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Allan Wilson MSP
Cunninghame North
Speeches -
2006 |
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Speeches to the
Scottish Parliament in 2006
As Deputy
Minister for Enterprise and Lifelong Learning |
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Bankruptcy and Diligence
(Scotland) Bill - Allan Wilson Speaks in The Debate on Bankruptcy and
Diligence etc (Scotland) Bill: Stage 3 And Its Amendments - 30th November
2006 |
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Bankruptcy and Diligence etc (Scotland)
Bill: Stage 3
A debate on SP bill
50A, Bankruptcy and Diligence etc (Scotland), its amendments and motion
S2M-5044, in the name of
Allan Wilson.
The
Deputy Presiding Officer (Trish Godman):
We move to stage 3 proceedings on the Bankruptcy and Diligence etc
(Scotland) Bill.
Members should have the bill as amended at stage 2, which is SP bill
50A; the marshalled list, which contains all the amendments that have
been selected for debate; the supplement to the marshalled list, which
contains five manuscript amendments; and the revised groupings that I
have agreed, which are printed on pink paper to differentiate them from
the groupings that were printed on 29 November.
The division bell will sound and proceedings will be suspended for five
minutes for the first division on an amendment. The period of voting for
the first division will be 30 seconds. Thereafter, I will allow a voting
period of one minute for the first division after a debate. All other
divisions will last 30 seconds.
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Section 1—Discharge
of debtor |
The Deputy Presiding Officer:
Group 1 is on the bankruptcy discharge period. Amendment 12, in the name
of the minister, is the only amendment in the group.
The Deputy Minister for Enterprise and
Lifelong Learning (Allan Wilson): I seek
members' approval for amendment 12, which will update section 1(2). The
Enterprise and Culture Committee and the Subordinate Legislation
Committee agreed that the period of time for which a sequestration
should last should be changed only in the primary legislation. At stage
2, amendment 90 removed the reference to the affirmative procedure for
changing the discharge period. Amendment 12 will remove the power
itself.
I move amendment 12.
Murdo Fraser (Mid Scotland and Fife) (Con):
As the minister said, amendment 12 will remove the ministerial power to
vary the bankruptcy period, which the bill will reduce from three years
to one year. It would be unusual for Conservative members to oppose
measures to restrict ministerial powers, but we make an exception in
this case.
The central policy intent behind the bankruptcy part of the bill is to
reduce the bankruptcy period from three years to one year, but the case
for doing so has not yet been proven. The Enterprise and Culture
Committee received no convincing evidence as to why that policy intent
should be followed through in legislation. Indeed, the only reason that
seems to have been given for the proposal is that it will bring the
legislation into line with the legislation down south. That is an
insufficient policy reason to convince us that the proposal is the right
way to proceed. Since a similar change was introduced south of the
border, the number of personal bankruptcies has surged.
I do not know whether one year is the correct bankruptcy period, but it
might be useful to have available to ministers a subordinate legislation
power to increase the period from one year to two years, three years or
whatever, in the light of experience, without members having to come
back to the chamber to pass primary legislation.
We oppose amendment 12.
Allan Wilson:
I reaffirm that my proposal has the support of the Enterprise and
Culture Committee and the Subordinate Legislation Committee and that we
have agreed that the proposed process is the proper one by which the
Parliament should return to matters in future if there is a requirement
to do so. I argue that such a requirement will not arise in any event.
The Deputy Presiding Officer:
The question is, that amendment 12 be agreed to. Are we agreed?
Members: No.
The Deputy Presiding Officer:
There will be a division.
The Deputy Presiding Officer:
The result of the division is: For 77, Against 12, Abstentions 0.
Amendment 12 agreed to.
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Section 2—Bankruptcy
restrictions orders and undertakings |
The Deputy Presiding Officer:
Group 2 is on bankruptcy and minor and technical
amendments. Amendment 90, in the name of the minister, is grouped with
amendments 91, 13 to 16, 35, 36, 25, 37 and 194 to 202.
Allan Wilson:
The 19 amendments in group 2 are all minor technical amendments relating
to sequestrations, and make drafting improvements or changes that are
consequential on changes that were made at stage 2. Members will be
pleased to hear that I do not intend to speak to each amendment in
detail.
Amendments 90 and 91 clarify the period during which a debtor's gambling
may be considered when deciding whether their conduct should mean that a
bankruptcy restrictions order is made against them.
Amendments 13 to 15 update provisions on bankruptcy restrictions
undertakings so that they more closely mirror the same provisions
relating to bankruptcy restrictions orders.
Amendment 16 is simply a drafting amendment that inserts an "or" that
was missing from an amendment that was agreed to at stage 2.
Under the bill, the Accountant in Bankruptcy will administer debtor
applications for sequestration and will be required to update the
register of inhibitions when an application is refused or when appeal
against such a refusal is unsuccessful. That requirement is not
necessary, as there will be no prior entry on the register. Amendments
35 and 36 remove that unnecessary duty.
Amendment 25 corrects a reference in proposed new section 53A of the
Bankruptcy (Scotland) Act 1985. In proposed new section 53A(5A), the
reference to "subsection (6) above" should read "subsection (4) above".
Amendment 37 removes the reference to receiving orders in section 7 of
the Bankruptcy (Scotland) Act 1985. Receiving orders were abolished by
the Insolvency Act 1985, so they are no longer able to be used as a
ground to establish apparent insolvency.
Amendments 194 to 202 remove the word "permanent" from references to
"permanent trustee" in the Bankruptcy (Scotland) Act 1985.
I move amendment 90.
Amendment 90 agreed to.
Amendments 91 and 13 to 15 moved — [Allan Wilson] — and agreed to.
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Section 8 — Duties
of trustee |
Amendment 16 moved — [Allan Wilson] — and
agreed to.
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The Deputy Presiding Officer:
Group 3 is on bankruptcy and vesting of estate in
trustee and effect on dealings. Amendment 64, in the name of the
minister, is grouped with amendments 86 and 88.
Allan Wilson:
I apologise in advance for the fact that I will need to start in 1997 to
explain the amendments, which need a bit of explaining. I ask for the
patience and forbearance of colleagues as I explain why reform is
needed.
In 1997, the courts made a decision in the controversial case of Sharp v
Thomson. In that case, when the selling company became insolvent, the
buyers of a property lost out, because the receiver of the company kept
both their new home and the money that they had paid for it. That was —
I am sure everyone would agree — clearly wrong. The courts eventually
found a way to give the buyers justice, but to do so they had to tie the
law into a knot.
The Minister for Justice in 2000 asked the Scottish Law Commission to
look into the issues that had been raised by that case. In doing so, the
commission also took into account the 2004 decision of the courts in the
case of Burnett's trustee v Grainger, which dealt with a similar problem
in a sequestration. The commission identified a short gap during which a
buyer in good faith can lose out if the debtor is bankrupted between the
date on which the price is paid and the date on which the new title is
registered. In Scotland, a person buying a house or land pays the price
against delivery of a title deed, but he or she does not become owner
until the disposition is registered in the land register. That may take
up to three weeks, mainly because of the delays involved in the payment
of stamp duty land tax.
During that gap period, the seller holds both the property and the
money. If the seller becomes insolvent, right to the property and the
money transfer to the trustee for the creditor. Both the buyer and the
trustee then have a legal right to the property, and the first one to
register becomes the true owner. The situation is sometimes called the
race to the register. I see that some members recognise that term. The
buyer can be ruined if the trustee wins that race. Luckily, that is not
likely to happen, but the case of Burnett's trustee v Grainger made it
clear that there is nothing in law to prevent it happening.
Amendment 64, therefore, has four elements. First, it inserts two new
subsections into section 31 of the Bankruptcy (Scotland) Act 1985, the
effect of which is to handicap the trustee in the race to the register
by providing that the trustee in sequestration may not register the
property until 28 days after the date of sequestration. That will ensure
that a prudent buyer in good faith will win the race.
Secondly, it inserts new paragraph (aa) into section 31(8) of the 1985
act, which makes it clear that the law as settled in Burnett's trustee v
Grainger still stands, as that case turned on the nature of the
diligence of adjudication and the bill abolishes adjudication. That will
ensure that there will still be a race to the register and, therefore,
that the new protections in amendment 64 work as intended.
Thirdly, amendment 64 makes a small change to section 32(8) of the 1985
act, the effect of which is that, where property acquired by a debtor
after bankruptcy passes to the trustee under section 32, any dealings
with the debtor in relation to that property are void. That will settle
a point that has long been regarded as unclear. The provision was
included in the bill at stage 2, but it fits best with the other changes
that are made by amendment 64.
Finally, amendment 64 makes a further amendment to section 32 of the
1985 act. Section 32(9) of that act sets out the circumstances in which
dealings with a sequestrated debtor are not to be treated as void, such
as in the purchase of moveable goods in good faith. The protection in
section 32(9) will be extended to cover the particular circumstance that
is set out in proposed new section 32(9ZA). When people buy a property
and the transfer is complete only when a deed is delivered, it is
possible for them to buy in good faith, pay a fair price, take all
reasonable steps to find out whether the debtor was sequestrated and
still lose out, because it can take up to seven days before a search of
the register reveals a sequestration. The new provision will protect
third parties who find themselves in that situation. Such third parties
will be allowed to keep the property in question and the trustee in
sequestration will receive whatever was paid for the property. That is a
better deal.
Amendments 86 and 88 are consequential on amendment 64, and are
technical, tidying-up amendments.
I move amendment 64.
Murdo Fraser:
I thank the minister for his explanation. It took me back to halcyon
days spent in conveyancing tutorials when I was a law student. However,
to be serious, amendments 64, 86 and 88 deal with important issues. I
welcome the fact that the legal anomaly that has existed for some years
will be addressed by the Executive's amendments. They will receive our
support.
The Deputy Presiding Officer:
Does the minister have anything further to add?
Allan Wilson:
I want to put on record our thanks for the assistance of Professor
George Gretton of the Scottish Law Commission in helping us to get
through the legal and technical details.
Amendment 64 agreed to.
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Section16—Income
received by debtor after sequestration |
The Deputy Presiding Officer:
Group 4 is on bankruptcy and income payment agreements. Amendment 17, in
the name of the minister, is grouped with amendment 18.
Allan Wilson:
I seek approval of amendments 17 and 18. People who can pay, should pay.
That is as true for bankrupts as it is for everyone else. The bill,
therefore, sets up a system of income payment orders and income payment
agreements. Income payment orders will be imposed by the courts and come
with tough sanctions. For that reason, debtors will be able to enter
into voluntary income payment agreements. The bill as introduced did not
provide for what would happen if a debtor breached an income payment
agreement, which is not right. Amendments 17 and 18 rectify that.
Amendment 18 provides for the trustee to apply to the sheriff to convert
the remaining period of an income payment agreement into an income
payment order, if the debtor breaches the agreement. A debtor may stop
making payments under an income payment agreement after he is
discharged, even though the agreement runs beyond the date of his
discharge.
Amendment 17 allows the sheriff to consider an application to convert an
income payment agreement into an income payment order after the debtor
has been discharged. That is the only situation in which a sheriff will
be permitted to make an income payment order after the date of the
debtor's discharge.
I move amendment 17.
Amendment 17 agreed to.
Amendment 18 moved—[Allan Wilson]—and agreed to.
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Section 17—Debtor's
home and other heritable property |
The Deputy Presiding Officer:
Group 5 is on bankruptcy and notice of abandonment. Amendment 29, in the
name of the minister, is grouped with amendments 30 and 31.
Allan Wilson:
Amendments 29 to 31 deal with the process by which a trustee in
sequestration can abandon heritable property such as a house to the
debtor. The bill introduces provision for the trustee to give a formal
notice of abandonment of property to the debtor. No onus is placed on
the trustee or the debtor to make the notice available to anyone else.
When giving evidence to the Enterprise and Culture Committee at stage 1,
the Law Society of Scotland said that the letter of abandonment should
be registered, so that the buyer could see a complete picture in the
purchase searches. That would reassure everyone that the debtor had good
title to sell.
At stage 2, I lodged an amendment to introduce a duty on the trustee to
register the notice of abandonment of heritable property in the property
registers, as requested by the Law Society. There followed discussions
between my officials and the Registers of Scotland. I have lodged these
further amendments to ensure that the registration process fits better
with the existing system, while still delivering the policy of giving
proper notice to buyers.
The stage 2 change will make a difference only in cases where the
trustee has registered his title in the property registers, which
happens only in a minority of cases. Usually, the trustee relies on his
appointment to give him the right to deal with property. The property
register will, therefore, show the debtor as the registered owner, but a
search of the register of inhibitions will reveal the appointment of the
trustee, and the prospective purchaser will have doubts about the
debtor's title to sell. It is more appropriate to register a certified
copy of the notice of abandonment in the register of inhibitions. That
will ensure that a prospective purchaser who searches the register — as
all sensible buyers of land should do — will uncover both the
sequestration and any abandonment notice. The amendments will,
therefore, give the purchaser reassurance in even more cases than were
provided for by the stage 2 amendment.
I move amendment 29.
Amendment 29 agreed to.
Amendments 30 and 31 moved—[Allan Wilson]—and agreed to.
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Section
18—Modification of provisions relating to protected trust deeds |
The Deputy Presiding Officer:
Group 6 is on bankruptcy and the power to specify debts not discharged
under protected trust deeds. Amendment 65, in the name of the minister,
is the only amendment in the group.
Allan Wilson:
The impact on credit unions of the current increase in the number of
protected trust deeds was raised during the stage 1 debate. During stage
2, members lodged amendments to provide for credit union debt to be
preferred — that is to say, paid first — in a trust deed and for the
debt not to be discharged by sequestration. I said that I was happy to
consider the concerns that members expressed, after which the amendments
were either withdrawn or not moved.
I agree that trust deeds do not always work as they should. I have
consulted on planned regulations, which when made will fix many of the
problems that the credit unions have identified. I agree that credit
unions play a key role in helping people who suffer from financial and
social exclusion, and I want to act to help them if trust deeds are
causing them a problem. For that reason, I met the credit unions, which
were supported by Jackie Baillie and Christine May. I heard enough at
that meeting to persuade me that there are issues that need to be
explored and that it may indeed be the case that the trust deed
regulations should do more to help them. I agreed, therefore, that the
Executive would consult next year on a proposal to give credit unions
special treatment under trust deeds. I also agreed that I would lodge an
amendment at stage 3 to ensure that the trust deed regulations that are
enabled by section 18 can give credit unions special treatment, if that
is shown to be justified.
Under the Scotland Act 1998, providing for preferred debts in an
insolvency process is a reserved matter. However, saying that debts are
not cancelled by a personal insolvency process such as a trust deed is a
matter for this Parliament. Section 29 of the bill does something
similar for student loan debt in relation to sequestration. Amendment 65
has the effect that trust deed regulations may provide for the extent to
which a debtor is discharged from his or her debts by a trust deed, and
could be used to provide that a trust deed does not discharge a credit
union debt.
I move amendment 65.
Murdo Fraser:
The issue of credit unions was raised by the Enterprise and Culture
Committee and debated at stage 2. The minister has lodged amendment 65
to address some of the committee's concerns, which we welcome, but there
is a wider concern about protected trust deeds. The committee considered
the way in which the bill deals with them, and there is a concern that
the Executive has not properly joined up its thinking on the future of
protected trust deeds with the other reforms in the bill. Protected
trust deeds are valuable, not least because they are administered by the
private sector, not by the Accountant in Bankruptcy. We need to address
the future of protected trust deeds in a comprehensive manner, working
with the insolvency profession. That approach is required, and it is
regrettable that it is not happening in tandem with the bill. However,
we are happy to support amendment 65.
Christine May (Central Fife) (Lab):
I thank the minister both for the productive meetings that he, Jackie
Baillie and I have had with the credit union movement and for the
efforts that he has made to address the movement's concerns.
The whole chamber knows how important the credit union movement is to
ensuring that there is responsible credit and responsible saving in some
of our poorer communities. However, the extension in provision of
financial products for which credit unions allow has meant a
consequential increase in bad debts. The fear that being able to recover
no more than 10p in the pound, which could lead to the insolvency of
credit unions, has been the real driver behind the efforts that have
been made on the issue.
I am more than happy to support what the minister is doing and I hope
that he, Jackie Baillie, the credit unions and I can continue our
dialogue and extend it to our colleagues down south in respect of their
responsibilities.
Allan Wilson:
At all times in this process, I have sought to engage with all partners,
from whatever sector of the industry they originate, including
insolvency practitioners and their representative organisations, which
this morning indicated their support for amendment 65. The consultation
that I propose as part of the process will provide different
stakeholders with a welcome opportunity to have their say. I have firm
views on how I would like the process to evolve, but I remain
open-minded about it and will happily take on board the views of others,
especially those of professional organisations and the individuals
concerned.
It will be possible to consult on the student loan option and it might
be possible to consult on the preferred debt option, if the United
Kingdom Government is willing to give us the green light. My officials
are due to meet the credit unions on 7 December to consider what further
evidence can be provided. More detailed advice on the scope of the
consultation will follow. The chamber should welcome that, as well as
the opportunity that it will afford to all stakeholders to ensure that
credit unions — which do a valuable job in promoting financial inclusion
and giving access to loans for some of the more financially excluded of
our fellow citizens — can do their job properly and help to promote
financial inclusion in its widest sense. I ask members to support
amendment 65.
Amendment 65 agreed to.
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The Deputy Presiding Officer:
Group 7 is on bankruptcy and the minimum debt limit. Amendment 19, in
the name of the minister, is grouped with amendment 22.
Allan Wilson:
The Bankruptcy (Scotland) Act 1985 set the debt threshold above which
someone can be sequestrated at £1,500. The bill as introduced set the
same threshold for the attachment of land and the sale of attached land.
There was concern both in the chamber and among some external
stakeholders that the threshold for land attachment was too low. I
listened to
those concerns and lodged an amendment at stage 2 to raise the lower
limit to £3,000, which meant that it would be possible to bankrupt a
debtor for a smaller debt than is needed to attach their land. That
would create an incentive for creditors to use bankruptcy to get at the
value in said land — a theme to which I will return later in the debate.
The point that I emphasise now is that bankruptcy is worse in many ways
for the debtor than land attachment. In particular, it affects all of
the debtor's property, including land, and can easily lead to the loss
of their home. It makes sense, therefore, to raise the debt threshold
for sequestration to at least the same level as that for land
attachment, which is what amendment 19 does. The qualifying debt limit
of £1,500 for creditor petitions could be changed by regulations, but
the Bankruptcy (Scotland) Act 1985 does not provide a similar power for
the limit that relates to debtor applications. It makes sense to enable
both limits to be varied by regulations, if required. As well as raising
the limits to £3,000, amendment 19 gives the Scottish ministers the
power to vary the limit for debtor applications by regulations.
I appreciate the importance of the debt limit. Amendment 22 will ensure
that regulations to change the thresholds will be subject to affirmative
procedure and will, therefore, be appropriately scrutinised by the
Parliament.
I move amendment 19.
Mr Kenny MacAskill (Lothians) (SNP):
We welcome the Executive amendments. Concerns were raised about the
minimum debt limit by members of many parties and people outwith the
chamber. We will debate land attachment at a later stage. There is some
difficulty with the limit that we set. Do we need the wisdom of Solomon
to decide whether it should be £15,000, £3,000 or £3,100? There was
general acceptance that £1,500 was far too low. Whether someone has a
household debt or has to take an emergency flight, a debt of £1,500 can
easily be racked up on a credit card or elsewhere.
Time will tell whether £3,000 is an appropriate threshold, which is why
we welcome not only the increased threshold but the opportunity to vary
it. The appropriate limit is a fluid matter: what is appropriate at this
juncture might not be appropriate in a year or several years' time.
However, amendment 19 is an advance on the threshold of £1,500, which is
far too low.
Allan Wilson:
I welcome the member's support. It will be important to return to the
limits, not simply in this debate but in the fullness of time. The
regulation-making power that we propose is the right one in such
circumstances.
Amendment 19 agreed to.
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Section
23A—Continuation of sequestration proceedings pending approval of debt
payment programme |
The Deputy Presiding Officer:
Group 8 is on bankruptcy and the power to continue petition for
sequestration pending payment of debts. Amendment 20, in the name of the
minister, is grouped with amendments 21, 23 and 24.
Allan Wilson:
At stage 2 I lodged an amendment that will allow sheriffs to continue
proceedings in sequestrations if a debt payment programme under the debt
arrangement scheme is applied for. Karen Gillon lodged an amendment that
went much further and sought to give sheriffs discretion to continue
petitions for sequestration more or less indefinitely and to grant only
if reasonable. That amendment could have led to long delays in the
sequestration process: such delays in making decisions would have harmed
the interests of debtors and creditors, so the amendment was withdrawn
and I gave a commitment to consider the matter further. I am not in
favour of giving sheriffs open-ended discretion to continue cases, but I
can see the sense in giving them a bit more leeway.
A debtor might be able to arrange to pay off, or otherwise satisfy, his
or her debts given a little time. Amendment 21 will allow sheriffs to
continue a petition for up to 42 days if debtors can satisfy them that
they are likely to be able to pay their debts within that period.
Although the amendment will allow some extra time for the debtor, it
still provides for a definite period, which will give creditors a clear
end date for proceedings and prevent unnecessary and lengthy delays
where there is no realistic prospect that a debt will be paid off.
Amendment 20 is consequential on the introduction of the provision in
amendment 21. To allow continuation of a petition will have implications
for the duties on trustees in particular. A trustee must offer to hold a
statutory meeting at which the creditors can take decisions about the
estate that is to be administered. The 1985 act states that notification
is to be issued within 60 days of the date of sequestration. Many people
take that to be the day on which sequestration is awarded, but the
Bankruptcy (Scotland) Act 1985 makes it clear that in a creditor
petition, the application date for bankruptcy is registered by the
court. That can have implications for the trustee, who cannot send a
notification until the hearing about the award of sequestration is
settled.
If a hearing is continued for more than a few days, as can happen, the
60-day time limit will run out quickly. The trustee would have to go to
court and ask for more time, which would be a waste of money and the
resources of the court. It is necessary to clarify that the notification
is to be issued within 60 days of the date of the award of
sequestration, for which amendment 23 provides.
I move amendment 20.
The Deputy Presiding Officer:
I ask Murdo Fraser and Karen Gillon to be brief.
Murdo Fraser:
I notice that the minister did not mention amendment 24 in his remarks.
I ask him to clarify his intentions in that amendment because I find it
to be completely incomprehensible. I am not sure whether it is badly
drafted or its intention is mistaken.
Although I will not oppose amendment 21, I draw the minister's attention
to concerns that have been expressed by the Law Society of Scotland, of
which I am a member, although not a practising member. The Law Society
is concerned that a continuation of sequestration proceedings could have
a number of negative effects. First, it would allow the debtor to
continue trading and dealing with others, which would give them the
potential to run up more debts. Secondly, it would delay the vesting in
the trustee of the estate the assets of the debtor for the benefit of
all creditors. Thirdly, it ignores the many interconnected time limits
that are set down in bankruptcy legislation and would therefore
jeopardise the proper operation of the sequestration process. The Law
Society says that if the measure is to be passed, there must be proper
analysis of the impact on sequestration and a proper review of time
limits. I ask the minister to address those points when he winds up.
Karen Gillon (Clydesdale) (Lab):
I thank the minister for lodging amendment 21. Although I appreciate
Murdo Fraser's comments, it is important to get right the balance
between the creditor and the debtor. It was clear in evidence that the
committee received that sometimes the petition to court is the key that
the debtor needs to take action to find alternative means of payment.
The continuation that is offered by amendment 21 will allow people who
can make alternative arrangements to pay their debts without proceeding
to sequestration and bankruptcy. Those can be difficult steps for
people to take, so I welcome the amendments in the group and hope that
Parliament will support them.
Allan Wilson:
I will speak first to Murdo Fraser's point. The significance of the
changes that will be made by amendments 23 and 24 is that the time
limits will run from the date on which sequestration is awarded. In a
creditor petition, that date is different from the date of
sequestration. The date of sequestration in those cases is the date on
which the sheriff grants a warrant to cite the debtor to appear at a
hearing to determine whether or not to award sequestration. The award of
the sequestration might happen days — or, in some cases, weeks — after
the date of sequestration. That will happen if the sheriff continues a
sequestration under proposed new sections 12(3AA) and 12(3B) of the 1985
act, which will be inserted by the bill. In such cases, the
sequestration could be awarded up to 42 days after the date on which the
warrant to cite is granted. The time could possibly be longer under
proposed new section 12(3B).
It makes sense to set those time limits in relation to the date of the
award being granted rather than to the date of the sequestration.
Otherwise, the trustee could be put in the position of having to do
things with unreasonable haste after the award of sequestration is made.
That is the relevance of amendment 24.
Karen Gillon asked about amendment 21. We have gone some way towards the
position in the amendment that Karen withdrew at stage 2. The sheriff
can continue a case when the debtor can demonstrate that he or she has a
reasonable chance of paying off, or otherwise satisfying, the debt
within six weeks. Six weeks is the defining period. I ask colleagues to
support amendment 20.
Amendment 20 agreed to.
Amendment 21 moved—[Allan Wilson]—and agreed to.
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Section 29A—Certain
regulations under the 1985 Act: procedure |
Amendment 22 moved—[Allan Wilson]—and
agreed to.
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Section 31—Register
of Floating Charges |
The Deputy Presiding Officer:
Before I move to the next group of amendments, I intend to use my power
under rule 9.8.4A to extend the time limit for that group only. The
debate must finish by 10.05.
The ninth group of amendments is on floating charges. Amendment 38, in
the name of the minister, is grouped with amendments 39 to 48.
Allan Wilson:
The amendments all relate to part 2 of the bill, which deals with
floating charges. Some of the amendments in the group are more
substantial than others; I will deal with those first and then with the
technical amendments.
Amendment 39 will give Scottish ministers the power to make regulations
as to the form of documents and notices, the particulars that they are
to contain and the manner in which they are to be delivered to the
keeper. Amendment 41 is consequential on amendment 39. Taken together,
they will extend the power so that it will be possible for the register
to be operated electronically.
In lodging amendments 42, 43, 44 and 45, we have again listened to
stakeholders. Amendment 42 will clarify the alterations to the terms of
the document that have to be registered. They include alterations to do
with the ranking of the charge with any other floating charge or fixed
security, or the specification of property that is subject to the
charge, or the obligations that are secured by the charge.
The new provision is subject to the existing minor exception in section
36(2), which will enable an agreement between the secured creditors in
which the debtor is not a participant to be registered, provided that
the debtor will not thereby be adversely affected. In that case, the
document of alteration will not have to be subscribed by the company
that is granting the charge.
Amendments 43 and 44 are consequential on amendment 42. Amendment 45
will clarify for the purposes of section 36(3) — which covers the
granting by the floating charge holder of consent to release the
property from the scope of the charge — that property is not to be
regarded as released from the scope of the floating charge because it
has ceased to be the property of the company that granted the charge.
Amendment 46 will remedy a problem that was identified by my good friend
and colleague Murdo Fraser at stage 2. It provides that, if there is an
insolvency in another European Union state that is the company's main
centre of interest, that will trigger the crystallisation of a Scottish
floating charge, which will mean that any searcher of the register, on
seeing such a notice, will be aware that foreign insolvency has
triggered crystallisation of the floating charge.
Amendment 38 is consequential on amendment 46.
Part 2 is exceedingly complex but it is important, so we will continue
to work with our stakeholders to ensure that the provisions work well.
In fact, we were doing that right up to this morning. If necessary, we
may need to adjust the provisions using our ancillary and transitional
powers.
I turn now to the technical amendments. Amendment 40 will clarify the
meaning of a document granting a floating charge to reflect the fact
that it is a company that grants a floating charge, albeit by means of a
document.
Amendment 47 will repeal section 140 of the Companies Act 1989, which is
consequential on the repeal of part 18 of the Companies Act 1985 by
section 39(1) of the Bankruptcy and Diligence etc (Scotland) Bill.
Amendment 48 will ensure that industrial and provident societies are
subject to the ranking sections of the bill in the same ways that
companies are.
I move amendment 38.
Murdo Fraser:
I want to thank the minister for addressing the concerns that I
expressed at stage 2 on the impact of floating charges.
Amendment 38 agreed to.
Amendment 39 moved—[Allan Wilson]—and agreed to.
|
|
Section 32—Creation
of floating charges |
| Amendment 40 moved—[Allan Wilson]—and
agreed to. |
|
Section 33—Advance
notice of floating charges |
| Amendment 41 moved—[Allan Wilson]—and
agreed to. |
|
Section
36—Alteration of floating charges |
| Amendment 42 to 45 moved—[Allan Wilson]—and
agreed to. |
|
Section 38—Effect of
floating charges on winding up |
| Amendment 46 moved—[Allan Wilson]—and
agreed to. |
|
Section 39—Repeals,
savings and transitional arrangements |
| Amendment 47 moved—[Allan Wilson]—and
agreed to. |
|
Section
42—Industrial and provident societies |
| Amendment 48 moved—[Allan Wilson]—and
agreed to. |
|
Section 43—Scottish
Civil Enforcement Commission |
The Deputy Presiding Officer:
Group 10 is on replacement of the Scottish civil enforcement commission
with the advisory commission.
Amendment 93, in the name of Kenny MacAskill, is grouped with amendments
94, 96, 98 to 110, 112 to 116, 118 to 120, 122 to 129, 131 to 147, 176,
207, 180, 189 to 193 and 203 to 205.
Mr MacAskill:
Amendment 93 is the principal amendment in the group — the others are
consequential. I thank the clerks of the Enterprise and Culture
Committee, who worked to ensure that the amendments were ready. The work
was complicated by the number of amendments that were consequential on
the principal amendment. It was not just that the clerks did their job;
they worked long into the night to ensure that Parliament would be able
to debate the amendments. Members will soon decide whether to agree to
them.
The principal question is this: do we wish to create yet another
commission — a Scottish civil enforcement commission — to supplant what
is currently a well-regulated and well-run profession? Why are we
seeking to do that? If it ain't broke, why are we seeking to fix it?
To be fair to the Executive, the proposal did have some logic at the
outset. The intention behind creating the Scottish civil enforcement
commission was to ensure that there would be regulation not only of
sheriff officers and messengers-at-arms — or judicial officers, as they
will be called — but of debt-collecting agencies. There is merit in that
idea and I commend the Executive for it. However, difficulties came to
light because many matters relating to debt collection are reserved; for
example, matters relating to consumer credit cannot be dealt with by
this Parliament. We were then left with the idea of the Scottish civil
enforcement commission, but such a commission would not address the
problem for which it was to be created at significant cost. All it would
do was replicate what we already have.
If the amendments in the group are not accepted, we will be creating yet
another commission — Mr Swinney is the man who usually comments on such
things. According to the Finance Committee, the set-up cost will be £1
million and the annual running cost will be £650,000. That money will be
spent, even though we already have a self-regulated system that costs
the state and the taxpayer not one penny. Will taxpayers get any added
advantage? No — not unless we regulate additional debt-collecting
agencies that currently come within the ambit and jurisdiction of
Parliament. There will be a huge cost but no additional benefit.
Those are those circumstances that led me to lodge amendment 93. We
should not create yet another commission at huge cost and we should not
seek to undermine the ethos and integrity of a profession that has
served the people of Scotland well for centuries.
Derek Brownlee (South of Scotland) (Con):
I am sympathetic to Mr MacAskill's amendments, not least because — as Mr
MacAskill said — a Scottish civil enforcement commission appears to be
the single most expensive way of tackling the problem that was
identified by the Executive in relation to regulating officers of court.
From a value-for-money perspective, it is rather worrying to read in the
policy options paper, which was considered prior to the Executive's
arrival at the decision to create another quango, the explicit
recognition that such a commission was the most expensive option on the
table. It was suggested that costs might be reduced by imposing new
functions at a later date to increase economies of scale. It is rather
bad policy not only to choose the most expensive option but to use a
throwaway line that suggests that the commission might take on other
functions.
There is another reason to support Mr MacAskill's amendments: the
Executive, having talked about a bonfire of the quangos and a moratorium
on the creation of new non-departmental public bodies, has not really
been able to explain why it is appropriate in this instance to create
another NDPB, at significant expense, as Mr MacAskill said. I understand
that the cost of running the commission would be about 10 times the cost
that is currently borne by the profession itself. The policy that
underlies the sections to which Mr MacAskill's amendments apply has not
been thought through properly.
Mark Ballard (Lothians) (Green):
I, too, speak in support of Kenny MacAskill's amendments. The Finance
Committee, of which I am a member, discussed the issue in its stage 1
report and said that it is not convinced that the option of creating an
NDPB is the correct one. That opinion was informed by the committee's
inquiry into accountability and governance issues, which considered not
only commissioners and ombudspeople but wider issues relating to NDPBs
and other arms-length public bodies. The committee found major problems
in the accountability, governance, oversight and scrutiny of NDPBs.
I have heard, anecdotally, negative things about messengers-at-arms,
particularly in relation to poinding. However, as Derek Brownlee said,
the evidence is convincing that a job that is currently being carried
out for £60,000 a year would be done by a Government body at a cost of
£650,000 a year, plus £1 million in set-up costs. We do not need another
NDPB doing a task that is already being performed perfectly adequately.
That is why I urge Parliament to support Kenny MacAskill's amendments.
Mr Jamie Stone (Caithness, Sutherland and
Easter Ross) (LD): I recall a lengthy
discussion on this issue in the Enterprise and Culture Committee. A
great weight of evidence was considered in a thoughtful manner by the
committee. I do not recall divisions on the matter; nor do I recall
contributions along the same lines from Mr MacAskill's and Mr Brownlee's
colleagues in the Conservatives and the Scottish National Party. I
suggest to members that if they were to support Kenny MacAskill's
amendments they would be flying in the face of the carefully weighed-up
deliberations of a committee of this Parliament — [Laughter.]
Allan Wilson:
Mr Stone is absolutely correct, because the amendments have been lodged
at the very last moment, with no discussion and no notice to anyone with
an interest, including, I understand, the Court of Session.
Murdo Fraser:
Will the minister give way on that point?
Allan Wilson:
Let me make the point.
The amendments seek to take the Scottish civil enforcement commission
out of the bill and replace it with some kind of advisory commission. As
Jamie Stone said, to date — ever since it was first consulted on in 2002
— there has been strong support for the creation of a Scottish civil
enforcement commission including, dare I say it, from the Society of
Messengers-at-Arms and Sheriff Officers. The principle of having a
Scottish civil enforcement commission was agreed at stage 1, and no one
lodged amendments on the matter at stage 2.
Mark Ballard:
Does the minister accept the genuine concerns of the Finance Committee,
and the committee's suggestion that there should be no commission until
the conclusion of the review of scrutiny of public services?
Allan Wilson:
The Executive recognised that in its discussions and deliberations with
the Finance Committee on the financial memorandum. The principle of the
Scottish civil enforcement commission was never in doubt. The Society of
Messengers-at-Arms and Sheriff Officers supported the principle, but we
are now told that it considers it to be a bad idea. It has changed its
tune. With all due respect to my good friend and colleague Kenny
MacAskill, he had no clear explanation for why that might be the case,
although he did hint at it. Perhaps I can help him with that. Could it
be that
the society is unhappy that I have not guaranteed that court officers
will be able to form partnerships only with other court officers? That
might explain the late amendments. I will have more to say about that
when I oppose Kenny MacAskill's amendments 52 and 206, which will be
debated later.
To introduce proposals on this scale, at this stage, without any proper
consultation — [Laughter.] Members may laugh — if that is what we can
expect from a putative SNP Executive, I despair.
Since Kenny MacAskill is determined to take us down that road, the
amendments are in front of us and we must deal with them. They propose
to set up a new advisory commission on judicial officers and, in a very
unclear way, to divide up the functions of the Scottish civil
enforcement commission. Mr Ballard mentioned the financial memorandum;
Kenny MacAskill's proposals are accompanied by no financial memorandum.
They will not be much cheaper — if they are cheaper at all. Not
unusually for a nationalist member, Mr MacAskill is asking us to write
him a blank cheque.
Despite what Mr MacAskill says, the amendments, if agreed to, are almost
certain to lead to a public body of sorts, which would cost as much as
the commission but would have none of its advantages. For example, they
would remove any role for the commissioner of public appointments in
Scotland or the Scottish public services ombudsman. They would lead to
public money being spent with no direct accountability to Scottish
ministers or to Parliament. The amendments would remove the requirement
for an annual report — something that I thought members would generally
feel was a good thing. The amendments would not create a coherent new
scheme, although that is no surprise, given the lack of notice,
consultation or a financial memorandum, never mind anything else.
I will give members examples of the technical problems. There would be
no scrutiny by Parliament of regulations that are made by the Court of
Session and the amendments would have the effect that Court of Session
orders would be enforced as if they were sheriff court decrees. How
would that work? A new advisory commission on judicial officers would do
nothing that
the Scottish civil enforcement commission could not, but what it would
do, it would not do as well. Importantly, it would not do something that
the commission will do, in that it lacks the wider remit to actively
develop the enforcement system towards greater effectiveness,
efficiency, fairness and transparency. I argue strongly that that is not
in the public interest. Contrary to what Mr MacAskill said, the
commission will consider debt collection. That will be part of its
functions and is covered in section 99 of the bill.
If I stand for any interest in this debate, it is the public interest
that comes with an NDPB and which we would miss under Kenny MacAskill's
proposal. Our proposal is about appointment processes, ethical standards
and complaints to the Scottish public services ombudsman, all of which
are in the public interest. I do not stand for any sectoral interest and
am surprised to see the Greens, nationalists and Tories all standing for
it. We stand for the public interest. I ask members to reject the
amendments.
Mr MacAskill:
The guffaws with which Jamie Stone's intervention was met say it all.
There is no requirement to comment on that.
I agreed with a great deal of what Mark Ballard said, and I am
sympathetic to it, but he is in danger of perpetuating a myth about
sheriff officers that has persisted since the days of the poll tax.
Mr Stone: What
about Alex Neil's silence in committee?
Mr MacAskill:
I have always felt that we should in debates focus on fundamental
principles, especially at stage 3. However, if Mr Stone wishes to get
into gratuitous insults, what about parties that have flip-flopped and
which gave commitments to the electorate but have reneged on them? We
need go back only to the single transferable vote in local government
and the abolition of tuition fees. On and on go the Lib Dem promises.
I think Mr Ballard's comments on sheriff officers were made
unintentionally. Sheriff officers and messengers-at-arms do an excellent
job in Scotland. They impose interdicts upon husbands who are battering
their wives and they get back children who have been abducted by errant
fathers. There were difficulties during the time of poindings and
warrant sales, but the sheriff officers and messengers-at-arms were
simply imposing the law that legislators created. They implement what
parliamentarians create and they do so effectively and efficiently.
Tommy Sheridan (Glasgow) (Sol):
Will Kenny MacAskill give way?
Mr MacAskill:
Not at the moment.
There may have been instances during enforcement of the poll tax in
which sheriff officers and messengers-at-arms acted unacceptably but, in
the main, they did so—
Allan Wilson:
Would the existence of a Scottish civil enforcement commission have been
a good thing or a bad thing in those dark days of poll tax debt
enforcement?
Mr MacAskill:
It would not have made any difference. As a practising agent who was
involved in the poll tax campaign — along with Mr Sheridan — I remember
doing what was appropriate, which was to write to the sheriff principal
objecting to various methods. When we did that, the sheriff principal
called the sheriff officers in and dealt with it. We did not need a
civil enforcement commission with a start-up cost of £1 million and
annual running costs of £650,000 thereafter; we had a sheriff principal
who dealt with the problem as part of his job.
Christine May:
Will Kenny MacAskill give way?
Mr MacAskill:
No — I have taken enough interventions for the moment.
Mr Wilson made the legitimate point that there are problems in respect
of the amendments' being lodged at a late stage. However, today's
manuscript amendments are in Mr Wilson's name and were lodged as a
result of understandable political pressure in respect of land
attachment — which we will debate later — from broad areas of civic
Scotland including, I think,
an editorial in today's edition of The Herald that castigates what Mr
Wilson seeks to impose on Scotland.
The amendments in the group are not ideal, but that is because Mr Wilson
has reneged on various undertakings that he gave when he met sheriff
officers. Thereafter, the Society of Messengers-at-Arms and Sheriff
Officers sought to speak to Executive civil servants and to negotiate
with them, but the civil servants refused to enter discussions.
If there are consequential problems with the amendments in the group,
they were brought about by the Executive's failing to listen, discuss
and act reasonably, never mind its going back on clear commitments that
the minister gave to sheriff officers.
Allan Wilson:
Does Kenny MacAskill have evidence for that latter charge?
Mr MacAskill:
We certainly have. The Society of Messengers-at-Arms and Sheriff
Officers has made freedom of information requests to see minutes of its
meetings with the Executive. Perhaps the minister is not releasing them
or perhaps, in civil service speak, notes were not kept. However, the
evidence is clear and, if Mr Wilson feels that the people in the Society
of Messengers-at-Arms and Sheriff Officers who are advising me are
telling lies, he should say so.
The Deputy Presiding Officer (Murray Tosh):
The question is, that amendment 93 be agreed to. Are we agreed?
Members: No.
The Deputy Presiding Officer:
There will be a division.
The Deputy Presiding Officer:
The result of the division is: For 39, Against 65, Abstentions 1.
Amendment 93 disagreed to.
|
|
Section
44—Information and annual report |
|
Section
45—Publication of guidance and other information |
The Deputy Presiding Officer:
Group 11 consists of minor and technical amendments with regard to
judicial officers. Amendment 95, in the name of the minister, is grouped
with amendments 97, 1, 66, 2, 3, 117, 121, 130, 51, 67 to 69, 9 to 11,
178 and 179.
Allan Wilson:
The amendments in the group, which are all minor and consequential,
relate to the Scottish civil enforcement commission and judicial
officers. Most of them simply clarify and improve the language of the
provisions that they amend; others are consequential on amendments that
we made at stage 2.
Two amendments in the group merit particular explanation. Regulation of
the new profession of judicial officer will be a central function of the
new commission, and amendment 51 expands the range of powers that will
be given to the commission's disciplinary committee for cases in which a
judicial officer has been convicted of an offence. The amendment will
enable the disciplinary committee to make an order restricting a
judicial officer's functions or activities for a period of time.
As we are all aware, the use of personal information must be closely
regulated. Amendment 97 endorses that by amending section 46 to provide
that information that is published by the commission and which relates
to informal debt collection must not be in a form that enables the
identification of judicial officers or persons against whom diligence
has been executed.
I do not propose to take up the Parliament's time by explaining the
minor amendments, but if any member has questions I will endeavour to
answer them.
I move amendment 95.
Amendment 95 agreed to.
|
|
Section 46—Published
information not to enable identification |
Amendment 96 not moved.
Amendment 97 moved—[Allan Wilson]—and agreed to. |
|
Section
50—Electronic publication |
The Deputy Presiding Officer:
Group 12 concerns electronic communications. Amendment 49, in the name
of the minister, is grouped with amendments 50, 53 to 56 and 58 to 60.
Allan Wilson:
There should be no barriers to using electronic communications for the
various processes that are created in the bill unless there is a
particularly good reason for using paper, and the amendments in the
group make some necessary changes that arise from that principle.
Amendment 49 changes section 50 to clarify that, when something is done
in writing under part 3 of the bill, which concerns enforcement, it can
also be done electronically. As a result, section 50 will become a more
general provision and it is therefore appropriate to move it to the end
of part 3, which is what amendment 50 will do.
Amendments 53 to 56 relate to the land attachment part of the bill.
Section 81 sets out which documents must accompany an application for a
warrant to sell land. Amendment 53 will make it possible for those
documents to be transmitted electronically and will clarify that the
requirement for a signature under section 81 can be satisfied by a
certified electronic signature. Amendment 54 will ensure that it is
possible for a creditor by electronic means to intimate in writing to a
tenant that notice has been given of the termination of a debtor's right
to occupy the land. Section 106 sets out which documents must accompany
an application for foreclosure and amendment 55 will allow those to be
transmitted electronically. Section 123 provides that an application for
a satisfaction order under residual attachment should be accompanied by
a copy of the schedule of residual attachment and may be accompanied by
other documents. Amendment 56 will enable those documents to be in
electronic form.
The final amendments in the group will insert new definitions into
section 199. Amendment 59 defines the term "certified electronic
signature" and amendment 60 defines the term "electronic communication".
Both terms are defined by reference to the Electronic Communications Act
2000. Given that the definitions will apply generally to the bill,
section 186(4) is no longer needed, as it provides a similar definition
for the money attachment part only; amendment 58 will remove that
section.
I move amendment 49.
Amendment 49 agreed to.
Amendment 50 moved—[Allan Wilson]—and agreed to.
|
|
Section 51—Judicial
officers |
|
Section
52—Appointment of judicial officer |
| Amendment 1 moved—[Allan Wilson]—and agreed
to. |
|
Section
55—Regulation of judicial officers |
The Deputy Presiding Officer:
Group 13 is on ownership and control of judicial officer businesses.
Amendment 206, in the name of Kenny MacAskill, is grouped with amendment
52.
Mr MacAskill:
The minister made some pejorative remarks about special pleading by
sheriff officers. To put the matter in context, amendments 206 and 52
seek to introduce into the bill the rules that regulated sheriff
officers previously. Back in 1991, when the rules were created — in
secondary, not primary legislation — it was made clear that sheriff
officers and messengers-at-arms should hold a commission and that there
is an ethos that goes with being a member of the profession, which is
part of our judicial system. Members who have been solicitors or
advocates — there are many of them — will be aware that people in the
judicial system have a responsibility not only in how they operate, but
to the court. That duty surpasses any duty that they as individuals have
to their clients, partners or others with whom they work. People in the
system understand that there is a higher ethos because of the
responsibility of the job or office that they hold. That is why, back in
1991, the rules made it clear that people had to hold a commission and
could not simply be a silent partner or a limited company that was based
wherever.
As I said, amendments 206 and 52 seek not to introduce new measures, but
to restore the previous status quo, which was introduced in secondary
legislation. What happened was that, in the wisdom of those elsewhere
and perhaps even here, we acknowledged that, in the modern world, there
was a need for solicitors firms to be able to become limited liability
partnerships. We did not realise at the time that the consequence would
be to open up an opportunity for access to be gained to sheriff officers
firms. As far as I am aware, it was not envisaged or intended that firms
of judicial officers, sheriff officers or messengers-at-arms would be
able to become limited liability partnerships. The aim was to deal with
the Law Society of Scotland and the legal profession. However, a
loophole opened up, an opportunity was seen and various firms moved in.
Some individuals have made substantial amounts of money and firms have
acquired shares in or ownership of various other firms. That is not
appropriate.
It would be a retrograde step if judicial officers in Scotland did not
have a commission from and a responsibility to either the Scottish civil
enforcement commission or the court under the auspices of which they
operate, but instead were convinced that their responsibility was to the
shareholders and the head office, whether that is in Delaware, Detroit
or south of the border here.
Amendments 206 and 52 would restore the previous status quo and would
protect not only sheriff officers firms and individuals, but the ethos
and integrity of the Scottish judicial system. As I said, people in the
system have a responsibility to the court and not simply to
shareholders, wherever they are located.
I move amendment 206.
Murdo Fraser:
Mr MacAskill has a fair case, but he does himself and his case no
favours in overstating it. Frankly, the use of terms such as "vultures"
does nothing to persuade other members to support him. The Enterprise
and Culture Committee considered the issue at stage 1. Those who have
ownership of a firm of sheriff officers or judicial officers need not
themselves be qualified — an argument has not been made for that. We
already have firms of sheriff officers that are owned externally and I
am not aware of any problems or difficulties that have arisen as a
result. There is therefore no evidence to suggest that a problem is
likely to be created. We should oppose unnecessary restraints on trade
if we are in favour of promoting business. Therefore, we will oppose
amendments 206 and 52.
Christine May:
The Enterprise and Culture Committee had a lengthy debate on the issue.
I recall that the convener did not have anything to say in dissent on
the matter. It is important to remember the client group with which the
officers deal — generally, they are not the sort of people who know how
to complain to the sheriff principal. Therefore, better regulation is
essential, which is why the new commission is essential.
Allan Wilson:
I am grateful to the members of the Enterprise and Culture Committee for
clarifying the issue. One reason why I changed direction on the matter
during the summer is precisely because of representations that the
Enterprise and Culture Committee and other external stakeholders made to
me. To the best of my knowledge and contrary to what Mr MacAskill said,
no one in the sector is saying no to limited liability partnerships.
It is usual to regulate the business arrangements of professions in one
way or another, because few professionals operate as sole practitioners
and it is commonplace for them to form business associations such as
partnerships. Those business arrangements must not work against the
public interest. There should be no split loyalties and people who
profit from the business should therefore be held to account for their
part in any malpractice. I therefore intend to ensure that all persons
who direct judicial officers in their functions are subject to scrutiny
by the civil enforcement commission, which we debated previously. That
is a clear and reasonable policy that is designed to protect the public
interest.
I accept that the policy could be implemented in various ways. We could
say that officers must go into business only with each other in what we
could call all-officer firms. Alternatively, we could say that
non-officers should have to pass some kind of fitness check, such as a
police check, or that non-officers could become associate members of the
profession. Perhaps the right approach is a mix of all three
possibilities, to allow different types of businesses to prosper in the
marketplace. It is important to be flexible whatever we do. That is why
I propose that Scottish ministers shall have a
power, under section 55(2), to make regulations prescribing the types of
business organisations that officers can form and related matters. I
believe that to be clearly in the public interest.
If the bill is agreed to today, I will consult on proposals for
regulating the business activities of officers, and encourage
contributions from everyone with an interest, so that we can find the
best solution together. Kenny MacAskill's amendments 206 and 52 would
cut across the power in section 56 and remove all the options bar one —
the all-officer firm. Why? My answer to that would be special pleading.
The amendments serve the interests of one group of court officers at the
expense of others and are part of an attempt by traditional court
officers in all-officer firms to handicap other court officer businesses
that have found a way to bring in partners with other skills and other
capital. Those businesses are among the most successful in the sector
but would be forced to reorganise if we pursued an all-officer firm
policy.
Those businesses tell me that there is room for everybody. We are keen
to find a solution that means that everyone can be properly regulated,
whether or not they are in an all-officer firm. Those businesses are no
keener on encouraging the sharp practices that were referred to by Mr
MacAskill than anyone else is. I agree with Murdo Fraser that it is
highly inappropriate to describe them as vultures. I think that they
deserve a say in the coming consultation in the same way as the
traditional court officers do. I want to keep an open mind with regard
to that process and I hope that others would
wish to do the same thing. That is the correct approach to the matter
and, therefore, I ask Kenny MacAskill to withdraw amendment 206.
The Deputy Presiding Officer:
I will use my power under rule 9.8.4A to extend the debate on this group
by two minutes, which is the time that you have in which to respond, Mr
MacAskill.
Mr MacAskill:
Points were made by Mr Fraser and the minister with which I have some
sympathy. To be fair, the sheriff officers were not seeking to be
luddite; they have advised me that they were prepared to consider
certain percentages and so on. The problem was that the minister refused
to negotiate or discuss the matter with them, which meant that,
accordingly, they were left with no option but to pursue the route that
was offered by my lodging of amendment 206, which is a
take-it-or-leave-it approach. The tragedy is that there might have been
room for some compromise, to which Mr Fraser alluded. That was not on
offer, however, and the Executive is to blame in that regard.
I want to make it clear that I am not referring to the existing sheriff
officers firms that operate in Scotland as vultures. Having met those
firms, I think that their ethos is different from that of other firms
and that it is not particularly beneficial. However, when I say that the
vultures are circling, they most certainly are. They are looking at the
money that is made by existing firms, such as those that operate beyond
the existing practices of commissioned officers only, and are aware of
the money that can be made. We already have a problem with predatory
lending practices in the area of consumer credit.
Unless we support amendment 206, we, as a people, will rue the day.
The Deputy Presiding Officer:
The question is, that amendment 206 be agreed to. Are we agreed?
Members: No.
The Deputy Presiding Officer:
There will be a division.
The Deputy Presiding Officer:
The result of the division is: For 20, Against 84,
Abstentions 0.
Amendment 206 disagreed to.
Amendments 100 to 104 not moved.
Amendment 66 moved—[Allan Wilson]—and agreed to.
Amendments 105 to 108 not moved.
|
|
Section
56B—Information from professional association |
| Amendment 109 and 110 not moved. |
|
Section
58—Investigation of alleged misconduct by judicial officer |
Amendment 2 and 3 moved—[Allan Wilson]—and
agreed to.
Amendments 112 to 114 not moved. |
|
Section
59—Suspension of judicial officer pending outcome of disciplinary or
criminal proceedings |
| Amendment 115 and 116 not moved. |
|
Section
60—Commission's duty in relation to offences or misconduct by judicial
officer |
Amendment 117 moved—[Allan Wilson]—and
agreed to.
Amendment 118 not moved. |
|
Section
60A—Commission's power in relation to judicial officer's bankruptcy etc |
|
Section 61—Referrals
to the disciplinary committee |
Amendment 120 not moved.
Amendment 121 moved—[Allan Wilson]—and agreed to.
Amendments 122 to 128 not moved. |
|
Section
62—Disciplinary committee's powers |
Amendment 129 not moved.
Amendment 130 moved—[Allan Wilson]—and agreed to.
Amendments 131 to 136 not moved.
Amendment 51 moved—[Allan Wilson]—and agreed to.
Amendments 137 to 140 not moved. |
|
Section 63—Orders
under sections 59 and 62: supplementary provision |
| Amendment 141 to 143 not moved. |
|
Section 64—Appeals
from decisions under sections 52, 59 and 62 |
| Amendment 144 and 145 not moved. |
|
Section 65—Judicial
officer's actions void where officer has interest |
| Amendment Amendments 67 to 69 moved—[Allan
Wilson]—and agreed to. |
Amendment 52 moved—[Mr Kenny MacAskill].
The Deputy Presiding Officer:
The question is, that amendment 52 be agreed to. Are we agreed?
Members: No.
The Deputy Presiding Officer:
There will be a division.
The Deputy Presiding Officer:
The result of the division is: For 20, Against 84, Abstentions 0.
Amendment 52 disagreed to.
|
|
Section 67—Effect of
code of practice |
|
Section 70—Land
attachment |
The Deputy Presiding Officer:
Group 14 is on service of the debt advice and information package.
Amendment 4, in the name of the minister, is grouped with amendments 5
to 8.
Allan Wilson:
The Debt Arrangement and Attachment (Scotland) Act 2002 introduced the
debt advice and information package. The package contains information
about enforcement as well as contact details for free local money
advisers who can help sort out any debt problem. The package helps
people with debt problems when they need help the most. I would argue
that the package is more than just a piece of paper and that it is part
of a wider effort that the Executive is engaged in to tackle problem
debt, which includes funding for more than 130 new front-line money
advisers.
The bill says that the new diligences of land attachment and residual
attachment are competent only if the creditor has given a copy of the
package to the debtor either before, or on service of, a charge to pay
the debt. A charge to pay lasts for up to two years, which could mean
that the package was provided long before the immediate need.
Accordingly, the time limits were changed by amending the bill at stage
2. The amendments in the group bring land attachment and residual
attachment into line with changes that were made at stage 2 for other
diligences. They provide that the package must be served within 12 weeks
of either the registration of a notice of land attachment or an
application to the court for a residual attachment order.
I lodged an amendment at stage 2 to introduce new section 73CA of the
Debtors (Scotland) Act 1987, which will require the creditor to provide
the debtor with the debt advice and information package before the
expiry of a 48-hour period that begins either with the serving of the
copy of the final decree, where property has been arrested as security
for a claim in a court case, or with the service of the schedule of
arrestment in other cases.
I lodged amendment 8 to ensure that the creditor does not provide the
package before the start of the 48-hour period. If the creditor provided
the package earlier, that might allow the debtor time to move funds, so
the amendment clarifies that the package must be served during that
period.
I move amendment 4.
Christine May: I welcome amendment 4,
which, again, follows long deliberations by the committee. I am grateful
to the minister for the time that he took to consider the
representations that were made in evidence from Money Advice Scotland,
Citizens Advice Scotland and others. Too often, debtors fail to take
advantage of the support that is available to them, perhaps because they
feel intimidated, or for other reasons. I commend amendment 4 to the
Parliament.
The Deputy Presiding Officer:
I do not think that any response is necessary, minister, so I will go
straight to the question.
Amendment 4 agreed to.
Amendment 5 moved—[Allan Wilson]—and agreed to.
The Deputy Presiding Officer:
Group 15 is on competency of land attachment. Amendment 148 is the only
amendment in the group.
Christine May:
The bill introduces the new diligence of land attachment, under which a
debtor's main dwelling-house can be attached and sold for a debt of
£3,000 or more. That merits sober consideration because the consequences
are extremely serious. We must ensure that the law provides a fair and
effective means for creditors to recover their money, but we must also
protect debtors from unfair or punitive recovery methods.
In the minister's comments on amendment 4, we heard about some of the
steps that he has taken to protect people's homes. Amendment 148
proposes a hierarchy of diligence, not to let debtors off the hook but
to ensure that creditors do not use such a serious recovery tool as
their means of first resort. According to the Scottish Law Commission,
when a creditor has a choice of different legal procedures, preference
should normally be given to that which involves the least coercion. In
its 1985 document, "Report on Diligence and Debtor Protection", the
commission expressed the view that bank arrestments and arrestments
against earnings are less intrusive than poindings and warrant sales. In
its 2000 document, "Report on Poinding and Warrant Sale", the commission
states:
"where a creditor had an option of using more than one diligence to
recover a debt, the law should facilitate his opting for arrestment or
earnings arrestment rather than poinding and sale."
That principle was brought into practice by the Debt Arrangement and
Attachment (Scotland) Act 2002, which introduced a hierarchy of
diligence for exceptional attachment orders, which replaced poindings
and warrant sales.
The 2002 act also provides that the creditor must show the sheriff not
only that they have taken reasonable steps to negotiate settlement of
the debt but that they have executed or attempted to execute a bank
arrestment or earnings arrestment first.
Land attachment ultimately involves the loss of the debtor's home. It is
a far more coercive measure than even poinding and warrant sale. My
amendment 148 proposes that the creditor must attempt other forms of
diligence—including exceptional attachment—before they can attach the
debtor's home. It is better for the debtor to lose high-value
possessions from within their home than to lose the home itself. The
amendment mirrors the relevant provisions in the 2002 act and is
consistent with the principle behind other forms of diligence.
I note that the minister has lodged manuscript amendments, which will be
considered later, but I will be interested to hear his response to the
points that I have made.
I move amendment 148.
The Deputy Presiding Officer:
We are very pressured for time, so I ask for three-minute speeches.
Tricia Marwick (Mid Scotland and Fife) (SNP):
I will be brief. Christine May's amendment 148 would introduce a
hierarchy of diligence and ensure that the creditor used other means to
try to recover their money before they attempted to sell the debtor's
house. It would not prevent the attachment and sale of a family home,
which we will discuss in the debate on group 17, but in the meantime, a
hierarchy of diligence is better than what is in the bill at the moment.
The introduction of a hierarchy would bring the bill into line with
previous legislation. We will support the amendment.
Murdo Fraser:
I will try to be equally brief. The part of the bill on land attachment
is one of the most contentious parts, and the committee considered it in
some detail at stage 1. We recognise that concerns have been expressed
about it throughout civic Scotland. Many members will have been lobbied
by Citizens Advice Scotland and other bodies that have concerns.
A range of amendments have been lodged on the matter. I can see what
Christine May is trying to achieve with amendment 148, but I am not
attracted to it. In practice, it would be difficult to implement and
enforce a hierarchy of diligence. For that reason, we are not inclined
to support amendment 148, but we will support some of the other
amendments on the matter when they are considered later.
Shiona Baird (North East Scotland) (Green):
We will support amendment 148. It makes sense to us to have a hierarchy
of diligence so that every effort is made to ensure that creditors use
the full range of approaches to debt recovery before they use the
ultimate sanction and impose homelessness.
The evidence to the committee made it clear how vulnerable people are
when they have huge debts. There is a tendency for them to ignore their
debts, not to open their mail and not to admit that there is a problem.
That suggests that we need a far less heavy-handed approach. The
creditor's aim is to recover as much of the debt as possible, but in the
end a heavy-handed approach can be counterproductive. A hierarchy of
diligence would ensure that every effort was made to use less punitive
methods of debt collection first.
The Deputy Presiding Officer:
Members' having exercised considerable self-restraint, I am able to be
more generous to you, minister.
Allan Wilson:
I would not wish to get preferential treatment. I will be as brief as I
can.
I fundamentally agree with everything that Shiona Baird said. That is
why I am introducing the crystallisation of debt and, potentially, debt
relief to the debt arrangement scheme, which is the single most
significant element of the bill.
The sale of land to repay debt is a serious matter for the debtor. I
therefore made sure that the bill includes strong debtor protections,
two of which I just mentioned. Like others, I understand why Christine
May believes that land attachment should be a diligence of last resort
and proposes that it should be at the top of a hierarchy of diligence.
However, I do not agree that her amendment 148 would improve the bill.
We must see land attachment in its context. It is a diligence that is
used to enforce court judgments. Any diligence comes at the end of a
long process—as Shiona Baird suggested—and the debtor will have had many
chances to sort out the problem that led to their land being attached.
In many cases, they will have ignored representations. However, it is
possible to stop a land attachment even after it has started. The debtor
has at least six months in which to get legal advice and pay, or put in
place an arrangement to pay, and they will be given the address of a
local money adviser who can help them to do that.
If we make creditors use other diligences first, the debtor might have
to pick up the bill. I do not see much point in forcing a creditor to
try to arrest a bank account if they strongly suspect that little or
nothing will be recovered.
There are other reasons why the amendment would not work, however well
intentioned it is. It borrows the language of section 48 of the Debt
Arrangement and Attachment (Scotland) Act 2002, but there is a critical
difference. Under the 2002 act, the court considers the evidence and
gives permission to attach the home. In land attachment, the creditor
would have to take the risk that the court would decide that the
attachment was unlawful months after the event. That is not fair to
creditors.
Even if there was time today to consider a hierarchy of diligences—I and
others have been criticised for lodging last-minute amendments—the list
in amendment 148 is too short. It does not mention ordinary attachment,
money attachment or, crucially, inhibition, which is another diligence
that affects land. The omission of inhibition would have an undesirable
effect. Inhibition is a personal bar on the debtor's disposing of land.
It does not attach land. The one purpose of land attachment is to
enforce the breach of an inhibition, so the exclusion of inhibition from
such a hierarchy would make it unworkable.
Careful work would be needed to ensure that all the diligences fitted
into a hierarchy, even if that were for land attachment alone. I agree
with Murdo Fraser that that cannot be done today. In any event, the
process would be technical and complex. If the Scottish Law Commission
had been able to do that work, I am sure that it would have done it
before now. That is not to say that I am not predisposed to doing such
work in due course, but it would require consideration by all
practitioners and consensus and buy-in across the board. That is not
possible in the debate on amendment 148, so I ask Christine May to
withdraw her amendment.
Christine May: I thank members and the minister for their comments.
Having listened to the minister and considered his amendment 209, which
was lodged after my amendment 148, I am persuaded that he takes on board
the point that I make and that he is concerned to discuss with others
how such diligences might be ranked. Given that, I ask to withdraw
amendment 148.
Tricia Marwick:
No.
Frances Curran (West of Scotland) (SSP):
No.
Carolyn Leckie (Central Scotland) (SSP):
No.
The Deputy Presiding Officer:
That takes care of the question whether the Parliament agrees to
withdrawal.
The question is, that amendment 148 be agreed to. Are we agreed?
Members:
No.
The Deputy Presiding Officer:
There will be a division.
The Deputy Presiding Officer:
The result of the division is: For 28, Against 74, Abstentions 1.
Amendment 148 disagreed to.
|
|
Section 72—Notice of
land attachment |
The Deputy Presiding Officer:
Group 16 is on minimum debt limits for land attachment. Amendment 149,
in the name of Christine May, is grouped with amendments 151 and 152. I
would be grateful if Christine May completed speaking to the amendments
in three minutes.
Christine May:
For most home owners, losing the family home is the ultimate sacrifice,
which they would wish to avoid at all costs. As we have said, the new
diligence of land attachment will allow a home to be put under threat
for a debt of as little as £3,000. Amendments 149 and 151 would increase
the debt limit to £5,000.
Increasing the figure to £5,000 would offer low-income debtors some
protection. Citizens Advice Scotland's research shows that one third of
its debt clients had debts of less than £5,000. Increasing the limit
would decrease the risk of a creditor pressuring a debtor to take on
further, potentially unsustainable, borrowing to avoid losing their
home.
Amendment 152 proposes to increase the figure for the not-worth-it test
from one third of the debt that is owed plus expenses to a minimum of
£5,000. At the same meeting that I mentioned, the minister said that
land should not be sold for small debts. Amendment 152 would ensure that
there was sufficient equity in a dwelling-house to realise a minimum of
£5,000 plus expenses, rather than allow a debtor and their family to
face homelessness in order for a debt of as little as £1,000 to be
recovered.
Increasing the limits would not be the whole solution, but it would
ensure that a serious step was not taken for a small sum of money.
I move amendment 149.
Tricia Marwick:
Amendments 149, 151 and 152 would increase from £3,000 to £5,000 the
debt limit for granting a land attachment. As Christine May said
earlier, land attachments are a far more coercive measure than poindings
and warrant sales, as they involve the ultimate loss of a debtor's home.
Christine May's amendments do not address the principle of land
attachment of the family home, which will be discussed later. However,
the amendments would make the situation marginally better than that
which the Government proposes, so we will support them.
Shiona Baird:
Surely it is draconian to include a diligence that will result in
homelessness on accruing a debt of just £3,000, although, to be fair,
the minister raised the ceiling from £1,500 to £3,000. Christine May's
amendments would afford greater protection overall to debtors who face
land attachment. In view of ever-rising house prices, will the minister
reconsider the Executive's policy intention of keeping the limits for
land attachment and sequestration the same? It would not help if the
amendments adversely affected people with low incomes and low assets so
that they could not access bankruptcy until their debt reached the
higher level. Facing up to debt sooner rather than later will always
benefit both parties.
Allan Wilson:
I do not disagree with Shiona Baird's last point, although arguments can
be made about having the limits out of kilter. I introduced provisions
for no income, no asset clients to access debt relief that were not in
the bill originally.
The amount of debt that is needed before land can be attached and sold
was debated widely at stage 2, when the lead committee agreed to my
amendment to double the debt limit to £3,000. It is right to keep a
close eye on the debt limit — I do not dispute that. The limit cannot be
so high that creditors have an incentive to bankrupt the debtor or so
low that debtors lose their land as the result of a relatively small
debt.
I told the committee and I repeat that I am not stuck on £3,000. I would
consider a higher figure if the argument for change were overriding. I
understand and respect the concerns of members who have spoken about the
impact of the diligence. In the next group of amendments, we will
consider amendments that I believe will offer Christine May all the
assurance that she needs.
Tommy Sheridan:
If the minister does not have a problem with the actual debt limit, how
did he arrive at the proposed debt limit? The average house price is
£135,000. Is the limit a percentage of that?
Allan Wilson:
It is a fact that the process is relatively arbitrary. I doubled the
previous limit of £1,500 to £3,000 and kept the debt limits for land
attachment and bankruptcy together because we do not want to give
creditors a perverse incentive to bankrupt debtors as opposed to using
the more debtor-friendly system of land attachment. That was the
rationale.
The arguments in favour of a higher figure are not any better or more
reliable today than they were a few weeks ago. Increasing today the debt
limit, which was agreed at stage 2, would not be rational. A strong
argument remains in favour of keeping the land attachment and bankruptcy
debt limits in line with each other. The Parliament considered the issue
this morning. There is no strong argument for raising the bankruptcy
limit now. As I explained, if the attachment debt limit were £5,000 and
the bankruptcy limit were £3,000, many creditors would find it easier to
bankrupt a debtor than to attach land.
I have said before, and it is worth repeating as many times as needed,
that one reason for introducing land attachment is that it is better for
home owners than bankruptcy. The reason is simple: in a sequestration,
ownership of the home automatically transfers to the trustees for the
creditor. A land attachment is only a security and can be stopped by a
time-to-pay measure. Later, I will move amendments to make it clear that
people who make a reasonable request for time to pay will have that
time.
I do not support amendments 149, 151 and 152, but I am happy to keep a
close eye on the issue that Christine May has raised.
I would consider changing the debt limits for bankruptcy and land
attachment at any stage, using the powers that I am asking for. The
argument that Christine May has made can, therefore, be reconsidered
after the bill becomes law—as I hope that it will today. I therefore ask
Christine May and those who agree with her to work with me to ensure
that the new diligence of land attachment strikes the right balance. I
have an open mind about the limits. I believe that the limits should be
the same, so that there is no perverse incentive to bankrupt rather than
attach—such an incentive would mean that people would lose their home
because it would transfer automatically and be vested with the trustee
in a sequestration application.
I say to Christine May and those who support her that they should work
with us. We will consult, if necessary, and will change the limits if
there is demand for that. I ask her to withdraw amendment 149 and not to
move amendments 151 and 152.
Christine May:
Amendment 149 was lodged before the minister lodged his amendments,
which will be considered later. Having listened carefully to what he
said, especially his willingness to engage in dialogue after today, I am
satisfied that he has taken on board the points that I have made. I look
forward to having those discussions with him and urge the members who
have supported me in the debate to join me in that dialogue. I seek to
withdraw amendment 149.
The Deputy Presiding Officer (Trish Godman):
Does any member object to Christine May withdrawing amendment 149?
Members:
Yes.
The Deputy Presiding Officer:
The question is, that amendment 149 be agreed to. Are we agreed?
Members:
No.
The Deputy Presiding Officer: There will be a division.
The Deputy Presiding Officer:
The result of the division is: For 29, Against 74, Abstentions 1.
Amendment 149 disagreed to.
|
|
Section
81—Application for warrant to sell attached land |
The Deputy Presiding Officer:
Group 17 is on attached dwelling-houses and statements on land
attachment. Amendment 208, in the name of the minister, is grouped with
amendments 150, 209, 153, 154, 210, 211, 157, 158, 177 and 212. This
group includes all the amendments that are printed on the supplementary
marshalled list.
Allan Wilson:
I will be brief. I hope to come back to the non-Executive amendments in
the course of the debate.
As has been said, this is a bill for enterprise. Land attachment is one
of the new diligences that will give businesses the modern and effective
enforcement system that they should have. I repeat that people who can
pay, should pay and that people who will not pay their debts must face
what follows, even if that means that, as a last resort, their home is
attached and ultimately sold.
Of course, we must tread carefully where homes are concerned. Land
attachment must be part of a well-balanced package that offers help and
support to people who have debt problems. In the run-up to the debate, I
tried to explain the 21 debtor protection measures that can be taken
prior to any home being sold, and I believe that the bill, as it appears
today, offers a well-balanced package. Indeed, it ensures a better
balance between the interests of creditors and debtors.
I will need to say more about why land attachment strikes the right
balance in reply to what is likely to be said by members who have lodged
amendments in this group. However, before I do that, I will say why my
amendments should be agreed to.
I have listened to the concerns of members such as Gordon Jackson and
Christine May, among others. I have also listened to the concerns that
were expressed to the lead committee. Although I have not seen the
convener of that committee all morning, I note that he has lodged
amendments in this group. I do not agree entirely with what has been
said, but there is good sense in it that ought to be recognised by
people such as me. That is a reasonable way to proceed.
Gordon Jackson has proposed that the Executive reviews the take-up of
land attachment in reports to Parliament after 15 months. That is
something that we can and will do; however, 15 months may be on the
short side if we are to have useful information to guide policy. The
Executive will, therefore, write to Parliament on the take-up of land
attachment 18 months after the bill comes into force. We will also lay
out the facts and figures for all to see and discuss.
Tommy Sheridan:
Is the minister at least prepared to agree that the take-up of land
attachment would not tell the whole story as far as the operation of
this part of the bill is concerned? The concern of most homelessness and
anti-poverty charities is that the threat of land attachment would force
debtors to take loans from other sources and dig themselves into a
deeper debt hole in order for the land not to be attached. The figures
may not, therefore, show just how bad an effect land attachment could
have.
Allan Wilson:
I am conscious of that concern. That is why I have introduced debt
crystallisation and, prospectively, debt relief into the debt
arrangement scheme. That will give debtors access to good, solid, free
money advice to encourage them to use a system that would stop, if not
prevent, the land attachment process. I am conscious of those concerns,
which is why I have done all that I have for low-income, no-asset
clients. At the point at which the debtor enters the scheme, debt
crystallisation will stop the debt rising and interest rates increasing.
I want to ensure that that will lead, prospectively, to debt relief —
something that does not exist currently. I have taken all those concerns
on board.
Gordon Jackson has also proposed that the Scottish ministers take a
power to vary the matters that the court can take into account in
deciding whether to grant a warrant to sell a home, with particular
regard to factors that might cause homelessness. Selling a home and
homelessness are, of course, not the same thing. That, too, is a
sensible proposition. I believe that the evidence from the review will
show that sales are rare and that sales of homes are rarer still — a
point that was made earlier. However, no one can know how a new
diligence will work until it is used. What if land attachment did not
work as it is expected to work? I would want to be able to return to the
Parliament and ask it to agree the changes that might be needed to
address any imbalance. Therefore, I would like to take even broader
powers than Gordon Jackson suggests. In that way, the Executive would be
able to tackle any unexpected effects of the attachment of land and
homes, not just the possible problems with homelessness, which have been
mentioned, important though they would be.
Executive amendments 208 and 209 accordingly add a new power to section
81 that will enable ministers to specify that a creditor may not apply
to the court for a warrant to sell the dwelling-house. That could be
used to exempt sole or main residences from the sale stage of the
diligence. It could also exempt primary, as opposed to secondary,
residences and could be used widely to protect the debtor's interests
above and beyond the 21 debtor protections that I have already built
into the process.
Executive amendments 210 and 211 add a new power to section 87 that will
enable ministers to change the matters that the court can take into
account when it is asked to grant a warrant to sell a dwelling-house.
The power could be used to make the sheriff pay more attention to the
risk of homelessness or it could go further. Sheriffs are already
required to take such matters into account when they make a decision,
and they do so. Importantly, those powers could be used at any time. I
do not propose any time limit on their use into the future; it will be
possible to use them at any time that it is thought necessary. They are
not tied to a particular report or to one problem. I therefore ask
Gordon Jackson and Alex Neil to withdraw their amendments.
I move amendment 208.
Christine Grahame (South of Scotland) (SNP):
As everyone can see, I am not Alex Neil, but I will do my best. I will
speak to amendments 150, 153 and 154 in my colleague's name, and against
amendments 208 and 209 in the minister's name. We support the amendments
in Gordon Jackson's name.
Figures from Citizens Advice Scotland show that the average
unsecured—and I stress the word "unsecured" — debt of their clients in
2006 was more than £13,000 and that most people in Scotland have
unsecured debts in excess of £3,000, which is the trigger for a land
attachment. That is most people in Scotland. I have a quote from
Citizens Advice:
So what about the can pay, won't pay debtors? There is a range of
effective options for dealing with them at the moment, such as land
attachment against second and subsequent homes, inhibitions, bank and
earnings arrestments, attachment orders of all varieties, and bankruptcy
itself. Alex Neil's amendment 154 makes it explicit that, in all cases,
the sheriff should consider all the debtor's circumstances before moving
to apply a land attachment. At the moment, the sheriff simply has to
"have regard" to those circumstances, and he can only defer and not
reject a land attachment.
As for the minister's last-minute, fig-leaf amendments, they contain the
words "may" and "could". The provision is not mandatory, it is
discretionary and it uses too small a word. It would not be binding. It
is simply a fig leaf to cover up and try to jettison our worthy
amendments, which are backed, I might add, by Citizens Advice Scotland,
the Law Society of Scotland, Shelter Scotland, Money Advice Scotland,
Govan law centre, Castlemilk law centre, and, indeed, the editor of The
Herald. What more can I say?
Christine May:
Will Christine Grahame therefore join me in asking the minister to use
his winding up remarks to agree to consult those various bodies when he
is drawing up the detailed regulations?
Christine Grahame: | |
