Abolition of Poindings and Warrant Sales Bill: Stage 2
The next item is stage 2 consideration of the Abolition of Poindings and Warrant Sales Bill.
Tommy Sheridan is here, accompanied by Mike Dailly. Members should not put questions to Mr Dailly, as he will not speak at this meeting—his views will be given through Tommy Sheridan.
We are familiar with the procedure for stage 2. There will be occasions this morning when we can dispose of amendments en bloc. Members will recall how we do that.
I welcome the Deputy Minister for Justice and his team to the committee yet again.
I wish to raise a point of order, to which you referred earlier. I attempted to lodge an amendment that, in effect, would have allowed poinding in cases of business debt. The amendment was not accepted by the clerk; I understand that that was on your instruction, convener, in line with standing orders. However, I wish to ensure that the fact that I tried to lodge the amendment is recorded. Perhaps you could say why the amendment was not accepted.
Towards the end of last week, Mr Gallie submitted an amendment along the lines that he has described. Clearly, it is I who must decide ultimately on the admissibility of amendments. Rule 9.10.5 states that an amendment is inadmissible if
"it is inconsistent with the general principles of the Bill".
Such amendments are known as "wrecking amendments". The decision on whether an amendment is admissible is entirely one for the convener, and there is no right of appeal.
Mr Gallie's amendment was a particularly difficult case, which I spent much of Friday considering. It might be argued that it was a borderline case, but in the end I felt that it went sufficiently to the heart of the bill to be ruled inadmissible. My decision does not prevent Mr Gallie from submitting a similar amendment at stage 3.
I accept what you say. However, my amendment was submitted not as a wrecking amendment, but was intended to address a specific issue that I felt was important. I believe that the Parliament has registered its will on the bill, and I certainly did not intend to stop its progress.
I appreciate that. The phrase "wrecking amendment" is in inverted commas because it is the colloquial term for any amendment that cuts at the heart of the bill. The bill is entitled the Abolition of Poindings and Warrant Sales Bill, so Mr Gallie's amendment would have challenged the intention of the bill.
I do not propose to discuss further the admissibility of the amendment. If any other member wants to raise a point of order on the matter, they should indicate now that they want to do so.
On that point of order, I have raised with the Procedures Committee the issue of publicising rejected amendments and the reasons for their rejection, as there may be a case for amending standing orders. The convener was under no obligation to explain in public the reasons for rejecting Phil Gallie's amendment.
There may be occasions this morning when the convener's casting vote will come into play. I advise members that, although I will use my deliberative vote as I deem appropriate, if I have to use the casting vote, I will do so to support the status quo. In relation to the group of amendments on when the bill comes into force, the status quo is that there is no provision on when the bill will come into force. Potential procedural difficulties would arise if I did not take the option of using the casting vote to support the status quo. I am flagging that up in advance so that people do not get confused, as I may use my two votes in two different ways.
Section 1—Abolition of poindings and warrant sales
Amendment 5, in the name of the minister, is grouped with amendments 9, 10, 12 to 18, and 20 to 33, also in the name of the minister.
Good morning. I am pleased to be at the Justice and Home Affairs Committee again and to have another opportunity to speak to amendments to legislation.
I will preface my remarks by saying that the Executive amendments, particularly in this group, have been lodged in a spirit of helpfulness to remedy perceived defects in the text of the bill. They are intended to ensure that the bill meets the aims of its sponsor and the committees that examined the bill at stage 1. The amendments are mostly technical in nature.
I also wish to put on record the Executive's commitment to advancing the abolition of poindings and warrant sale and to ensuring that the legislation is enacted. The Executive is committed to those aims. We have tried to demonstrate our willingness to fulfil the wishes of Parliament by lodging these and other amendments.
I do not want to say any more about the amendments, as they are largely technical, and it may save time for later debate if I stop now.
I move amendment 5.
Amendment 5 agreed to.
Amendment 6, in the name of the minister, is grouped with amendment 35, in the name of Tommy Sheridan, amendments 7 and 8, in the name of the minister, amendment 36, in the name of Tommy Sheridan, amendment 37, in the name of Alex Neil, and amendments 11 and 19, in the name of the minister.
If amendment 6 is agreed to, under the rule of pre-emption, I cannot call amendment 35.
I intend to speak to Executive amendments 6, 7, 8, 11 and 19.
Amendment 6 goes hand in hand with amendments 8 and 11. Together, they seek to make improved arrangements for transitional and savings provision. Amendment 6 deletes subsection 1(2) of the bill because it is defective. That subsection appears to seek a saving for cases that have reached the stage of having a warrant of sale issued in summary warrant proceedings. However, there is no warrant of sale in cases that are carried out in pursuance of a summary warrant.
Amendment 8 deletes subsection 1(4) of the bill. That subsection seeks to save the provisions of the Debtors (Scotland) Act 1987 where a warrant of sale has been granted prior to the bill coming into force. It, too, is defective because it does not disapply section 1(1) of the bill and as a result a warrant of sale could not be executed.
Unfortunately, the bill as drafted does not provide clear or comprehensive saving or transitional provisions. Amendment 11 attempts to provide the clear and comprehensive saving and transitional provisions that are necessary for legal certainty.
Two provisions that need to be saved when the bill comes into force are specified in amendment 11. The amendment also gives the Scottish ministers power to make further saving and transitional provisions that will be necessary.
At least two provisions have been identified as needing to be saved when the bill comes into effect, and there may be others. The first of those provisions is section 33 of the Bankruptcy (Scotland) Act 1985, which sets out property that is exempt from sequestration. It does so by reference to property that is exempted from poinding. The other provision that needs to be saved is section 99 of the Debtors (Scotland) Act 1987, which applies a number of protective provisions that were set down for poinding and sale to other types of diligence. If those provisions were not saved when abolition took effect, there would be no list of property that was exempt for sequestration, and the important protective measures would not be available for other diligences.
Amendment 11 also paves the way for making the appropriate transitional and saving arrangements that must be put in place when poinding and warrant sale are abolished. On the date of abolition, there will be some instances in which the procedures have been started but not completed. Transitional provisions set out what should happen in those circumstances. For example, they will set out what is to happen to items that have been poinded but not sold at the time of abolition. Transitional provisions will also be necessary to determine such matters as the effect that abolition will have on rights that are acquired by a creditor by virtue of their having carried out a poinding before abolition took place. For example, provisions will be necessary to determine the ranking of a creditor's right to share in the estate of a debtor who is sequestrated.
Clear and comprehensive saving and transitional provisions are a necessary part of any legislation that changes existing law. Clear and certain arrangements must be set out for those who are affected by the new legislation and for the courts that have to apply it. We believe that amendment 11 achieves that purpose.
Amendment 7 provides for the repeal of part II of the Debtors (Scotland) Act 1987 in its entirety. The bill does not repeal sections 16, 17, 18, 23 or 26 of that act, perhaps because those sections are applied to other forms of diligence. However, for legal certainty, those sections should be kept only for the specific purposes for which they are required. Amendment 11 now provides for that.
Amendment 19 inserts part II of the Debtors (Scotland) Act 1987 into the bill's schedule of repeals. That is necessary because amendment 7 repeals part II of the 1987 act in its entirety.
I am happy to speak on the other amendments in the group at this stage, or to do so later.
I move amendment 6.
I call Tommy Sheridan to speak to amendments 35, 36 and 37.
I accept that the first group of amendments was of a technical and cleaning-up character, but I do not accept that that is the case for this group of amendments. We accept the need for further clarity on what warrant sales may proceed after implementation of the bill. The amendments provide that clarification in relation to summary warrant and ordinary decree. Amendment 37 provides full clarity on the application of those warrants. We do not interfere in any way with the Bankruptcy (Scotland) Act 1985. We are worried that the Executive is seeking to take more power than is necessary to direct the bill after it is enacted—it is seeking unnecessary, overriding powers.
Amendments 35, 36 and 37 would provide the clarity that is required so that, when the bill is passed, no one is left in any doubt as to what warrant sales can proceed and what warrant sales can not. That is what is important here.
I oppose the Executive amendments because they would grant an unnecessary set of powers in relation to transitional arrangements and complicate rather than clarify matters.
I will respond by speaking about amendments 35, 36 and 37. Essentially, this is a set of Executive amendments versus a set of non-Executive amendments that attempt to do the same thing.
We understand what the movers of the non-Executive amendments are attempting to do. In fact, on 11 September we wrote to Mr Sheridan to explain our position and to offer the opportunity to discuss saving and transitional provisions. If, after the outcome of any vote on this section, a lack of clarity persists and Mr Sheridan is interested in meeting us, we will be happy to meet him to clarify matters further before stage 3.
Amendment 35 is defective because it would still leave section 1(2) referring to a warrant of sale in pursuance of a summary warrant. As I said, there is no separate warrant of sale in cases that are carried out under the summary warrant procedure.
Amendment 36 is a saving amendment that would allow creditors who had had a warrant of sale granted before the bill came into force to continue with their warrant sale procedure, but it does not address all other necessary saving and transitional issues. As I said in connection with amendment 11, clear and comprehensive saving and transitional provisions are a necessary part of any legislation that changes existing law. There must be clear and comprehensive arrangements for those who are affected by the new legislation and for the courts that have to apply it. The Executive amendments in this grouping meet that test, but amendment 36 does not.
Amendment 37 tries to provide for a definition of a warrant of sale in cases that are carried out under the summary warrant procedure but, again, we believe that it is technically defective. There is no warrant of sale in cases that are carried out in pursuance of a summary warrant. The amendment refers to the intimation of a forthcoming sale under the summary warrant procedure, which paragraph 16 of schedule 5 to the Debtors (Scotland) Act 1987 provides has to be to be sent to the court. That may be an attempt to provide a suitable equivalent of warrant of sale in summary warrant cases, but it undermines the application of the bill to non-summary warrant cases. That is why we believe that amendment 37 is defective and should not be agreed to.
In moving the Executive amendments, we do not intend to give ministers excessive powers; we are simply trying to make adequate saving and transitional arrangements to ensure that the courts and those involved in such proceedings know what their position is and can sensibly judge how those transitional provisions will work.
I sympathise with the view that people should know what their position is. I think that both arguments we have heard are intended to achieve the same thing, although I sometimes find my eyes glazing over at the technicalities. When I look around the committee, I suspect that I am not alone.
One thing niggles me. I, and I suspect other members of the committee, are not great fans of catch-all provisions. That does not mean that they should never be included—I understand that there are times when the Executive needs catch-all provisions for flexibility—but, as the minister knows from our consideration of other legislation, we have tended to be suspicious of such provisions.
The Executive is giving exceptions, but it is also saying that if, in its wisdom and discretion, it thinks of anything that should be an exception, it reserves the power to throw it in. The cynics among us would be frightened of that. I am not frightened of it; I assume that it is just the usual Government belt-and-braces job, but do we really need it? Have we not applied our minds to it in enough detail to say now what exceptions we need? We have a bank of advisers. Have we not exhausted the possibilities of what the exceptions are likely to be?
I am slightly suspicious of a catch-all provision, especially when it comes in a negative rather than a positive resolution of the Parliament. I appreciate that negative resolutions might be annulled just as positive ones might not be approved, but catch-all provisions with negative resolutions are not my favourite. I shall put it no higher than that. I would like to be satisfied that it is really necessary.
I was going to make a similar point. Subsection (2) is all about transitional provisions, so I suppose that, after a period of time, they will lapse anyway. I agree that the negative procedure may not be the best way of proceeding and that the affirmative procedure would be better. I would be interested to hear the minister's comments.
I appreciate the points that Gordon Jackson and Euan Robson have made, especially as I have experience of other legislation that this committee has dealt with. There is a distinction between catch-all provisions as set out in other legislation and what is being provided for here. This is a standard provision for savings and transitionals and is commonplace in other legislation—not just legislation passed by this Parliament.
What is proposed does not go any further than those standard approaches. It does not except or exempt any situation that is covered by the bill. It does not allow for ministers to vary particular circumstances as covered by the bill. That is not how it works.
Can you explain that more fully, please?
Let us consider the specific circumstances set out by the bill and the Executive amendments. I understand that the amendment would not allow ministers to specify exemptions with regard to specific circumstances that individuals might find themselves in. It specifies the provisions that would pertain, as Euan Robson said, during the transitional period and not beyond it. It concerns what the arrangements would be during that period, but it is not about varying the arrangements during that period.
I would like some clarification about the minister's amendments. I understand that if a poinding takes place before the bill comes into force, there could be a warrant sale for up to 12 months after the bill is passed. Is that the case?
The minister referred to eventualities that might have to be dealt with during the transitional period, some of which may be unknown and which it could be difficult to cover in legislation. Would it be more appropriate to deal with such eventualities in the legislation that the Executive will introduce to deal with the issue?
The answer to the second question is yes, but we must cater for the circumstance in which it is theoretically possible that the Executive's legislation does not make it to the statute book. We do not know what might happen. Parliament might decide not to accept that legislation, in which case—we will come to the subject of the commencement date later—this bill would be the bill that replaces existing legislation. We must therefore ensure that appropriate savings provisions are in place. However, we do not believe that that will happen; we believe that the Executive bill will be enacted in time.
The answer to the first question is also yes.
On the minister's point about exceptions, I ask members to refer to amendment 11, subsection (2) of which states quite clearly:
"The Scottish Ministers may, by order made by statutory instrument, make such transitional provision and further savings as they consider necessary or expedient in connection with the coming into force of any provision of this Act."
That clearly provides the catch-all the minister says he does not have. There is quite clearly a provision there that would allow for a poinding to have been carried out a couple of days before the bill comes into effect and for ministers to decide that that poinding could proceed to sale, even 12 months down the line.
The problem that I find in this is the point that Michael Matheson made—the Executive's proposal does not lead to more clarity about which warrant sales could proceed after the passage of the bill; it would lead to more complications. The transitional power is a catch-all provision.
I agree that there is need for clarity. I hope that the amendments that we have lodged will provide it. Amendment 35 clearly refers to warrant sales under summary warrant; amendment 36 clearly refers to warrant sales under ordinary decree; amendment 37 provides the definition of warrant of sale. Those amendments are consistent, so it is unfair of the minister to accuse us of submitting technically incompetent amendments. They are not technically incompetent either in relation to the bill or in relation to the existing provisions.
I have no concluded view on the catch-all. Do you have any difficulty with the first two points in amendment 11, about the bankrupts and the debtors? Is it only the catch-all that you do not like?
The amendments that we have submitted already provide for both of the points that are made in subsection (1)(a) and subsection (1)(b) of amendment 11. We already clearly refer to that. We do not affect the Bankruptcy (Scotland) Act 1985. For example, we allow for the list of exempted items under poinding still to remain for guidance in relation to bankruptcy. There is no problem with that.
We are trying to be as minimalist, straightforward and clear as possible, whereas the Executive is creating an unnecessary section that gives it huge powers in relation to transitional arrangements.
Are you saying that there is no objection in principle to the first part of amendment 11—although you say that it is unnecessary, so it would be bad legislation?
There is no objection in principle; we have already covered it. That is why we cannot understand why subsection (2) of amendment 11 is included.
No one else has indicated that they wish to come in on this point. Does the minister want to say anything else on this?
I will clarify that the Executive's position is that the amendments that we propose do not allow ministers to disapply any part of this act. This is about timetabling. It is not about exemptions from the legislation as it is passed.
Is amendment 6 agreed to?
No.
There will be a division.
For
Barrie, Scott (Dunfermline West) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
MacLean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Against
Cunningham, Roseanna (Perth) (SNP)
Grahame, Christine (South of Scotland) (SNP)
Matheson, Michael (Central Scotland) (SNP)
Abstentions
Gallie, Phil (South of Scotland) (Con)
McIntosh, Mrs Lyndsay (Central Scotland) (Con)
The result of the division is: For 6, Against 3, Abstentions 2.
Amendment 6 agreed to.
Amendment 7 moved—[Angus MacKay].
Is amendment 7 agreed to?
No.
There will be a division.
For
Barrie, Scott (Dunfermline West) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
MacLean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Against
Cunningham, Roseanna (Perth) (SNP)
Grahame, Christine (South of Scotland) (SNP)
Matheson, Michael (Central Scotland) (SNP)
Abstentions
Gallie, Phil (South of Scotland) (Con)
McIntosh, Mrs Lyndsay (Central Scotland) (Con)
The result of the division is: For 6, Against 3, Abstentions 2.
Amendment 7 agreed to.
We now come to amendment 1, in the name of Tommy Sheridan.
Amendment 1 is technical. It replaces "schedule 2 (repeals)" with "the schedule".
I move amendment 1.
I take it that there is nothing you wish to add, minister.
No. As there is only one schedule to the bill, this is a sensible amendment.
Amendment 1 agreed to.
Amendment 8 moved—[Angus MacKay].
The question is, that amendment 8 be agreed to. Are we agreed?
No.
There will be a division.
For
Barrie, Scott (Dunfermline West) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
MacLean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Against
Cunningham, Roseanna (Perth) (SNP)
Grahame, Christine (South of Scotland) (SNP)
Matheson, Michael (Central Scotland) (SNP)
Abstentions
Gallie, Phil (South of Scotland) (Con)
McIntosh, Mrs Lyndsay (Central Scotland) (Con)
The result of the division is: For 6, Against 3, Abstentions 2.
Amendment 8 agreed to.
Amendment 9 moved—[Angus MacKay]—and agreed to.
Tommy Sheridan has spoken to amendment 37 already. Do you wish formally to move it, on behalf of Alex Neil?
I may be wrong, but I assumed that because it referred to amendments 35 and 36, it had fallen.
Technically, it does not fall.
I withdraw it, on the basis that it conflicts—
Not moved.
Amendment 37 not moved.
Amendment 10 moved—[Angus MacKay]—and agreed to.
Section 1, as amended, agreed to.
After section 1
Amendment 11 moved—[Angus MacKay].
The question is, that amendment 11 be agreed to. Are we agreed?
No.
There will be a division.
For
Barrie, Scott (Dunfermline West) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
MacLean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Against
Cunningham, Roseanna (Perth) (SNP)
Grahame, Christine (South of Scotland) (SNP)
Matheson, Michael (Central Scotland) (SNP)
Abstentions
Gallie, Phil (South of Scotland) (Con)
McIntosh, Mrs Lyndsay (Central Scotland) (Con)
The result of the division is: For 6, Against 3, Abstentions 2.
Amendment 11 agreed to.
Schedule
Repeals
Amendments 12 to 18 moved—[Angus MacKay]—and agreed to.
Amendment 19 moved—[Angus MacKay].
The question is, that amendment 19 be agreed to. Are we agreed?
No.
There will be a division.
For
Barrie, Scott (Dunfermline West) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
MacLean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Against
Cunningham, Roseanna (Perth) (SNP)
Grahame, Christine (South of Scotland) (SNP)
Matheson, Michael (Central Scotland) (SNP)
Abstentions
Gallie, Phil (South of Scotland) (Con)
McIntosh, Mrs Lyndsay (Central Scotland) (Con)
The result of the division is: For 6, Against 3, Abstentions 2.
Amendment 19 agreed to.
Amendments 20 to 32 moved—[Angus MacKay]—and agreed to.
Schedule, as amended, agreed to.
Section 2—Repeals
Amendment 33 moved—[Angus MacKay]—and agreed to.
Section 2, as amended, agreed to.
Section 3—Short title
We now come to amendment 4, in the name of Tommy Sheridan, which is grouped with amendment 38, in the name of the minister. Amendments 4 and 38 would insert alternative and incompatible commencement provisions.
Rule 9.10.11 of standing orders states:
"An amendment at any Stage which would be inconsistent with a decision already taken at the same Stage shall not be taken."
If amendment 4 is agreed to, amendment 38 cannot be called. Members who support amendment 4 should vote for it; members who support amendment 38 should vote against amendment 4 if they wish to ensure that amendment 38 is taken. If the vote is tied, I will exercise my casting vote against the amendment in both cases, to ensure that the status quo of the bill remains.
I call Tommy Sheridan to move amendment 4.
I am disappointed with the Executive's amendment because of the time scale it entails. I have three arguments that I want to put to the committee in the hope of winning members' support for amendment 4.
First, the committee will be aware that there was a lengthy period of evidence gathering—we listened to witnesses and consulted many people who were both for and against the bill—which resulted in a highly charged parliamentary debate on 27 April. The outcome of the debate was that the Parliament expressed its will by supporting the committee's recommendation to support the general principles of the bill. If amendment 4 is supported, the Parliament will implement the bill one year after taking the decision to support it. That is reasonable.
We had hoped for an earlier implementation date, but we have listened to the comments of the committees and have lodged an amendment that is reasonable and proposes a time scale that can be met by civic Scotland. However, the idea of two-and-a-half years' delay between the Parliament debating and deciding on such legislation and its implementation is entirely unreasonable. People outside the Parliament will see that as unreasonable.
Secondly, the Justice and Home Affairs Committee expressed its intent clearly when it said in its report that it wanted the bill to be implemented "sooner rather than later", because it wished the legislation to be "a spur to change". To date, the Executive's record on being spurred to change is quite shameful.
On 27 April, the Executive, in the shape of Jim Wallace, announced the establishment of a committee to examine alternative forms of diligence to poindings and warrant sales. In the past five months that committee has met once. It has not proposed any alternatives. It has a very restricted remit, which is to present another form of attachment of movable assets. I may sound cynical, but I must say that another form of attachment of movable assets could easily be seen as poindings and warrant sales by another name. The restricted remit of the group saddens me.
I ask the committee to consider the fact that the Local Government Committee discussed the time scale for implementation in some detail. I have quotations from Dr Sylvia Jackson and Michael McMahon, both of whom make the point that the bill should be implemented sooner. At one point, Donald Gorrie mentioned a three-year implementation date. Sylvia Jackson said that that was far too long. Michael McMahon described it as ludicrous. I remind the committee that if it accepts the Executive amendment, that is the time scale that it will be endorsing.
The Local Government Committee discussed the matter in January. If the Executive's amendment were accepted, the effective implementation date would be 1 January 2003. That would be ridiculous. The Local Government Committee was charged with considering the effect that the bill could have on local authorities, so its views on implementation are quite important. That committee has the interests of local government at heart. It recognised the fact that West Dunbartonshire Council and Clackmannanshire Council have already banned the use of poindings and warrant sales, with no untoward effect on the collection rate of council tax or other debts that they are owed.
The Local Government Committee concluded that an effective and specific time scale should be put in place. Members will not be surprised to learn that the specific implementation date that the Local Government Committee called for was 1 April 2001. The compromise that the supporters of the bill are suggesting in amendment 4 is in line with the recommendations of the Local Government Committee. I hope that members will take that on board.
My final point concerns the time taken to produce alternatives. I remind the committee that, in the five months since we had the debate in the Parliament, the Executive committee that was established to consider alternatives to poindings and warrant sales has produced no specific proposals and no details on an overhaul of diligence or on improving debt recovery across Scotland.
On the other hand, the informal group that was established by those who support the bill to abolish poindings and warrant sales—including the Scottish Association of Law Centres, the Govan Law Centre, Citizens Advice Scotland, Money Advice Scotland, the Poverty Alliance and many other organisations, including the Law Society of Scotland—has not only produced, in the space of three months, an alternative proposal called a right of disclosure which, while still protecting the rights of debtors, would allow creditors access to information that would allow existing diligence to operate better, but is due to publish in December a complete report on the overhaul of debt recovery across Scotland. There is a bit of a contrast between the voluntary group that has got together to try to improve and humanise debt recovery, which has made so much progress, and the Executive, which has made so little. I hope that that will be borne in mind.
The sooner-rather-than-later spirit of both this committee's report and the Local Government Committee's specific proposal is matched by the 1 April 2001 amendment. The 31 December 2002 amendment represents, I feel, a circumvention of the will of Parliament and of the time scale that was proposed by the MSPs who voted to abolish poindings and warrant sales.
I move amendment 4.
I should perhaps preface my remarks by saying that, like Mr Sheridan, I am disappointed: the amendment that he has lodged sets an unrealistic date for commencement. The committee has recognised the need for an alternative diligence against movable property to be in place before poindings and warrant sales are abolished. Amendment 4 gives a date of 1 April 2001, but that does not give sufficient time for the alternative diligence against movable property to be identified and for legislation to be put in place.
The arguments for the need for an alternative diligence to poindings and warrant sales have been well rehearsed in several different venues. People have responsibilities to honour financial commitments that they freely enter into. The legal system has to have a mechanism that allows debts to be recovered from those who can pay their debts but refuse to do so. There has to be a comprehensive set of measures that cover all types of property. Without an alternative diligence against movable property, a large loophole is created. Unless there is a seamless transition between the implementation of abolition and the commencement of the alternative, that loophole will be created.
That is the background, but I would not want the committee to be in any doubt about the Executive's commitment to the abolition of poinding and warrant sale and its replacement by an alternative, modern, humane and effective diligence against movable property. The committee is well aware of the cross-party parliamentary working group to which Mr Sheridan has referred. It has already started work on this matter.
The effect of Executive amendment 38 is that commencement will take place not later than 31 December 2002, without any further order being necessary—which is not the case with Mr Sheridan's amendment. That time scale would allow the cross-party parliamentary working group time to complete its work and for the replacement legislation to be introduced.
I am sure that the committee shares the enthusiasm for a sensible and workable solution that is fair to both debtor and creditor. I therefore hope that the committee will support the need for a realistic time frame for the working group to explore alternatives and make its recommendations.
The bill cannot be brought into force until it is possible to introduce an alternative diligence at the same time. I ask the committee to recognise that reality by supporting the Executive's amendment. Initially, it was intended that the working party should meet every two months. I have instructed that the frequency of meetings be doubled to a minimum of once a month.
The second meeting of the working party was cancelled to allow a new date to be set to allow for full attendance. Not every member was able to attend the first meeting. I understand that Mr Sheridan has concerns about that, which he expressed in The Herald in the form of a letter—which is apparently being sent to me. The letter was dated 11 September, but I have not yet received it, so I have not seen Mr Sheridan's detailed concerns.
The Executive has moved on this matter. During the stage 1 debate in the Parliament, Jim Wallace gave an undertaking to amend the list of exempt articles in section 16(2) of the Debtors (Scotland) Act 1987. That has been done, and the working party's meetings have been timetabled to be more frequent.
The working party initially agreed to report in December 2001—that would at least be the backstop date. As a result of the amendment that we have lodged at this stage and the requirement to prepare a proposal and to go out to consultation on it in time to legislate by December 2002, the working group will now have to conclude its report by June 2001 at the latest. The working group's timetable has been foreshortened as a matter of urgency.
I ask committee members to support the Executive's position, to allow time for a workable alternative to be put in place.
Tommy Sheridan referred to this committee's stage 1 report, and he rightly quoted the phrase "sooner rather than later". It is important that that be placed in the context of all the things that we said in our conclusion. A phrase such as "sooner rather than later" is somewhat loose in itself.
We said a number of definite things. We said that the bill should "serve as the catalyst" for general reform and we have not departed from that. We also said that it was not good enough for the Executive simply to make a commitment "to bring forward legislation" and therefore not pass this bill. Those with any memory will remember how strongly this committee and the Parliament insisted on that, and in the clearest possible terms.
We also said that we felt that there had to be a commencement date. This is important, so I will quote from our report. We said:
"The Committee remains conscious of the danger . . . that immediate abolition of poindings and warrant sales could cause disruption and unintended . . . consequences. We also recognise that those involved in the diligence system . . . need time to prepare for the practical consequences of abolition. We therefore believe that there is a strong case for amending the Bill during its passage to provide that it does not come into force until a specified future date."
That
"would allow abolition to become an established fact . . . while postponing its implementation until the remainder of the reforms needed could be put in place."
I still strongly believe that. The most important thing that we can do at this stage is to establish the principle that there will be a definite commencement date. I would not like to happen what was suggested as possible through the casting vote of the convener: that we do not include a commencement date at this stage. I think it vitally important that that principle is established. The idea that this bill can be implemented as and when the Executive, in its wisdom, thinks fit, would, to my mind, be totally unacceptable. Pressure needs to be put on working parties, civil servants and ministers. They should have a date to work to. That is the most important principle that we can establish.
In regard to what the date should be, we said in our report:
"What is needed now is a clear commitment from the Executive to bring forward legislation within this Parliamentary session".
Unlike the other committee, we did not put a date on that; we said only that it had to be done within this parliamentary session. As far as I can see, the Executive's proposed date is certainly within this parliamentary session, which means that it has complied with the request in our stage 1 report for a specific date. We must establish a date; and if there is a choice between two dates, I am in favour of the date that is further away.
I am sure that the date issue will be revisited; however, with respect to Tommy Sheridan, I do not think that April next year is realistic at the moment. These issues are complicated and things must be right; and although it might make a political soundbite, it is not legally realistic to try to have the legislation in place by the date that Tommy suggested. I am content with the other option of having the legislation in place by the end of December 2002; however, as I said, the issue will no doubt be revisited. We need a specific time scale and, at this point, should take the longer rather than the shorter one.
I plead with members not to make this an opportunity to give speeches, as we are running considerably late with our agenda—and yes, I am getting at you, Gordon.
It is important to put on the record where the committee was coming from on the bill. We were adamant that we wanted a mechanism so that the Executive could not dilly-dally on the bill, which is why we came to the principal conclusion that there should be a date by which the bill should come into force, although the report did not stipulate that date.
As far as I am concerned, there are three long-term aims: the abolition of poindings and warrant sales, to which we are committed; the alternative form of diligence, which is the focus of today's meeting; and debt arrangement schemes, which Mike Dailly in particular talked about in his evidence. We still have a long way to go on this matter before it is completed.
The date of April 2001 is too soon if we want to ensure that alternative procedures are in place. Although I am not 100 per cent comfortable with the Executive's option of 2002, I think that Tommy Sheridan has to address the point that his time scale is very short. It will leave us only five months to have alternatives in place. Furthermore, I should ask Tommy whether he thinks that, on the day the Parliament passes the bill in whatever form, local authorities will react within the time scale by making any preparations.
The committee has a proven record in being diligent in its scrutiny of the Executive's work. It will be on the Executive's head if no progress has been made on alternative procedures, because the committee and the Parliament will revisit the matter to ensure that progress has been made.
I am not at all comfortable with the Executive's time scale, as it means that warrant sales could still be carried out up until December 2003. That said, I agree with Gordon Jackson and Pauline McNeill about Tommy Sheridan's amendment. A year is just not long enough for the Parliament to deal with the situation. We have to be pragmatic; the bureaucratic organisation in which we work will not be able to do everything in five or six months, which is regrettable. Perhaps we should investigate the way that we operate.
I notice that the minister said that the commencement date would be no later than December 2002. Is there any leeway for the compromise that could be introduced, at stage 3, to reduce that time scale? Can he commit himself to investigating the possibility of bringing forward the deadline from 31 December 2002, with a view to accepting an amendment at stage 3? [Interruption.]
Is somebody's mobile phone switched on? Please switch your mobile phones off.
Sorry about that, convener, it is now switched off.
Unlike the great majority of this committee, I voted against this bill in the parliamentary debate to which Tommy Sheridan referred. I have since had cause for reflection. A good example of the reason why Tommy wants this bill to be passed can be found in South Ayrshire Council. That council has sent out summary warrants to people who are late with their council tax payments by only a few days, because they have not fallen into line with South Ayrshire Council's requirement for payments to be made on the first day of the month. If that is the kind of use that sheriff warrants are going to be put to, many people will revise their views.
Having said that, we must look to the wider good, and we must ensure that debt recovery is possible. I was disappointed to hear what Tommy Sheridan said about the diligence committee, and I note the minister's commitment to increase the number of meetings that that committee is intent on having. I wonder how forced that has been.
Implementation of the bill on 1 April may prove impractical with regard to ensuring the protection that we must have for those who have the resources to pay but will not pay. I will enjoy the remainder of this debate before deciding how I am going to vote.
First, I want to address the matter of the cross-party parliamentary working group. I am a member of that group, but I did not attend its first meeting, as the meeting was rearranged and I had something else in my diary that I could not get out of. The second meeting, as Angus MacKay is aware, was scheduled for this week or last week, I think, but will now be held on 5 October. This is the first that I have heard—it may be somewhere in the typing, but it was not in my mail this morning—of a forward diary for consideration of this matter. I have had no notice of that. That group has done nothing for five months. The only meeting that was held was to set the remit, and I have not even agreed to that yet.
I have real concerns. I have watched the Executive in operation when the European convention on human rights has breathed down its neck. It has moved then, and legislation has whizzed through Parliament. The Executive may be acting in good faith, but its actions do not demonstrate an urgency to respond to Parliament's wishes in this matter. I am glad to hear that there is movement on the parliamentary cross-party working group, as this is the first that I have heard of it.
My second point concerns what the Executive has said about an alternative to diligence against moveable property. I refer to the committee's first report, to make sure of what we said. On page 12 of the report, we said:
"What is needed now is a clear commitment from the Executive to bring forward legislation within this Parliamentary session to ensure that a system of diligence from which poindings and warrant sales have been removed strikes a satisfactory balance between the interests of creditors and debtors."
The word "alternative" does not appear; "substitute" does not appear. We are talking about removing poindings and warrant sales. I support Tommy Sheridan—a rose by any name, et cetera. A poinding and a warrant sale by another name is still a poinding and a warrant sale. That was not what was called for by the committee in its report.
Those are two matters that I wish to raise with you. Perhaps afterwards we could discuss the cross-party group. Maybe you have written to me about it, but I do not know.
My primary concern touches on what Christine Grahame has said about the cross-party group on diligence. Several members have said that Tommy Sheridan's amendment provides an unrealistic time scale. The question arises as to why it is that, five months after the parliamentary debate, the cross-party group has met only once. If we are short of time, the problem is of the Executive's own making, as the cross-party group has not addressed the issues that the Parliament raised in the debate in April.
Kate MacLean made an important point. Agreeing to the Executive's amendments would mean in effect that poindings and warrant sales would technically not be abolished in this parliamentary session. The transitional arrangements that the Executive proposes will mean that poindings and warrant sales will continue until December 2003. That is unacceptable. If there is a lack of time in which to deal with so-called alternatives, that is because of a lack of action on the cross-party group by the Executive.
I agree that it will not be ideal for the scrutiny of legislation if we do not have sufficient time to consider alternatives. However, I am not prepared to wait until December 2002 for the abolition of poindings and warrant sales, after which warrant sales may continue for another year. We should be stamping a mark on the bill to ensure that it happens sooner rather than later, given that there has already been slippage in the past five months.
I am equally disappointed that 1 April 2001 is not a realistic possibility. Through a combination of circumstances, we have lost an opportunity. We might have moved a bit quicker over the summer. Amendment 38 says that the bill could come into force on
"such earlier date as the Scottish Ministers may, by order made by statutory instrument, appoint."
Therefore, an earlier date is not ruled out.
I would be interested in the minister's response to the point that Michael Matheson rightly made about poindings and warrant sales continuing for up to a year after the legislation curtails them. To meet the committee's view that they should be abolished by the end of the session would require a shift in the time scale back from December to May. Does the minister think that that is achievable? Does he think that we should now aim for a date earlier than December 2002, as is provided for in the amendment?
Forgive me if I do not cover all the points that have been made. I will be happy to come back to any that I miss out.
The Executive thinks that it is practical and sensible to set December 2002 as a backstop for commencement. That does not preclude the possibility of legislation being completed and formal abolition taking place earlier than that. We certainly intend to work towards the earliest possible date. However, we think that that backstop is needed to allow the working party to complete its work, proper consultation to take place and legislative scrutiny of the Executive's proposals to be carried out by the committee and Parliament.
The period for which poindings and warrant sales could take place after the legislation has been passed is—in part, if not entirely—down to the transitional arrangements that will have to be made and brought before Parliament by statutory instrument and which will be subject to negative resolution and annulment.
I am happy to undertake today to examine closely the period of time that might be needed for those transitional arrangements. Members have suggested a year, but it might be that a period of less than a year is possible. We will consider actively whether that can be done.
A number of other issues were raised, of which Christine Grahame raised two or three.
Paragraph 48 of the committee's report states:
"efforts should be concentrated on finding a workable but humane alternative".
I do not think that that statement is ambiguous—it is quite clear. I hope that my response addresses the point that was raised by Christine Grahame.
Both Christine Grahame and Michael Matheson touched on the position of the working group. I do not want to over-politicise the working group, as it has some difficult work to do under a heavy timetable. The working group will have its hands full in trying to produce something that will be acceptable to all members. Christine Grahame has received a copy of the minutes of the working group's first meeting, on which we have yet to receive comments.
In relation to the timetable for the working group, the dates 6 December, 7 February, 4 April and 6 June are noted in my diary, but I am happy to discuss them with members. They were arranged on the basis of the working group meeting once every two months. When the working group was formed, it was intended that all members of it would be able to attend all meetings, to ensure that we would be able to take on board all points of view and to make progress as quickly as possible, rather than to-ing and fro-ing.
We did not get a full turnout at the first meeting and when we saw from the apologies that were received that the second meeting was heading the same way, we decided to postpone that meeting to ensure that members could make it to the rescheduled meeting. At the same time, I took the view that if members were not going to be able to turn up to a meeting every two months, we might as well move to holding meetings monthly, on the assumption that turnout would be subject to the vagaries of the members' diaries.
Members can comment and scoff as they wish, but at the end of the day, the Executive undertook to introduce a workable alternative to poindings and warrant sales. We will do that and the working group will conclude its work. It will have to do so earlier than was initially proposed and, ultimately, there is not in place—or even in prospect—an alternative to poindings and warrant sales. Some work has been done on ideas that are described as alternatives, but which are not. If we proceed to an early commencement date without an alternative being in place, we will cause serious problems, particularly for finance gathering in local government. That would damage the key services on which the people we seek to protect with the legislation rely wholly.
I hope that that response answers the points that were raised by members.
We have probably exhausted all the issues that could be raised in connection with the amendments. Tommy, do you want to wind up?
Yes.
The idea that local authorities stand to suffer most from the removal of poindings and warrant sales—and that that was not considered by the Local Government Committee—is breathtaking. That point was considered by the Local Government Committee, which suggested the time scale in amendment 4.
I want to repeat some of the committee's conclusions about the evidence that it heard. Gordon Jackson read out a lengthy quotation, but he missed out the last sentence, which reads:
"We are of the view that this should be done sooner rather than later."
I respectfully suggest to the committee that two and a half years after the Parliament has taken a decision is not "sooner rather than later".
I also remind members of another quotation from the committee's report, which states:
"The evidence that poindings and warrant sales cause undue distress to debtors in many cases is compelling, and to that extent we agree with Tommy Sheridan's basic objection to them as no longer appropriate in a civilised society."
That statement was based on evidence to the Justice and Home Affairs Committee and it was included in that committee's report. Amendment 38 suggests, however, that members are content to have poindings and warrant sales in place until 31 December 2002.
Euan Robson raised the idea that the Executive has lodged a catch-all amendment, its point being that 31 December 2002 would be the latest commencement date. Today, members have heard that, in five months, the working group that was set up to consider alternatives has met only once. It has not made a single proposal and will take matters right to the end of the line before changing the system. If that evidence does not convince members, I do not know what will.
The agenda of the meeting of the cross-party working group that was due to take place on 12 October included an alternative to poinding and warrant sales, which was submitted by the improving debt recovery group to the clerk of the working group. However, that meeting was cancelled. I say to Angus MacKay that the idea that meetings should be held only when all members of the group can attend is an incredible precondition—that makes it impossible for people to meet.
It is from that point of view that I appeal again to members of the committee. The decision must be made on the basis of a spur to change. I do not think that anyone has proved the idea that it is not practical to abolish poindings and warrant sales by 1 April 2001. If local authorities such as West Dunbartonshire and Clackmannanshire can ban the use of poindings and warrant sales, why cannot other local authorities operate similarly?
Jack McConnell, the Minister for Finance, visited West Dunbartonshire Council in July and congratulated it on its improved collection of council tax. That council has banned poindings and warrant sales, but he congratulated it. I ask members not to be dazzled by the notions that implementation of the measure will take time, that it will be bureaucratic, and that we have to be pragmatic while people suffer the effects of poindings and warrant sales. I appeal to members to set a date that is realistic to the people out there who hope that Parliament will pass the legislation, rather than a date that is realistic to comfortable lawyers, the Law Society of Scotland, bureaucrats, civil servants and everybody else. I hope that the Parliament listens just as much to the people out there to ensure that the timetable is practical. I appeal to the committee to agree to the amendment that sets a date of 1 April 2001.
I intend to proceed straight to what I anticipate will be a vote. The question is, that amendment 4 be agreed to. Are we agreed?
No.
There will be a division.
For
Cunningham, Roseanna (Perth) (SNP)
Grahame, Christine (South of Scotland) (SNP)
Matheson, Michael (Central Scotland) (SNP)
Against
Barrie, Scott (Dunfermline West) (Lab)
Gallie, Phil (South of Scotland) (Con)
Jackson, Gordon (Glasgow Govan) (Lab)
MacLean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
McIntosh, Mrs Lyndsay (Central Scotland) (Con)
McNeill, Pauline (Glasgow Kelvin) (Lab)
Robson, Euan (Roxburgh and Berwickshire) (LD)
The result of the division is: For 3, Against 8.
Amendment 4 disagreed to.
Amendment 38 moved—[Angus MacKay].
The question is, that amendment 38 be agreed to. Are we agreed?
No.
There will be a division.
For
Barrie, Scott (Dunfermline West) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
MacLean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Against
Cunningham, Roseanna (Perth) (SNP)
Grahame, Christine (South of Scotland) (SNP)
Matheson, Michael (Central Scotland) (SNP)
Abstentions
Gallie, Phil (South of Scotland) (Con)
McIntosh, Mrs Lyndsay (Central Scotland) (Con)
The result of the division is: For 6, Against 3, Abstentions 2.
Amendment 38 agreed to.
Section 3, as amended, agreed to.
Long title agreed to.
That completes stage 2 of the Abolition of Poindings and Warrant Sales Bill. I thank the minister and his officials, Tommy Sheridan and Mike Dailly.
We are running considerably behind time. We are over our normal time and we still have items on the agenda. We can use the chamber until 1:00pm, but no later, because it is booked thereafter. I propose to continue sitting until 1:00pm. We will do what we can in that time.