The European Union (Withdrawal) Act 2018 empowers ministers to create statutory instruments to address a variety of legal difficulties arising from the United Kingdom’s exit from the EU. One of the most pressing concerns is the potential for flaws in preserved EU law as a result of the UK’s leaving.
Some authorities, such as establishment fees and levies, require a Minister to follow the affirmative approach. In addition, when a Minister utilises the power to correct flaws or implement a withdrawal agreement, the affirmative procedure is occasionally required. When it’s required, it’s because the SI |
- gives a UK public authority legislative power.
- involves a fee for a function which a UK public authority would exercise.
- creates or widens a criminal offence, or
- creates or amends a power to legislate.
Otherwise, the Minister has the option of proposing the negative procedure or opting for the affirmative procedure even if it is not required.
The 2018 Act established a new sifting system in Parliament to ensure that the approach chosen is appropriate. This is because, although affirmative SIs will always be debated and require active approval by both Houses, negative SIs will not always be debated.
How does the new sifting system work?
If the Minister opts for the negative method, he or she must provide a proposed negative statutory instrument to both Houses, which contains a draught of the proposed SI as well as a memorandum stating why the Minister believes the SI should be handled in this manner.
After the proposed SI is laid, a committee in each House – the European Statutory Instruments Committee in the Commons and the Secondary Legislation Scrutiny Committee in the Lords – has 10 sitting days to evaluate it and recommend whether it should proceed through the negative or affirmative procedure.
There are three possible results of the sift |
- If neither committee makes a recommendation within the 10-day timeframe, the Minister may sign (make) the SI and lay it under the negative procedure.
- The committees agree that the instrument should be subject to the negative procedure, which means that the Minister can make and lay the SI in the manner described above.
- If either committee disagrees and recommends the SI should be under the affirmative procedure.
If a committee recommends that the SI be put through the affirmative procedure, the Minister can agree and draught the instrument. The Minister, on the other hand, has the discretion to disagree with a committee and proceed with the negative procedure, but must first submit a written statement stating why they disagree.
How We Operate at Shergroup
We work under a statutory licence given by the Lord Chancellor as High Court enforcement experts. The introduction of Schedule 12 of the Tribunals Courts and Enforcement Act 2007 and the HCEOA Code of Conduct, as well as the delayed implementation of the Taking Control of Goods Regulations in 2013 and 2014, considerably changed our operational structure.
We feel these are positive changes since they have clarified the methods that enforcement agents conduct when seizing goods to settle court judgments.
Instead of “seize,” we now say “take.” The result is roughly the same, but the statute and regulations provide uniform information in the form of final notices summons. These liability orders and referrals are required by law and must be completed in the manner specified by the Regulations. Here, we’re offering reminders and summonses, which we’ve then supplemented with our observations as law enforcement officers.
Notice of Enforcement
Creditors can serve a Notice of Enforcement, also known as a Distraint Order Notice, on you to recover the cash owed to them. Even though any creditor can serve a Notice of Enforcement, everyone except HMRC and landlords must go through the courts to get one.
HMRC can use this route to deal with businesses who refuse to pay taxes owing, and you will most likely have received contact from them regarding unpaid liabilities.
What does a notice of enforcement achieve?
The notification will provide the debtor with a certain amount of time (seven days) to settle their obligations or come to an agreement. The creditor will pursue a controlled goods agreement if the debtor does not settle within seven days.
Getting a Notice of Enforcement is a major issue. It must be acted upon as soon as possible, or commodities may be confiscated under a Controlled Goods Agreement, therefore acting as soon as the Notice is issued should be preferred.
What is a controlled goods agreement (CGA)?
A CGA classifies the goods that can be sold to settle the debt. It was previously known as a walking possession agreement. An estimate of the goods’ accurate values will be included in the agreement.
The debtor obtains an extra seven days to settle their bills in full by signing a CGA. If you refuse to sign, the creditor’s agent might arrange for the goods to be removed right away. If the debtor signs the CGA but fails to pay their debts in full on time, the goods might be seized.
- The All-Important Notice of Enforcement
The Notice of Enforcement is the most significant of all the statutory notices. It effectively offers the Judgment Debtor some breathing room and a chance to come up with the finances needed to pay the judgment. If a case involving the enforcement procedure comes before the Master or District Judge, the standards for serving the Notice are stringent and will be investigated by the Court.
The enforcement agency appointed to enforce the Writ of Control sends the Notice of Enforcement or NOE. The Regulations allow for only one notice to be delivered, however, it is best to practise to send the Notice to each address where enforcement is likely to occur. Debtors should not expect to receive reminders of the Notice.
Notices can be issued by letter or by email, and we prefer to send ours by email whenever possible because we can stamp each email as delivered and read. The NOE specifies the debt amount as well as a £75 Compliance Stage cost. The NOE specifies the exact date and time by which the sum specified in the NOE must be paid. If the balance outstanding (including the £75 Compliance fee) is not paid by the due date, a bailiff/enforcement agent will pay a personal visit to your home. The enforcement agent has the authority to seize goods, which are described as any property except land in the statute. The Notice of Enforcement is attached.
- Controlled Goods Agreement
Since the Enforcement Agent has not been paid, a Controlled Goods Agreement (formerly known as a Walking Possession Agreement) can be imposed, which lists the goods to be sold. This practice was once known as seizures,’ but it is now characterised as ‘taking control of goods.’
A Judgment Debtor can continue to utilise the goods mentioned and taken under legal control by entering into a Controlled Goods Agreement, also known as the control of goods agreement. The “Walking Possession Agreement” form has been replaced by this one. When a Judgment Debtor signs this document, he or she acknowledges that the goods specified are under the enforcement agent’s control until the whole amount owed (including bailiff fees) is paid. The Controlled Items Agreement will stipulate that if the Judgment Debtor does not comply with the agreement’s provisions, the goods may be removed and sold. There will be an additional charge for this. The Taking Control of Goods (Fees) Regulations 2014 now explicitly define fees.
The debtor, a person authorised by the Judgment Debtor, or a person “in apparent authority” must sign the Controlled Goods Agreement. The Agreement must include a thorough description of the things (for example, computer, television, car, etc.) as well as the brand and model (if known), serial number, colour, and any distinguishing marks. A copy of the Controlled Goods Agreement is attached.
- Warning of Immobilization
If an enforcement agent has installed a clamp on a vehicle or even an aircraft, this notice must be supplied. The enforcement agent merely needs to sign this notification. Here is a copy of the Immobilization Warning.
- Notice of Intention to re-enter premises
This notice will be delivered if the Judgment Debtor fails to meet the payment terms outlined in the Controlled Goods Agreement. The purpose of the notice is to inform the Judgment Debtor that the enforcement agency plans to return to the premises to inspect the goods or, more typically, to remove them for sale. This Notice must describe the Controlled Goods Agreement in full and explain why it failed. The Notice of Intention to Re-Enter Premises is attached.
- Notice after Entry or Taking Control of Goods (on a highway) and Inventory of Goods Taken into Control
This notice will inform the Judgment Debtor of the enforcement agent’s decision to enter a property or take control of a vehicle on a roadway. This Notice must include information on how to make payment as well as the date and time by which payment must be made. The products will be released after complete payment has been received (or possibly in rare circumstances, may be released if the Judgment Debtor enters into a payment arrangement with the enforcement agent). Only the enforcement agent’s signature is required on this notice. A copy of the Notice of Entry or Taking Control of Goods is attached (On a Highway).
- Notice that goods have been removed for storage or sale
When the things are removed, this notice must be given. The prices charged to date, including any ‘expenses,’ as well as the daily or weekly storage fee, must be detailed in this message. Payment in full (including any storage fees) prevents the goods from being sold and allows them to be collected. Only the enforcement agent’s signature is required on this notice. The Notice indicating Goods Have Been Removed for Storage or Sale is attached.
- Inventory
This notification serves as notice that things have been taken into custody, and it just requires the signature of the enforcement agent. A copy of the Inventory can be found here.
- Notice of Sale
This notification must be sent before the sale of products and must include the name of the co-owner (if applicable) as well as a list of all fees that will be levied (including any expenses). Charges for daily storage must also be indicated. The notification must include the prospective sale’s date, time, and location. The goods may be collected if full payment is made. The notice must include a description of the products (model, serial number, etc.) as well as a valuation. The sale is contingent on meeting the reserve price. If this requirement is not met, a new time and location for the sale must be announced at a later date. A copy of the Notice of Sale is attached.
Summing-up
The public can expect a level of consistency in the information they get regarding the enforcement process as a result of the reforms made in recent years. This is a welcome outcome of the government’s years of dialogue with all stakeholders. Our objective is to provide online access to our enforcement services to all parties involved in the enforcement process so that they may keep track of where they are in the process.
Creditors and debtors will be able to check in on the process, make payments, and seek additional assistance through our online platform. The statutory Notices are part of the process of enforcing a judgment and should be understood in the context of a judgment’s progression from notice of its existence (Notice of Enforcement) to sale (Notice of Sale). There are opportunities for the situation to be resolved in the interim, and it is critical to have visibility into where people are on a timeframe that isn’t always clear.
Contact Shergroup for more information on Notice of Enforcement and other statutory instruments.
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