually abbreviated fi. fa. is a writ of execution after judgment obtained in a legal action for debt or damages. The term is used in English law for such a writ issued in the High Court...
, replevin
Replevin
In creditors' rights law, replevin, sometimes known as "claim and delivery," is a legal remedy for a person to recover goods unlawfully withheld from his or her possession, by means of a special form of legal process in which a court may require a defendant to return specific goods to the...
and distress for rent
Distraint
Distraint or distress is "the seizure of someone’s property in order to obtain payment of rent or other money owed", especially in common law countries...
. It further abolishes the ancient office of bailiff
Bailiff
A bailiff is a governor or custodian ; a legal officer to whom some degree of authority, care or jurisdiction is committed...
in the recovery of debt
Debt
A debt is an obligation owed by one party to a second party, the creditor; usually this refers to assets granted by the creditor to the debtor, but the term can also be used metaphorically to cover moral obligations and other interactions not based on economic value.A debt is created when a...
s and replaces it with a modern system of certified enforcement agents. Part 4 makes some changes to attachment of earnings
Attachment of earnings
Attachment of Earnings is a legal process in civil litigation by which a defendant's wages or other earnings are taken to pay for a debt. This collections process is used in the common law system, especially Britain and the United States, but in other legal regimes as well.Ballentine's Law...
and charging order
Charging order
A charging order, in English law, is an order obtained from a court or judge by a judgment creditor, by which the property of the judgment debtor in any stocks or funds or land stands charged with the payment of the amount for which judgment shall have been recovered, with interest and...
s to make recovery of debts more straightforward. Part 5 makes some changes to insolvency
Insolvency
Insolvency means the inability to pay one's debts as they fall due. Usually used to refer to a business, insolvency refers to the inability of a company to pay off its debts.Business insolvency is defined in two different ways:...
practice in order to provide low-cost protection for people who have previously been excluded
Social exclusion
Social exclusion is a concept used in many parts of the world to characterise contemporary forms of social disadvantage. Dr. Lynn Todman, director of the Institute on Social Exclusion at the Adler School of Professional Psychology, suggests that social exclusion refers to processes in which...
owing to their small debts and lack of assets. Part 6 provides protection from seizure for foreign antiquities
Antiquities
Antiquities, nearly always used in the plural in this sense, is a term for objects from Antiquity, especially the civilizations of the Mediterranean: the Classical antiquity of Greece and Rome, Ancient Egypt and the other Ancient Near Eastern cultures...
and artefacts on display in the UK and whose provenance
Provenance
Provenance, from the French provenir, "to come from", refers to the chronology of the ownership or location of an historical object. The term was originally mostly used for works of art, but is now used in similar senses in a wide range of fields, including science and computing...
is alleged to be broken by misappropriation. Such artefacts can only be seized on a court order
Court order
A court order is an official proclamation by a judge that defines the legal relationships between the parties to a hearing, a trial, an appeal or other court proceedings. Such ruling requires or authorizes the carrying out of certain steps by one or more parties to a case...
that was compelled by a Community obligation or a treaty
Treaty
A treaty is an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an agreement, protocol, covenant, convention or exchange of letters, among other terms...
obligation.
Tribunals and inquiries
These provisions started to come into force on 19 September 2007. Though , no dates have been set for completing the process, the first tribunals under the new system are planned to sit from 3 November 2008.Background
In the UK, tribunalTribunal
A tribunal in the general sense is any person or institution with the authority to judge, adjudicate on, or determine claims or disputes—whether or not it is called a tribunal in its title....
s have been created on an ad hoc basis to perform various judicial
Justice
Justice is a concept of moral rightness based on ethics, rationality, law, natural law, religion, or equity, along with the punishment of the breach of said ethics; justice is the act of being just and/or fair.-Concept of justice:...
functions, for example Employment Tribunal
Employment tribunal
Employment Tribunals are tribunal non-departmental public bodies in England and Wales and Scotland which have statutory jurisdiction to hear many kinds of disputes between employers and employees. The most common disputes are concerned with unfair dismissal, redundancy payments and employment...
s and Asylum and Immigration Tribunal
Asylum and Immigration Tribunal
The Asylum and Immigration Tribunal was a tribunal constituted in the United Kingdom with jurisdiction to hear appeals from many immigration and asylum decisions...
s. The tribunals' members were a mixture of judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
s, lawyer
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
s, experts and laypeople
Layman
A layperson or layman is a person who is not an expert in a given field of knowledge. The term originally meant a member of the laity, i.e. a non-clergymen, but over the centuries shifted in definition....
, and were regulated by various government departments and bodies. Though these tribunals were supervised by, and had rights of appeal
Appeal
An appeal is a petition for review of a case that has been decided by a court of law. The petition is made to a higher court for the purpose of overturning the lower court's decision....
within, the Courts of the United Kingdom
Courts of the United Kingdom
The Courts of the United Kingdom are separated into three separate jurisidictions, the Courts of England and Wales, Courts of Scotland and the Courts of Northern Ireland, as the United Kingdom does not have a single unified judicial system....
reform was recommended to create a unified and simplified structure, better integrated into the courts system.
New tribunal structure
Section 1 of the Act recognises legally qualified members of tribunals as members of the judiciary of the United KingdomJudiciary of the United Kingdom
The Judiciary of the United Kingdom is not a single body. Each of the separate legal systems in England and Wales, Northern Ireland and Scotland have their own judiciary....
who are guaranteed continued judicial independence
Judicial independence
Judicial Independence is the idea that the judiciary needs to be kept away from the other branches of government...
(s. 1).
Section 3 of the Act creates two new tribunals to which existing jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
s will be transferred, a First-tier Tribunal
First-tier Tribunal
The First-tier Tribunal is part of the administrative justice system of the United Kingdom. It was created in 2008 as part of a programme, set out in the Tribunals, Courts and Enforcement Act 2007, to rationalise the tribunal system, and has since taken on the functions of twenty previously...
and an Upper Tribunal
Upper Tribunal
The Upper Tribunal is part of the administrative justice system of the United Kingdom. It was created in 2008 as part of a programme, set out in the Tribunals, Courts and Enforcement Act 2007, to rationalise the tribunal system, and to provide a common means of handling appeals against the...
. The tribunals are divided into several chambers, each to bring together a single subject matter, for example employment
Employment
Employment is a contract between two parties, one being the employer and the other being the employee. An employee may be defined as:- Employee :...
. Some tribunals will still lie outside the new system. All legally-qualified members will take the title of judge. There will be a right of appeal on a question of law
Question of law
In jurisprudence, a question of law is a question which must be answered by applying relevant legal principles, by an interpretation of the law. Such a question is distinct from a question of fact, which must be answered by reference to facts and evidence, and inferences arising from those facts...
from the First-tier to the Upper Tribunal and some limited jurisdiction for judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
. The Upper Tribunal will be a senior court of record
Court of record
In common law jurisdictions, a court of record is a judicial tribunal having attributes and exercising functions independently of the person of the magistrate designated generally to hold it, and proceeding according to the course of common law, its acts and proceedings being enrolled for a...
. There is a right of appeal to the Court of Appeal of England and Wales
Court of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...
, Court of Appeal in Northern Ireland or Court of Session
Court of Session
The Court of Session is the supreme civil court of Scotland, and constitutes part of the College of Justice. It sits in Parliament House in Edinburgh and is both a court of first instance and a court of appeal....
(Scotland) (s. 13). The first chambers within the First-tier Tribunal are planned to start sitting on 3 November 2008.
The Act replaces the Council on Tribunals with an Administrative Justice and Tribunals Council
Administrative Justice and Tribunals Council
The Administrative Justice and Tribunals Council is a non-departmental public body in the United Kingdom, responsible for supervising and regulating administrative justice and tribunals...
and creates the office of Senior President of Tribunals
Senior President of Tribunals
The Senior President of Tribunals is a senior judge in the United Kingdom who presides over the UK tribunal system. The Senior President is appointed by the Queen on the recommendation of the Lord Chancellor. Lord Justice Carnwath was appointed as the first holder of the post on 12 November 2007...
, to be appointed by the Queen on the recommendation of the Lord Chancellor
Lord Chancellor
The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
. (s.2/ Sch.1).
Chambers will be created flexibly by the Lord Chancellor in consultation with the Senior President of Tribunals and each will have its own Chamber President (s. 7/ Sch. 4).
Tribunal judgments will carry a right to a warrant of execution
Warrant of execution
A Warrant of Execution is a form of writ of execution used in British courts. It is a method of enforcing judgments and empowers a County Court bailiff to attend a judgment debtor’s address to take goods for sale.-Procedure:...
or entry on the Register of Judgments, Orders and Fines
Register of Judgments, Orders and Fines
The Register of Judgment, Orders and Fines is a statutory register in England and Wales that maintains a record of:*Judgments entered in the High Court;*Judgments entered in county courts;...
and will no longer require to be registered in the County Court
County Court
A county court is a court based in or with a jurisdiction covering one or more counties, which are administrative divisions within a country, not to be confused with the medieval system of county courts held by the High Sheriff of each county.-England and Wales:County Court matters can be lodged...
or High Court (s. 27).
Judicial appointments
These provisions started to come into force on 19 September 2007 and implementation was completed on 21 July 2008.Background
In 2004, the Department of Constitutional Affairs consulted on means of increasing diversityDiversity (politics)
In the political arena, the term diversity is used to describe political entities with members who have identifiable differences in their backgrounds or lifestyles....
among the judiciary
Judiciary
The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
in the UK. They concluded that the qualifications required to serve as a judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
were a barrier to a broader judiciary and recommended that they be varied, in particular by shortening the period of legal practice demanded before seeking office. However, the consultation recognised the anomaly that a barrister
Barrister
A barrister is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions...
or solicitor
Solicitor
Solicitors are lawyers who traditionally deal with any legal matter including conducting proceedings in courts. In the United Kingdom, a few Australian states and the Republic of Ireland, the legal profession is split between solicitors and barristers , and a lawyer will usually only hold one title...
could seek office after a certain period of qualification, even had they never practised.
The judicial-appointment eligibility condition
The Act creates a judicial-appointment eligibility condition that a person (s.50(2)-(3)):- Holds a relevant qualification; and
- Has gained experience in law for a specified period while holding a relevant qualification
Relevant qualification is as a barrister or solicitor (s. 50) though the Lord Chancellor can extend this to members of the Institute of Legal Executives
Institute of Legal Executives
The Institute of Legal Executives is the professional body for legal executives in England and Wales and an examination board providing qualifications for legal executives, paralegals and legal secretaries.-History:...
or other bodies (s. 51). The specified periods for which a relevant qualification must be held are generally reduced to five or seven years from the previous respective seven or ten (Sch. 10). In particular, qualification for appointment as a District Judge requires five years' experience and, as a Circuit Judge, seven years.
Experience in law can be (s. 52):
- Judicial functions of any court or tribunal;
- Acting as an arbitrator;
- Practice or employment as a lawyerLawyerA lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
; - Advising on the application of the law;
- Assisting persons involved in proceedings for the resolution of issues arising under the law;
- Acting as a mediatorMediationMediation, as used in law, is a form of alternative dispute resolution , a way of resolving disputes between two or more parties. A third party, the mediator, assists the parties to negotiate their own settlement...
; - Drafting documents intended to affect persons' rights or obligations;
- Teaching or researching law;
- Other activities of a broadly similar nature.
Sections 53-59 make various changes to the rules for appointing judges while section 60 requires that the chairman of the Law Commission
Law Commission
A Law Commission or Law Reform Commission is an independent body set up by a government to conduct law reform; that is, to consider the state of laws in a jurisdiction and make recommendations or proposals for legal changes or restructuring...
is a judge of the High Court of England and Wales or the Court of Appeal of England and Wales
Court of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...
.
Enforcement by taking control of goods
no dates have been set for the coming into force of these provisions.Background
The previous system of warrants of executionWarrant of execution
A Warrant of Execution is a form of writ of execution used in British courts. It is a method of enforcing judgments and empowers a County Court bailiff to attend a judgment debtor’s address to take goods for sale.-Procedure:...
and writ
Writ
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...
s of fieri facias
Fieri facias
A fieri facias, usually abbreviated fi. fa. is a writ of execution after judgment obtained in a legal action for debt or damages. The term is used in English law for such a writ issued in the High Court...
was increasingly considered as cumbersome, confusing and old-fashioned. Further, general concern about unlawful, violent and threatening behaviour by bailiff
Bailiff
A bailiff is a governor or custodian ; a legal officer to whom some degree of authority, care or jurisdiction is committed...
s led to a Department for Constitutional Affairs White Paper
White paper
A white paper is an authoritative report or guide that helps solve a problem. White papers are used to educate readers and help people make decisions, and are often requested and used in politics, policy, business, and technical fields. In commercial use, the term has also come to refer to...
proposing modernisation and regulation.
Distress for rent
Section 71 abolishes the ancient common lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
self-help
Self-help (law)
Self-help, in the sense of a legal doctrine, refers to individuals' implementation of their rights without resorting to legal writ or consultation of higher authority, as where a financial institution repossesses a car on which they hold both the title and a defaulted note...
remedy of distress for rent
Distraint
Distraint or distress is "the seizure of someone’s property in order to obtain payment of rent or other money owed", especially in common law countries...
, replacing it, solely for lease
Lease
A lease is a contractual arrangement calling for the lessee to pay the lessor for use of an asset. A rental agreement is a lease in which the asset is tangible property...
s on commercial property
Commercial property
The term commercial property refers to buildings or land intended to generate a profit, either from capital gain or rental income.-Definition:...
, by a statutory system of Commercial Rent Arrears Recovery (CRAR) (ss. 72-87/ Sch. 14).
Enforcing judgments against goods
Writs of fieri facias are renamed writs of control. Warrants of execution and warrants of distress are renamed warrants of control. Writs of fieri facias de bonis ecclesiasticis are unaffected. (s. 62).Section 65 abolishes the common law rules concerning:
- Distinctions between an illegal, an irregular and an excessive exercise of a power;
- Remedies available to the debtorDebtorA debtor is an entity that owes a debt to someone else. The entity may be an individual, a firm, a government, a company or other legal person. The counterparty is called a creditor...
; - ReplevinReplevinIn creditors' rights law, replevin, sometimes known as "claim and delivery," is a legal remedy for a person to recover goods unlawfully withheld from his or her possession, by means of a special form of legal process in which a court may require a defendant to return specific goods to the...
; and - Rescuing goods.
Schedules 12 and 13 create a new process of taking control of goods.
Enforcement agents
The Act replaces the ancient office of bailiff with that of enforcement agent. Section 63 of the Act restricts the role of enforcement agent to an individual who:- Acts under a certificate under the Act. Certificates can be issued by various judges and the Lord Chancellor has the power to make regulations for the granting of certificates (s. 64).
- Is exempt because he acts in the course of his duty as:
- A constableConstableA constable is a person holding a particular office, most commonly in law enforcement. The office of constable can vary significantly in different jurisdictions.-Etymology:...
; - An officer of HM Revenue and Customs;
- A person appointed under section 2(1) of the Courts Act 2003Courts Act 2003The Courts Act 2003 is an Act of the Parliament of the United Kingdom implementing many of the recommendations in Sir Robin Auld's in England and Wales...
(court officers and staff);
- A constable
- Acts in the presence or under the direction of one of the above;
- Is exempt because he acts in the course of his duty as an officer of a government department.
Otherwise, a person who knowingly or recklessly purports to act as an enforcement agent is guilty of a summary offence
Summary offence
A summary offence is a criminal act in some common law jurisdictions that can be proceeded with summarily, without the right to a jury trial and/or indictment .- United States :...
and, on conviction, can be fined up to level 5 on the standard scale
Standard scale
The standard scale is a system whereby financial criminal penalties in legislation have maximum levels set against a standard scale. Then, when inflation makes it necessary to increase the levels of the fines the legislators need to modify only the scale rather than each individual piece of...
(s. 63(6) -(7)).
Enforcement of judgments and orders
, no date is fixed for the coming into force of these provisions.Background
Various problems were perceived to persist with the availability, quality and reliability of financial information from debtors. Attachment of earningsAttachment of earnings
Attachment of Earnings is a legal process in civil litigation by which a defendant's wages or other earnings are taken to pay for a debt. This collections process is used in the common law system, especially Britain and the United States, but in other legal regimes as well.Ballentine's Law...
orders required the debtor to certify their own income
Income
Income is the consumption and savings opportunity gained by an entity within a specified time frame, which is generally expressed in monetary terms. However, for households and individuals, "income is the sum of all the wages, salaries, profits, interests payments, rents and other forms of earnings...
and this was frequently misstated. Charging order
Charging order
A charging order, in English law, is an order obtained from a court or judge by a judgment creditor, by which the property of the judgment debtor in any stocks or funds or land stands charged with the payment of the amount for which judgment shall have been recovered, with interest and...
s could not be made unless the debtor was in arrears with payments against the debt. This situation was perceived as offering opportunities for the debtor to dispose of valuable property while making modest instalments in the short term. Information hearings under Part 71 of the Civil Procedure Rules were widely perceived as ineffective.
Attachment of earnings orders
Section 91 and Schedule 15 amend the Attachment of Earnings Act 1971 to allow deductions to be made on the basis of a fixed rate, similar to the scheme already used for Council TaxCouncil tax
Council Tax is the system of local taxation used in England, Scotland and Wales to part fund the services provided by local government in each country. It was introduced in 1993 by the Local Government Finance Act 1992, as a successor to the unpopular Community Charge...
arrears. Section 92 amends the 1971 Act to give the court the power to seek information on the details of a debtor's current employer from HM Revenue and Customs.
Charging orders
Section 93 amends the Charging Orders Act 1979 to enable charging orders to be made even though the debtor is not in arrears of an order for payment of the debt by instalments. However, sale can only be ordered if instalments are missed. Section 94 gives the Lord Chancellor the power to make regulations setting minimum limits on the value of debts where these provisions can be used to prevent their being invoked unfairly or vexatiously.Information requests and orders
Sections 95 to 105 establish a system of applications for information whereby a creditor can apply to the court for an information order to obtain information about the debtor's means from the Department for Work and PensionsDepartment for Work and Pensions
The Department for Work and Pensions is the largest government department in the United Kingdom, created on June 8, 2001 from the merger of the employment part of the Department for Education and Employment and the Department of Social Security and headed by the Secretary of State for Work and...
, HM Revenue and Customs, and third parties such as bank
Bank
A bank is a financial institution that serves as a financial intermediary. The term "bank" may refer to one of several related types of entities:...
s and credit reference agencies.
Debt management and relief
, no date is fixed for the coming into force of these provisions.Background
Consultation by the Department for Constitutional Affairs suggested that some people, especially those with small debts and few assetAsset
In financial accounting, assets are economic resources. Anything tangible or intangible that is capable of being owned or controlled to produce value and that is held to have positive economic value is considered an asset...
s, were excluded from the existing schemes for insolvency
Insolvency
Insolvency means the inability to pay one's debts as they fall due. Usually used to refer to a business, insolvency refers to the inability of a company to pay off its debts.Business insolvency is defined in two different ways:...
protection. In particular, the schemes of Administration Orders (AOs) and Enforcement Restriction Orders (EROs) were seen to be deficient.
AOs, EROs and DROs
The act makes changes to the schemes for AOs and EROs so that they are available to a broader class of people in financial difficulties (ss. 106-107/ Sch. 16). Section 108 and Schedules 17 to 20 amend the Insolvency Act 1986Insolvency Act 1986
The Insolvency Act 1986 is an Act of the Parliament of the United Kingdom that provides the legal platform for all matters relating to personal and corporate insolvency in the UK.-History:...
to create a new instrument of Debt Relief Order
Debt Relief Order
Chapter 4 of the Tribunals Courts and Enforcement Act 2007 introduced Debt Relief Orders as a new form of bankruptcy in the United Kingdom. A DRO will be a simplified, quicker and cheaper alternative to bankruptcy in the United Kingdom, suitable for debtors who have few or no assets and little...
(DRO). DROs are a low-cost scheme offered under narrow criteria for those currently excluded by the insolvency system. They will be administered by official receiver
Official Receiver
An officer of the Insolvency Service of the United Kingdom, the Official Receiver is an officer of the court to which he is attached. The OR is therefore answerable to the courts for carrying out the courts' orders and for fulfilling his duties under law...
s outside the courts' jurisdiction and will offer protection from creditors for a year. In 2007, it was estimated that there were 70,000 private, unregulated and unenforceable debt management schemes in operation in the UK. Sections 109 to 133 and Schedule 21 provide for a statutory system of Debt Management Schemes to regulate such practises.
Protection of cultural artifacts
These provisions came into effect in England on 31 December 2007, in Scotland on 21 April 2008, and in Wales and Northern Ireland on 22 April 2008.Background
The possibility that antiquitiesAntiquities
Antiquities, nearly always used in the plural in this sense, is a term for objects from Antiquity, especially the civilizations of the Mediterranean: the Classical antiquity of Greece and Rome, Ancient Egypt and the other Ancient Near Eastern cultures...
and cultural artifacts, sometimes allegedly misappropriated by their current custodians, would be seized by court order
Court order
A court order is an official proclamation by a judge that defines the legal relationships between the parties to a hearing, a trial, an appeal or other court proceedings. Such ruling requires or authorizes the carrying out of certain steps by one or more parties to a case...
while on display in the UK, led to an increasing reluctance of foreign states and private individuals to allow loans for exhibitions. The provisions of the State Immunity Act 1978
State Immunity Act 1978
The State Immunity Act 1978 is an Act of the Parliament of the United Kingdom which was passed to implement the European Convention on State Immunity of 1972 into British law...
were inadequate. Such uncertainties caused diplomatic
Diplomacy
Diplomacy is the art and practice of conducting negotiations between representatives of groups or states...
tensions over a proposed loan of art works from Russia
Russia
Russia or , officially known as both Russia and the Russian Federation , is a country in northern Eurasia. It is a federal semi-presidential republic, comprising 83 federal subjects...
for an exhibition at the Royal Academy
Royal Academy
The Royal Academy of Arts is an art institution based in Burlington House on Piccadilly, London. The Royal Academy of Arts has a unique position in being an independent, privately funded institution led by eminent artists and architects whose purpose is to promote the creation, enjoyment and...
in December 2007. In particular, there was speculation that there might be attempts to seize Henri Matisse
Henri Matisse
Henri Matisse was a French artist, known for his use of colour and his fluid and original draughtsmanship. He was a draughtsman, printmaker, and sculptor, but is known primarily as a painter...
's The Dance
The Dance (painting)
The Dance are two related paintings made by Henri Matisse between 1909 and 1910. The first, preliminary version is Matisse's study for the second version...
which had been appropriated by the Bolshevik
Bolshevik
The Bolsheviks, originally also Bolshevists , derived from bol'shinstvo, "majority") were a faction of the Marxist Russian Social Democratic Labour Party which split apart from the Menshevik faction at the Second Party Congress in 1903....
government from Sergei Shchukin
Sergei Shchukin
Sergei Ivanovich Shchukin was a Russian businessman who became an art collector, mainly of French Impressionist and Post-Impressionist art, following a trip to Paris in 1897, when he bought his first Monet. He later bought numerous works by Paul Cézanne, Vincent van Gogh, and Paul Gauguin, among...
during the Russian Revolution. The new provisions of this section of the Act came into force on 31 December and the Russian government gave permission for the paintings to travel to the UK and for the exhibition to go ahead on 9 January 2008.
Protection under the Act
Section 135 defines the articles to be protected as those normally kept and owned outside the UK, lawfully importImport
The term import is derived from the conceptual meaning as to bring in the goods and services into the port of a country. The buyer of such goods and services is referred to an "importer" who is based in the country of import whereas the overseas based seller is referred to as an "exporter". Thus...
ed for display or exhibition at an approved museum
Museum
A museum is an institution that cares for a collection of artifacts and other objects of scientific, artistic, cultural, or historical importance and makes them available for public viewing through exhibits that may be permanent or temporary. Most large museums are located in major cities...
or gallery. The protection lasts for a maximum of 12 months, unless the article is damaged while in the UK and is undergoing repair, and protection only lasts while the article is:
- On public display in a temporary exhibition at a museum or gallery;
- Going to or returning from public display in a temporary exhibition at a museum or gallery;
- Undergoing related repair, conservation or restoration;
- Going to or returning from related repair, conservation or restoration;
- Leaving the UK.
Protected articles cannot be seized save under a court order made in the UK and which the court was required to make because of a Community obligation or treaty
Treaty
A treaty is an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an agreement, protocol, covenant, convention or exchange of letters, among other terms...
obligation, or a statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
giving effect to a Community obligation or treaty (s. 136(1)). The Act does not provide immunity against prosecution for importing, export
Export
The term export is derived from the conceptual meaning as to ship the goods and services out of the port of a country. The seller of such goods and services is referred to as an "exporter" who is based in the country of export whereas the overseas based buyer is referred to as an "importer"...
ing or otherwise dealing with the article (s. 136(2)). These provisions of the Act bind the Crown
The Crown
The Crown is a corporation sole that in the Commonwealth realms and any provincial or state sub-divisions thereof represents the legal embodiment of governance, whether executive, legislative, or judicial...
(s. 138).