Repeal The Taking of Goods Regulations

[Marincor]

We need to have this act repealed. By we I mean CAG, MSE, TPUC, PePiPoo members all need to unit and organise to repeal this abusive piece of legislation.

 

Cameron states he only wants a 100,000 signatures to look at a law. Lets give him a million signatures with as much social network pressure as we can mount to force the corporate controlled press to take up the issue.

 

What do you CAG members think?

[old bill]

That's one way of doing it. However, the Taking of Goods Regulations are secondary legislation and vulnerable to strike-down by the courts. In the legal sense, when a legal provision is struck down, it is brought to an end.

 

From what I have seen of these regulations, there are parts of it that are incompatible with the Articles and Protocols within the Human Rights Act 1998. It only needs someone to challenge a bailiff's actions on behalf of a public authority - e.g. local authority, HMCTS - and to cite incompatibility with HRA in their pleadings and skeleton arguments to a court, and it could be "Game Over" for the incompatible parts, if not the Regulations themselves, if a judge rules in the Claimant's favour and strikes down the incompatible provision(s) or the Regulations. Human Right Act matters can be heard by a County Court which has the power to strike down secondary legislation under HRA.

[Coughdrop]

I know the FMOTL people are pushing the HRA angle on this and lots of other things, it seems their hot potato at the moment. Could you give a detailed example of where you think the HRA argument would win in court?

[brassnecked]

I know the FMOTL people are pushing the HRA angle on this and lots of other things, it seems their hot potato at the moment. Could you give a detailed example of where you think the HRA argument would win in court?

 

Here is how it might pan out regardless of FMOL brigade:

 

A couple of third party cars taken and sold as EA decides scribbled receipt for cash and v5 along with insurance cert in name of owner not sufficient, creditor is council clueless about interpleader as Equita trained them in the new Regulations, permits the EA to push for interpleader, owner cannot afford the cost of the fees and the value of the car to deposit into court so it is sold by the EA and innocent loses out. That of itself is a breach of HRA so innocent goes after the council on that head.

 

Court rule incompatible with HRA, council appeals and it will eventually end up with the Supreme Court then the European Court of Human Rights. Don't th inkthe LibLabCon three party stitch up will alter things it would stop their enforcers getting all medieval on debtors and doing a Sheriff of Nottingham take & sell on their goods. After all they owe the state, so want their pound of flesh.

[old bill]

Here is how it pight pan out regardless of FMOL brigade:

 

A couple of third party cars taken and sold as EA decides scribbled receipt for cash and v5 along with insurance cert in name of owner not sufficient, creditor is council clueless about interpleader as Equita trained them in the new Regulations, permits the EA to push for interpleader, owner cannot afford the cost of the fees and the value of the car to deposit into court so it is sold by the EA and innocent loses out. That of itself is a breach of HRA so innocent goes after the council on that head.

 

Court rule incompatible with HRA, council appeals and it will eventually end up with the Supreme Court then the European Court of Human Rights. Don't think the LibLabCon three party stitch up will alter things it would stop their enforcers getting all medieval on debtors and doing a Sheriff of Nottingham take & sell on their goods. After all they owe the state, so want their pound of flesh.

 

Your analysis is pretty much spot-on, BN. The interpleader provision is incompatible with Article 1 of the First Protocol of ECHR (aka Rome Convention) which deals with Protection of Possessions. With very few exceptions, a public authority has no right whatsoever to deprive a person of their possessions. HRA issues can be adjudicated in a County Court by a District Judge. Where is is blindingly obvious an EA has been a complete idiot (though some parts may be missing where some EA are concerned), a local authority would, in my view, be somewhat foolish to appeal a ruling against them under HRA. It would be more economical to terminate the contract with the civil enforcement company that employs a disingenuous or dishonest bailiff whose actions have lead to the litigation than spend £1,000s of taxpayers' money trying to overturn a court ruling that the local authority made a bad decision in letting a bunch of Rent-A-Thugs run amok in a borough doing what they like and breaching the law.

 

Whether we like it or not, the Human Rights Act (and European Convention on Human Rights) has a far more profound effect on the laws the UK Parliament enacts and has enacted since ECHR was signed in Rome in 1953 than many care to admit. One only has to look at the ruling by the European Court of Human Rights in Strasbourg against internment in Northern Ireland during the Troubles to see the contempt some of our politicians have for the rule of law and, most alarmingly, the rule of International Law, which ECHR is, and which supersedes a country's domestic laws.

 

An increasing number of judges are questioning the logic of some of the laws Westminster is enacting and applying the HRA's Articles and Protocols where they can see the HRA is either being overlooked or blatantly disregarded. A statement of compatibility with HRA by a Secretary or Minister of State on a statute or statutory instrument means little if the legislation is incompatible with HRA. A certificate of incompatibility, in the case of a statute, or strike-down, in the case of a statutory instrument, by a court, is a lot more serious than, say, telling a Secretary or Minister of State they are a buffoon, as such a step by a court is a damning indictment of the Secretary or Minister of State concerned and that Secretary or Minister of State's contempt for the law and the rule of law.

[brassnecked]

Oldbill, it is entirely possible that Taking Control of goods for debt is now of itself incompatible with Article 1 of the First Protocol, the provisions of the interpleader expressly so as in an innocent has to pay the value of their posessions plus possibly double its value in fees to prevent their sale for a debt nothing to do with them at all. The government and MOJ along with the councils and all who will benefit from enforcement will write it off as Collateral damage. Wonder if they would call an innocent third party using reasonable force as in a right hook to the EA's chin when they attempt to tow the car for which he has shown V5 receipt and an insurance cert, or will plod arrest them for the offence of Obstructing the EA?

[old bill]

Oldbill, it is entirely possible that Taking Control of goods for debt is now of itself incompatible with Article 1 of the First Protocol, the provisions of the interpleader expressly so as in an innocent has to pay the value of their posessions plus possibly double its value in fees to prevent their sale for a debt nothing to do with them at all. The government and MOJ along with the councils and all who will benefit from enforcement will write it off as Collateral damage. Wonder if they would call an innocent third party using reasonable force as in a right hook to the EA's chin when they attempt to tow the car for which he has shown V5 receipt and an insurance cert, or will plod arrest them for the offence of Obstructing the EA?

 

As you will know, BN, in order to make a lawful arrest for Obstructing A Police Officer In The Execution of Their Duty, it has to be established and proven beyond all reasonable doubt that the police officer was, firstly, in the execution of their duty and, secondly, that they were lawfully in the execution of their duty. It, therefore, follows that if an EA is acting without lawful authority, a person cannot obstruct them as such offence can only occur where the EA is acting within the law. Same applies to a police officer who is being a tit and making up the law as they go along, gets caught out by a legally-savvy member of the public who points out they are spouting bovine excrement, tries to unlawfully arrest them and gets a slap. A shrewd custody sergeant would kick a constable's backside around the station yard a few times for trying to con them into accepting a charge for something like that.

[Coughdrop]

It's the sort of thing which will need some big hearted barrister who wants to make a name for themself to take it on pro bono. The potential costs otherwise could be huge.

[brassnecked]

It's the sort of thing which will need some big hearted barrister who wants to make a name for themself to take it on pro bono. The potential costs otherwise could be huge.

 

If we had a whipround, maybe some cost could be covered; oops who would we whip and who would wield the cat?

[HCEOs]

I'm surprised at the comments as I thought the Act/Regs improved things overall for the 'man in the street'.

[brassnecked]

I'm surprised at the comments as I thought the Act/Regs improved things overall for the 'man in the street'.

 

I don't think they do, the exciting range of sale, storage and interpleader fees, along with the virtual doubling of application fees from £80 to £155, have seen to that. In an extreme case with a can't pay, any increase in the debt with any level of fees compounds the issue making repayment less likely.

[Coughdrop]

I know what you mean HCEO, and I also sympathise with Brassnecked. In some ways things are better for 'the man in the street' in that things are to an extent' far more predictable. However, most bailiff activity tends to be council tax or parking fine related. The fees for these have undoubtedly risen and are still open to huge abuse.

 

As far as HCEO's go, I think things may (I don't know enough to be sure) be simplified under the new regulations.

 

There are still many areas where things could potentially be abused, and this is a genuine concern as we all know a number of bailiffs (and enforcement agencies) will maximise the opportunity to do just this.

[old bill]

It's the sort of thing which will need some big hearted barrister who wants to make a name for themself to take it on pro bono. The potential costs otherwise could be huge.

 

HRA matters can be pursued through a county court. If pleadings and skeleton arguments are done correctly, a local authority's room to manoeuvre is going to be restricted.

 

In the case of an innocent third party who has had their £20,000 car seized by a disingenuous/dishonest EA for someone else's debt, the basis of the claim against the local authority would be under Article 1 of the First Protocol of the Human Rights Act 1998 (Protection of Possessions), namely -

 

a. that the claimant has not been adjudged by a court of law or other legally-convened tribunal to be in debt to the local authority;

 

b. consequently, the local authority has no course of action against the claimant;

 

c. the person named on the Liability Order or Warrant is not the claimant;

 

d. the local authority and its contracted Enforcement Agent have no lawful authority or right in law to take the claimant's possessions in respect to another person's debt;

 

e. the actions of the local authority and its contracted Enforcement Agent are incompatible with the claimant's inalienable and inviolate Convention right under Article 1 of the First Protocol of the European Convention on Human Rights 1953 and Schedule 1, Human Rights Act 1998 in that a person is entitled to the enjoyment of their possessions without interference from a public authority unless so deemed necessary by a court of law or other legally-convened tribunal and in accordance with that permitted by the Convention.

 

Nothwithstanding, Section 6, Human Rights Act 1998 makes it clear that it is unlawful for a public authority to perform any act which is incompatible with a person's Convention rights. Public Authority includes a government agency or department, a local authority, a commercial entity acting as or on behalf of a public authority or a person whose function is of a public nature. It also includes a court of law and a legally-convened tribunal.

 

Any person considering pursuing and enforcing their Convention rights should seek advice and guidance from a legal professional from the outset.

 

Local authorities know that what they do must be compatible with ECHR and that the law, as it stands, makes it clear the Convention rights are inalienable (cannot be taken away) and inviolate (cannot and must not be breached).

 

Articles 17 and 18 deal with attempts to destroy and restrict Convention rights.

 

Given, there are legal professionals who bring the HRA into disrepute by launching ridiculous claims and judges know this, but if a claim is properly pleaded and argued there is no reason for it to be escalated to the higher courts.

[Coughdrop]

What chance do people think this would have of succeeding? I think whatever the rights or wrongs the case would have little chance of success. Someone prove me wrong please.

[old bill]

What chance do people think this would have of succeeding? I think whatever the rights or wrongs the case would have little chance of success. Someone prove me wrong please.

 

Oh ye of little faith.

 

The instances in which a person would pursue a local authority under the HRA through the courts, in practice is, I suspect, likely to be not very often. If the arguments are put to a local authority as soon after an EA has unlawfully seized third-party goods as possible, the local authority cannot really force the third party to interpleader as to do so would be unlawful as it would amount to a restriction of a person's Convention rights. My gut-feeling is that the only time such cases are likely to end up in court is in the event of local authority intransigence/stupidity. Having said that, however, would a local authority be prepared to risk the third party bringing a successful claim under the Torts (Interference With Goods) Act 1977 where damages tend to be on the generous side.

[Coughdrop]

We all know the fantastic work done by outlawgo on CT under the old regs. Look how often he hit the 'look after our own' situation. I think this will be similar sadly. Nothing would make me happier than for someone to prove I'm wrong.

[old bill]

We all know the fantastic work done by outlawgo on CT under the old regs. Look how often he hit the 'look after our own' situation. I think this will be similar sadly. Nothing would make me happier than for someone to prove I'm wrong.

 

The Human Rights Act is a completely different creature to mainstream legislation, Coughdrop. Its basis is Common Law, as opposed to Statute Law. It is an Act, making it primary legislation, so that those with ill intention cannot tinker with it and gradually erode and destroy people's rights, rights that people fought and died for in World Wars. Do not forget that ECHR is International Law and supersedes UK domestic law, making it a requirement that all legislation enacted by the UK parliament must be compatible with the ECHR Articles and Protocols.

 

I go back to my previous post that the likelihood of a third party being forced to go to court in order to enforce their ECHR rights in the face of an intransigent local authority is not very often. However, I suspect that abuse of the interpleader provision by civil enforcement companies may be the catalyst for such action and the interpleader suffering the fate of strike down, due to it being secondary and not primary legislation.

[Coughdrop]

Time will tell!

[old bill]

Time will tell!

 

I will agree with you on that point. All we have to agree on now is which one of us is going to start a book on how long it takes the civil enforcement industry to bring the interpleader provision into disrepute.

[brassnecked]

I will agree with you on that point. All we have to agree on now is which one of us is going to start a book on how long it takes the civil enforcement industry to bring the interpleader provision into disrepute.

 

By June?

[Marincor]

Excellent Post Guys!

 

Someone mentioned compatibility with other laws which is something I'm looking into at the moment to see if the Taking of Goods Act supersedes laws that I have found very useful to keep council bailiffs at bay, namely:

 

The Local Government Finance Act 1992 - SCHEDULE 4 Enforcement Regulation 17 Termination of Proceedings, which states:

 

“(1)Regulations under paragraph 1(1) above may provide that in a case where—

 

(a)proceedings under the regulations have been taken as regards the recovery of any sum mentioned in paragraph 1(1) above; and

 

(b)the outstanding amount is paid or tendered to the authority to which it is payable; the authority shall accept the amount, no further steps shall be taken as regards its recovery,”

 

I have used this to enable tenants to pay the full amount owed to the council only - regardless of bailiff involvement! I'm worried now this new act will still allow the bailiff to claim fees after the council has been paid.

 

I still say we are digging into the minutae and should organise to have it repealed because I'm in absolutely no doubt in this current depression many will suffer grave financial hardship as a result of this corporate-friendly legislation.

[Coughdrop]

I don't believe this has been repealed, though as you will know the whole of the Distress for Rent Rules have and I believe all the amendments to it.