Notice of Removal of Implied Right of Access......debtor loses in court and ordered to pay bailiff companies legal costs

[mikeymack2002]

Again this thread is so far off topic even Cadburys doesn't know anymore let alone readers

[p3t3r]

Unclebulgaria, Yes! As I have already said, the claimant or defendant can draw the courts attention to EU law.

 

When you say UK law is implied in the first instance, I agree with that. But also am of the opinion that if in court attention is drawn to EU law, then EU law trumps that of UK law. UK legislation should be interpreted in a way that complies with EU law, unfortunately, it is my opinion that sending bailiffs after 'rubber stamping' liability orders is in contravention of EU law. It could also be argued that even without 'rubber stamping' sending bailiffs could be in contravention of EU law.

 

Bailiffs should only be sent as a last resort - again, I believe this to be covered by EU law.

[p3t3r]

Again this thread is so far off topic even Cadburys doesn't know anymore let alone readers

 

LOL many people say this thread is off topic. I fail to see how. I am discussing the thread title in conjunction with EU law.

 

The many people saying thread is off topic are in themselves going off topic!

[unclebulgaria67]

Unclebulgaria, Yes! As I have already said, the claimant or defendant can draw the courts attention to EU law.

 

When you say UK law is implied in the first instance, I agree with that. But also am of the opinion that if in court attention is drawn to EU law, then EU law trumps that of UK law. UK legislation should be interpreted in a way that complies with EU law, unfortunately, it is my opinion that sending bailiffs after 'rubber stamping' liability orders is in contravention of EU law. It could also be argued that even without 'rubber stamping' sending bailiffs could be in contravention of EU law.

 

Bailiffs should only be sent as a last resort - again, I believe this to be covered by EU law.

 

Good luck raising the few million quid it would need to take it through the UK courts and then Strasbourg if necessary.

 

EU Law does apply in the UK, but it is up to UK courts and UK parliament to interpret. If they get it wrong, you would have to apply to the High Court for judicial review, then the Supreme court and then Strasbourg. I think that is how it works, but it would take more than 5 years to get to stage where ECHR would even look at it.

 

UK law allows bailiffs to be sent around to private home to chase debts and therefore your challenge would be against the government that the law they had passed was in contravention with EU law.

[mikeymack2002]

So by using EU law how would you defend against an European Enforcement Order?

[Peterbard]

Again this thread is so far off topic even Cadburys doesn't know anymore let alone readers

 

LOL

 

I think we are going to have a problem here p3t particularly if you do not know what the TCE is.

However i gather that there is a modified notice, which includes mention of the Human rights sections mentioned, although really not on topic however.

 

I would say this , enforcement agents attend to execute a legally issued warrant using using procedure which is lawfully passed TCE 2007.

 

If you are going to question that action under EU law, or any law, you have to approach the courts, you cannot give a notice to the EA saying you question his authority, he has the authority given to him under the law. In other words you have to change the law.

[josephbloggs]

So by using EU law how would you defend against an European Enforcement Order?

 

I'm Sure someone will draw up another magic A4 piece of paper to stick in your front window

[Peterbard]

Way off topic. Back in 2006 when the TCE was going through parliament the CAB myself and several others, some members of parliament, minsters, members of the church raised the point regarding the compatibility of the bailiff system and human rights , peaceful enjoyment etc. this is how I know that it was investigated and the powers that be found that it was, if not compliant then compliant enough, so to speak.(it is ll in Hansard, but I am not trawling through it for you you will have to find it yourself)

 

I did not and as it happens do not totally agree, however that is the way it is, bailiffs are here to stay I am afraid, human rights or no.

[Coughdrop]

I've had a really interesting 3-4 hours reading a raft of aritcles, essays, and all sorts of information regarding this issue, as I'd not honestly considered it until today when I read what had been going on. I've come across European bodies I didn't even know existed with frightening powers.

 

I was, initially, going to post links to a few key articles, but have decided not to. Why? Because in my humble opinion, in reality the detail of the legal argument will be largely irrelevant, and I always like to try to come back to what would happen in reality.

 

I'm not aware of any removal of access notice covering this issue yet. After reading here, and as BA often points out many people do, I'd be very surprised if someone didn't draft something to use. Ultimately what is important is what will happen when an EA sees this notice? None of us can prejudge that, we can merely express opinions. The UK has an excellent record on Human Rights, but where it has been found lacking (from what I've read this morning), the shortcomings have involved the most basic of rights, so have been serious (in particular the right to a fair trial).

 

In my opinion, and it is only opinion - that's all any of us can express at present (or that's my understanding), I think initially most EA's would continue to ignore if that is what they are currently doing. However, if someone pursues it, I don't believe the councils would want to get into a case where all the stuff I've been reading this morning is thrown at them. My feeling is they would be highly aware of their vicarious liability and would think seriously about recalling the debt rather than face potential challenge.

 

Ultimately, Parliamentary Sovereignty (was that the wording?) is important, and the UK has an excellent record as already stated. BUT, and it's a huge but, it CAN be over-ruled and who knows, one day the issue of right of access may get that far for a ruling to be made. In the meantime, I think councils would be keen to give the issue a wide berth. What appears clear is that where the UK is over-ruled, it is quick to act to alter its legislation. The ECtHR is a 'living beast' in that it needs to respond to things as they are now, rather than when it was drafted. Thus a ruling a while ago may be challenged and adjudged differently now.

The proof of the pudding is in the eating, and until someone actualy drafts a notice relying on the above, we can debate all day long, but nobody can say who is right or wrong with regard to the notice.

 

It will be interesting to see what does happen in reality though, as and when someone challenges a council about this issue. They could face one hell of a legal bill for the sake of taking a debt back and getting their CTax or whatever via an AOE or whatever, thus bypassing EA's and their fees. It may take some time, but I can see this becoming quite significant. Interesting!

[mikeymack2002]

Further to post #188 don't forget this

 

 

Some are trying to get the HRA taken away and replaced with the Bill of Rights

 

 

See here http://www.itv.com/news/2014-10-03/tories-threaten-to-scrap-human-rights-act-and-replace-it-with-british-bill-of-rights/

[p3t3r]

So by using EU law how would you defend against an European Enforcement Order?

 

I shall jump on your bandwagon and declare your post off topic now

 

Anyway, to answer your question, I do not know! I assume that the European Enforcement Order would be raised by a creditor and applied if the debtor agrees to it. Alternatively, if the court declares it, however, a court that has followed the process of a fair trial, something which I feel is lacking in UK courts in relation to bailiffs / council tax / home repossessions.

[wun hung lo]

Further to post #188 don't forget this

 

Some are trying to get the HRA taken away and replaced with the Bill of Rights

 

The scrapping of the HRA would have zero bearing on EU Charters or ECtHR. Unless the UK completely withdraws from the EU, they have to abide by the rules.

[fletch70]

There does seem to be a lot of daily Mail style misconceptions going on here. If they have been adressed then I apologise

 

ECHR=European convention on Human Rights and in itself has no direct force on UK law

 

The European Court of Human rights again can only declare an incomparability between their ruling and a member states law.

 

Now moving on to European Law , although it does not exactly trump UK law as parliament is sovereign , parliament has given away some of that sovereignty to the EU so...if the British Parliament wanted to ignore a European Law the only practical way of doing it would be to leave the E.U.

[p3t3r]

There does seem to be a lot of daily Mail style misconceptions going on here. If they have been adressed then I apologise

ECHR=European convention on Human Rights and in itself has no direct force on UK law

No!!!! Of course ECHR has a direct force on UK law. Are you saying that UK can simply ignore ECHR ? They can't!

Membership of EU means that the country has to abide by EU laws.

 

The European Court of Human rights again can only declare an incomparability between their ruling and a member states law.

And provide remedy! Compensation!

 

 

Now moving on to European Law , although it does not exactly trump UK law as parliament is sovereign , parliament has given away some of that sovereignty to the EU so...if the British Parliament wanted to ignore a European Law the only practical way of doing it would be to leave the E.U.

EU law trumps UK law in essence as UK primary and secondary legislation must be interpreted in a way which is compatible with that of ECHR / EU law.

 

http://www.europeanlawmonitor.org/eu-legal-principles/eu-law-does-european-law-override-national-law.html

Above link explains that EU law does trump UK law.

[Peterbard]

http://www.europeanlawmonitor.org/eu-legal-principles/eu-law-does-european-law-override-national-law.html

Above link explains that EU law does trump UK law.

 

Just because EU law can take precedence over the member countries own legislation does not mean that it provides a get out of jail free card for every situation. The law has to be applicable to the situation, I doubt very much that the law pertaining to taking control of goods has any worries in this since it only exists in GB.

 

Regarding the bailiff situation the law is quite recent and the Eu situation was understood and would have been taken into account when the legislation was drafted, I doubt very much if there is anything that EU law can "trump" in this regard.

 

In consumer law the "harmonization" of the laws regarding consumer credit and so on take place trough the implementation of the directives. The current laws continue to take precedence until the directives are implemented.

[p3t3r]

hi

Just because EU law can take precedence over the member countries own legislation does not mean that it provides a get out of jail free card for every situation.

Of course it doesn't, and shouldn't! There is proportionality. However, EU law in case of unfair court hearing of council tax liability, or home repossessions etc (bailiffs) can be used. Take the scenario of council tax liability order, rubber stamping, there is no fair trial there...

 

The law has to be applicable to the situation,

Yes of course!

 

I doubt very much that the law pertaining to taking control of goods has any worries in this since it only exists in GB.

Which IMHO is not compatible with ECHR. The BBC link I provided earlier (which you declare is outdated) suggests a more pragmatic approach stating that in the case of a debtor, all avenues are explored prior to instructing a bailiff. Such possibilities are attachment of earnings order, a property charging order, deductions from state benefits. But this is not the case. It seems to be that after the liability order is rubber stamped, then bailiffs are instructed, - IMO against ECHR. The cynical side of me believes that councils are so quick to instruct bailiffs since it is an easier solution for them - and increases fees, money owed etc.

 

 

Regarding the bailiff situation the law is quite recent and the Eu situation was understood and would have been taken into account when the legislation was drafted, I doubt very much if there is anything that EU law can "trump" in this regard.

Bailiff? Right to a fair trial? That is a trump in itself.

 

In consumer law the "harmonization" of the laws regarding consumer credit and so on take place trough the implementation of the directives. The current laws continue to take precedence until the directives are implemented.

Hmm... I jump on your bandwagon, surely, that is off topic?

[Ganymede]

http://www.europeanlawmonitor.org/eu-legal-principles/eu-law-does-european-law-override-national-law.html

Above link explains that EU law does trump UK law.

 

Technically yes but Parliament can, and have, ignored the ruling of the ECtHR and all the Court can do is jump up and down and stamp their feet.

 

Remember in 2012 when the ECtHR tried to make the UK give the vote to serving prisoners?

 

"The justice secretary, Chris Grayling, told Andrew Marr last month, "There are precedents from other European countries of them saying no, we don't agree with you to the European court of human rights …"

 

"But Mr Cameron told MPs this afternoon he backed their overwhelming democratic vote last year that opposed the European Court of Human Rights' ruling.

 

At Prime Minister’s Questions, he said: 'I have always believed when you are sent to prison you lose certain rights and one of those rights is the right to vote.

 

'Crucially, I believe this should be a matter for Parliament to decide, not a foreign court.

 

'Parliament has made its decision and I completely agree with it."

[p3t3r]

yet the council of europe has said that there is no opt out for uk.

 

only way is to leave the EU.

[wun hung lo]

Parliament can ignore the ECtHR, that is not in dispute and I think the argument needs to steer away from relying on this. However, it cannot ignore the EU Charter of Fundamental Rights or the European Communities Act 1972.

 

It seems some people are confusing the ECtHR and the HRA 1998 with proper EU law.

[sequenci]

What does not work like what ???

 

EU law trumps UK law - period!

 

 

It's not as simple as that. You right to an extent in that UK law has to give effect to EU where applicable, but there are instances where compatibility is simply not possible. It's a complex area for sure.

[Ganymede]

yet the council of europe has said that there is no opt out for uk.

 

only way is to leave the EU.

 

Or to ignore them.

 

Not a lot that the ECtHR can do.

 

In any event, somebody needs to take a claim to the ECtHR first and ask them to declare the UK law incompatible. Until that happens your opinion doesn't count for much and the UK law remains valid and in place.

[p3t3r]

Ganymede yes... i've said more or less the same thing earlier in this thread.

 

but to say my opinion does not count for much? it is that, it is only an opinion. you can't say an opinion doesn't count for much unless that opinion is based on a flawed misunderstanding.

[Peterbard]

hi

 

I have given up with keeping on topic.

What you are saying as that the whole TCE is illegal because of EU law, well I am sorry but that is nonsense.

 

As far as the council tax and the provisions of the Human rights, i have heard this before also, I do not believe it breaches anything.

The debtor is given the chance to represent himself before the liability order is issued, and many have, i think that this is enough to fulfill the obligations regarding the section.

 

I know that when this was brought up in relation to a motoring offence it was proven to be the case, I cannot see the difference. However if you feel this to be the case you must bring the case against the local government finance act, in the supreme court (I suggest a letter to your MP in the first instance)and try and get the council tax enforcment regulations changed, it is pointless taking it up with the bailiff, he is simply enforcing an order legally made.

[Ganymede]

Ganymede yes... i've said more or less the same thing earlier in this thread.

 

but to say my opinion does not count for much? it is that, it is only an opinion. you can't say an opinion doesn't count for much unless that opinion is based on a flawed misunderstanding.

 

You are entitled to your opinion of course, but until the ECtHR rules along the same lines it doesn't count for much as the UK Court won't consider your opinion as relevant.

[p3t3r]

Dodgeball... you fail to answer questions. You know I do not know what TCE is, you fail to explain that to me also.

 

Yes, it is pointless taking this up with the bailiff since the bailiff right is given in UK statute. However, I am of the opinion that this, and the process leading up to the bailiff is somewhat contravening various EU laws.

 

Until someone escalates this to get a definitive answer from a legal body, then it is only an opinion.

 

I would appreciate if you want to continue discussing this that you answer questions when asked of you....