Tribunals, Courts and Enforcement Act 2007

In the UK, tribunals have been created on an ad hoc basis to perform various judicial functions, for example Employment Tribunals and Asylum and Immigration Tribunals.[9] The tribunals' members were a mixture of judges, lawyers, 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.[10][11]

Section 1 of the Act recognises legally qualified members of tribunals as members of the judiciary of the United Kingdom who are guaranteed continued judicial independence (s. 1).[12]

Section 3 of the Act creates two new tribunals to which existing jurisdictions 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).[13] The first chambers within the First-tier Tribunal are planned to start sitting on 3 November 2008.[8]

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).[13]

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).[13]

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).[13]

In 2004, the Department of Constitutional Affairs consulted on means of increasing diversity 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.[14][15]

The Act creates a judicial-appointment eligibility condition that a person (s.50(2)-(3)):[15]

• 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 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.[15]

Experience in law can be (s. 52):

• Judicial functions of any court or tribunal;
• Acting as an arbitrator;
• Practice or employment as a lawyer;
• Advising on the application of the law;
• Assisting persons involved in proceedings for the resolution of issues arising under the law;
• Acting as a mediator;
• 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 is a judge of the High Court of England and Wales or the Court of Appeal of England and Wales.[15]

The previous system of warrants of execution and writs of fieri facias was increasingly considered as cumbersome, confusing and old-fashioned. Further, general concern about unlawful, violent and threatening behaviour by bailiffs led to a Department for Constitutional Affairs White Paper proposing modernisation and regulation.[16][17]

Section 71 abolishes the ancient common law self-help remedy of distress for rent, replacing it, solely for leases on commercial property, by a statutory system of Commercial Rent Arrears Recovery (CRAR) (ss. 72-87/ Sch. 14).[17]

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 debtor;
• Replevin; and
• Rescuing goods.[lower-alpha 1]

Schedules 12 and 13 create a new process of taking control of goods.[17]

The Act replaces the ancient office of bailiff with that of enforcement agent (County Court bailiffs are still referred to as such). Section 63 of the Act restricts the role of enforcement agent to an individual who:[17]

• 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 constable;
  • An officer of HM Revenue and Customs;
  • A person appointed under section 2(1) of the Courts Act 2003 (court officers and staff);
• 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 and, on conviction, can be fined up to level 5 on the standard scale (s. 63(6) -(7)).[17]

Various problems were perceived to persist with the availability, quality and reliability of financial information from debtors. Attachment of earnings orders required the debtor to certify their own income and this was frequently misstated. Charging orders 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.[16][19]

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 Tax 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.[19]

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.[19]

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 Pensions, HM Revenue and Customs, and third parties such as banks and credit reference agencies.[19]

Consultation by the Department for Constitutional Affairs suggested that some people, especially those with small debts and few assets, 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.[20][21][22]

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).[21] Section 108 and Schedules 17 to 20 amend the Insolvency Act 1986 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 receivers 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.[21]

The possibility that antiquities 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.[24] Such uncertainties caused diplomatic tensions over a proposed loan of art works from Russia for an exhibition at the Royal Academy in December 2007.[25] 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.[26] The new provisions of this section of the Act came into force on 31 December[4] 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.[27]

Section 135 defines the articles to be protected as those normally kept and owned outside the UK, lawfully imported 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:[24]

• 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 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, exporting or otherwise dealing with the article (s. 136(2)).[24] These provisions of the Act bind the Crown (s. 138).[24][28]