Official Report 481KB pdf
Item 2 is the formal stage 2 proceedings on the Bankruptcy (Scotland) Bill. Members should have copies of the bill, the marshalled list and the groupings of amendments.
I welcome to the meeting the Minister for Business, Energy and Tourism, Fergus Ewing MSP—good morning, sir—who is accompanied by Alex Reid, head of policy development at the Accountant in Bankruptcy, and Graham Fisher, head of branch 1 in the civil and constitutional law division of the Scottish Government legal directorate. We will move straight on.
Sections 1 and 2 agreed to.
Schedule 1—Debtor to whom section 2(2) applies: application of Act
The first group of amendments is on conjunctions. Amendment 1, in the name of the minister, is grouped with amendments 8, 9, 13, 45, 48, 49, 70 and 71.
I thank the committee for its careful scrutiny of the bill thus far. The first group of amendments responds to the committee’s queries by adjusting conjunctions in the bill, particularly with regard to issues explored at stage 1, and removing the word “or” in connecting certain provisions. The Scottish Law Commission drafter is content with the approach.
Although the Government does not accept that as a matter of law there would be doubt about any of the powers involved, amendments 1, 8, 9, 13, 45, 48, 49, 70 and 71, in my name, will remove the word “or” from the powers in the bill that the committee highlighted, which will ensure that the bill follows more exactly the Bankruptcy (Scotland) Act 1985. The amendments will also make minor adjustments to conjunctions in the bill.
I invite the committee to support amendment 1 and the other amendments in the group, and I move amendment 1.
I support what the minister has proposed. As a mathematician, I think that it is worth saying that 16 different operations can be applied to the combination of two elements. The word “or”, as it is commonly used in the English language, is ambiguous, because it can be exclusive or inclusive. In mathematics, there are different terms for the different forms. The minister’s proposal, which the committee asked for, removes the potential for ambiguity and is therefore a helpful contribution to the clarity of the resulting legislation.
Minister, do you wish to wind up or comment on the legal position of mathematics?
I was not aware of those matters, but I am always ready to advance my education.
Amendment 1 agreed to.
Amendment 2, in the name of the minister, is grouped with amendments 7, 19 and 22.
The group contains minor amendments that arise from issues in the committee’s stage 1 scrutiny of parts 1 to 4 of the bill, as listed in annex A to the committee’s report. The changes reflect points that the drafter has accepted.
Amendment 2 amends paragraph 5(4) of schedule 1 to ensure that the law remains unchanged, while amendment 7 reorders provisions in section 12 to make the section consistent with section 11. Amendment 22 restores the wording “as soon as possible” that is used in the 1985 act, even though the change to the phrase
“as soon as may be”
was not thought to have any practical effect. Finally, amendment 19 restores a provision that was inadvertently not carried across to the bill.
I invite the committee to support the amendments in the group, and I move amendment 2.
Amendment 2 agreed to.
Schedule 1, as amended, agreed to.
Section 3—Debt advice and information package
Amendment 3, in the name of the minister, is grouped with amendment 72.
Amendments 3 and 72, which take up a minor restructuring that was raised by the committee and agreed to by the drafter at stage 1, move the definition of
“debt advice and information package”
from the interpretation section to section 3. The package is an important measure that gives the debtor details about sources of debt advice, and I invite the committee to support the amendments.
I move amendment 3.
Amendment 3 agreed to.
Section 3, as amended, agreed to.
Sections 4 to 9 agreed to.
Section 10—Death or withdrawal
The next group of amendments is on abbreviations. Amendment 4, in the name of the minister, is grouped with amendments 5, 6, 10 to 12, 21, 26 to 41 and 61 to 68.
The 31 amendments in the group address the point that stakeholders and committee members raised about the use of abbreviations. It is important to record that abbreviations can be a useful drafting device, particularly for providing legal certainty and avoiding lengthy repetition. Equally, though, it is important to ensure that the bill is accessible.
As the drafter has accepted, abbreviations can be dispensed with in places, and accordingly the amendments remove the abbreviations from sections 10, 14 and 63 and schedule 6. Amendment 21 defines the term “C”, which stands for “creditor”, clearly for sections 46 and 47, which work together.
Abbreviations have been left in some of the bill’s other provisions, including those in sections 69 to 73. In those provisions, the device provides clarity, given the large cast list involved, and it is also helpful in making clear which provisions of the bill need to be read together.
I invite the committee to support the amendments in the group, and I move amendment 4.
I welcome the changes, particularly because I believe that abbreviations should be used with caution. Where they have been retained in the bill, I am content that there is adequate proximity between the original spelling out of what is subsequently abbreviated and the abbreviations. That is a perfectly good thing to do.
As a general principle, I have always been uncomfortable with the practice of using single letters to indicate actors in a piece of legislation, particularly when that legislation reuses the same single character in different parts of the construct to mean different people. The amendments that have been lodged avoid that risk but, when single letters are used to refer to particular actors, they should not be reused in different contexts in different parts of the bill. That does not apply in this case, but the general principle is important.
10:30
By way of background and to amplify Mr Stevenson’s points, I point out that Government drafting practice considers that abbreviations can be a helpful drafting device when used in appropriate circumstances. They can assist with legal certainty and avoid lengthy repetition, which makes provisions hard to read, and they can help to avoid gender-specific terminology. Removing abbreviations may make legislation more accessible in some but not all cases. There can be a trade-off between accessibility and legal certainty. Abbreviations have a place.
Mr Stevenson is correct to say that using a letter to denote two different things in the same legislation could introduce uncertainty. In the James Bond films, there is no doubt about who M is.
Amendment 4 agreed to.
Amendments 5 and 6 moved—[Fergus Ewing]—and agreed to.
Section 10, as amended, agreed to.
Section 11 agreed to.
Section 12—Petition for sequestration of estate: provision of information
Amendment 7 moved—[Fergus Ewing]—and agreed to.
Section 12, as amended, agreed to.
Section 13—Further provisions relating to presentation of petitions
Amendments 8 and 9 moved—[Fergus Ewing]—and agreed to.
Section 13, as amended, agreed to.
Section 14—Further provisions relating to debtor applications
Amendments 10 to 12 moved—[Fergus Ewing]—and agreed to.
Section 14, as amended, agreed to.
Sections 15 to 21 agreed to.
Section 22—When sequestration is awarded
Amendment 13 moved—[Fergus Ewing]—and agreed to.
Section 22, as amended, agreed to.
Section 23—Circumstances in which sequestration is not to be awarded in pursuance of section 22(5)
Amendment 14, in the name of the minister, is grouped with amendments 15 to 18, 20, 23 to 25, 42, 50 and 52.
Amendments 14 to 18, 20, 23 to 25, 42, 50 and 52 revert to using the word “forthwith” in the bill as it is used in the Bankruptcy (Scotland) Act 1985. The intention of the drafting changes in the bill as introduced was to modernise terminology. I want to be clear that the Government does not support outdated terminology in bills, including consolidation bills, when there is scope for modernisation. In particular, because this is a consolidation bill that provides for the continuity of the law, its intention is clearly not to change the meaning of the relevant provisions. Nonetheless, in the circumstances of the bill and given the points made by R3 Association of Business Recovery Professionals, the committee and the drafter at stage 1 about the difficulties in translating the ambiguity that is inherent in the word “forthwith”, the amendments will put the bill’s provisions precisely in line with the source legislation.
I invite the committee to support all the amendments in the group, and I move amendment 14.
I was never certain that “forthwith” is an obsolete word and that remains my position. It is interesting that the word has occurred in parliamentary debate since the issue arose in this context without it being used by any of those who have been party to the discussions in the committee. The fact that it spontaneously emerged as a word in common use by someone who is considerably younger than I am suggests that it is not yet obsolete.
In any event, I am an aficionado of the “Oxford English Dictionary”, which is the most definitive description of the English language. It has a simple rule: once something appears in the dictionary, it is never removed. Therefore, as far as that dictionary is concerned, the word “forthwith” will remain for ever more, and I very much welcome that fact.
Perhaps a little less loquaciously, I will express my support for the Government’s reinstatement of “forthwith”. The ambiguity that the word provided when the original legislation was constructed was almost certainly deliberate; perhaps “ambiguity” is too strong a word and “flexibility” describes it better. I am pleased that “forthwith” will be reinstated.
The background notes that I have reveal that the bill as introduced preserved the term “forthwith” in section 22 at the request of stakeholders such as HM Revenue and Customs, which wished to retain the existing jurisprudence and particularly that on the requirement on the sheriff to grant an award of sequestration. One can see that there is a clear purpose and rationale behind HMRC—which is frequently a petitioner in petitions for sequestration—preserving existing case law as a guide to interpretation.
A number of individuals made the point—we thought on reflection that it was valid, which is why we lodged the amendments—that preserving the word “forthwith” and not replacing it with terms such as “without delay” or “immediately” would avoid the perception of any change in the meaning of the legislation. Of course, consolidation legislation is not intended to, and should not, amend the law; it should consolidate the law. The word “forthwith” will therefore remain on the statute book, if the committee so agrees.
Amendment 14 agreed to.
Section 23, as amended, agreed to.
Sections 24 and 25 agreed to.
Section 26—Registration of warrant or determination of debtor application
Amendments 15 and 16 moved—[Fergus Ewing]—and agreed to.
Section 26, as amended, agreed to.
Section 27—Further matters in relation to award of sequestration
Amendment 17 moved—[Fergus Ewing]—and agreed to.
Section 27, as amended, agreed to.
Sections 28 and 29 agreed to.
Section 30—Recall of sequestration by sheriff
Amendment 18 moved—[Fergus Ewing]—and agreed to.
Section 30, as amended, agreed to.
Section 31 agreed to.
Section 32—Application under section 31: further procedure
Amendment 19 moved—[Fergus Ewing]—and agreed to.
Section 32, as amended, agreed to.
Sections 33 to 44 agreed to.
Section 45—Procedure where no statutory meeting called
Amendment 20 moved—[Fergus Ewing]—and agreed to.
Section 45, as amended, agreed to.
Section 46—Submission of claims for voting purposes
Amendment 21 moved—[Fergus Ewing]—and agreed to.
Section 46, as amended, agreed to.
Section 47 agreed to.
Section 48—Proceedings before trustee vote
Amendment 22 moved—[Fergus Ewing]—and agreed to.
Section 48, as amended, agreed to.
Section 49—Trustee vote
Amendments 23 and 24 moved—[Fergus Ewing]—and agreed to.
Section 49, as amended, agreed to.
Sections 50 to 54 agreed to.
Section 55—Removal, resignation etc of interim trustee
Amendment 25 moved—[Fergus Ewing]—and agreed to.
Section 55, as amended, agreed to.
Sections 56 to 62 agreed to.
Section 63—Termination of original trustee’s functions
Amendments 26 to 41 moved—[Fergus Ewing]—and agreed to.
Section 63, as amended, agreed to.
Sections 64 to 69 agreed to.
Section 70—Removal of trustee other than where trustee is unable to act or should no longer continue to act: general
Amendment 42 moved—[Fergus Ewing]—and agreed to.
Section 70, as amended, agreed to.
Sections 71 to 85 agreed to.
Section 86—Further provision as regards vesting of estate
We come to minor and technical amendments to parts 5 to 8. Amendment 43, in the name of the minister, is grouped with amendments 44, 46 and 47.
Amendments 43 and 44 insert text that was inadvertently omitted during drafting, and amendments 46 and 47 make minor typographical amendments. They address points that were raised by the committee and were agreed by the drafter of the bill at stage 1.
I invite the committee to support all the amendments in the group, and I move amendment 43.
Amendment 43 agreed to.
Section 86, as amended, agreed to.
Section 87—Dealings and circumstances of debtor after sequestration
Amendment 44 moved—[Fergus Ewing]—and agreed to.
Section 87, as amended, agreed to.
Section 88 agreed to.
Section 89—Assessment of debtor’s contribution
Amendment 45 moved—[Fergus Ewing]—and agreed to.
Section 89, as amended, agreed to.
Sections 90 to 95 agreed to.
Section 96—Payment break
Amendment 46 moved—[Fergus Ewing]—and agreed to.
Section 96, as amended, agreed to.
Sections 97 to 102 agreed to.
Section 103—Orders under section 101: supplementary
Amendments 47 and 48 moved—[Fergus Ewing]—and agreed to.
Section 103, as amended, agreed to.
Sections 104 and 105 agreed to.
Section 106—Recovery orders: supplementary
Amendment 49 moved—[Fergus Ewing]—and agreed to.
Section 106, as amended, agreed to.
Section 107 agreed to.
Section 108—Taking possession of estate by trustee
Amendment 50 moved—[Fergus Ewing]—and agreed to.
Section 108, as amended, agreed to.
Sections 109 to 118 agreed to.
Section 119—Public examination
We come to minor and technical amendments to parts 9 to 14. Amendment 51, in the name of the minister, is grouped with amendments 53 to 56.
Amendments 51 and 53 to 56 fix references and a typographical error, and make minor changes that were accepted by the drafter and the Government during stage 1. I would be happy to expand on the amendments, should members wish me to.
I invite the committee to support the amendments in the group, and I move amendment 51.
Given that no one wants to speak, I do not think that you need to add to those comments, minister.
Amendment 51 agreed to.
Section 119, as amended, agreed to.
Sections 120 to 125 agreed to.
Schedule 2 agreed to.
10:45Section 126—Adjudication of claims: general
Amendment 52 moved—[Fergus Ewing]—and agreed to.
Section 126, as amended, agreed to.
Sections 127 to 129 agreed to.
Schedule 3—Preferred debts
Amendment 53 moved—[Fergus Ewing]—and agreed to.
Schedule 3, as amended, agreed to.
Sections 130 to 162 agreed to.
Schedule 4 agreed to.
Sections 163 to 167 agreed to.
Section 168—Payment of debtor’s contribution
Amendment 54 moved—[Fergus Ewing]—and agreed to.
Section 168, as amended, agreed to.
Section 169 agreed to.
Section 170—Documents to be sent to creditors
Amendment 55 moved—[Fergus Ewing]—and agreed to.
Section 170, as amended, agreed to.
Sections 171 to 185 agreed to.
Section 186—Protected trust deed: discharge of trustee
Amendment 56 moved—[Fergus Ewing]—and agreed to.
Section 186, as amended, agreed to.
Sections 187 to 199 agreed to.
Section 200—Supervisory functions of Accountant in Bankruptcy
The next group is on minor and technical amendments to parts 15 to 18. Amendment 57, in the name of the minister, is grouped with amendments 58 to 60, 69, 73 and 75 to 77.
Amendments 57 to 60, 69, 73 and 75 to 77 make the minor changes to parts 15 to 18 of the bill identified in annex A of the committee’s stage 1 report. They include words omitted in consolidating certain provisions of the Bankruptcy (Scotland) Act 1985, and rectify minor typographical errors and references to other legislation. Again, convener, I can expand on this group should members wish.
I move amendment 57.
It seems that members have nothing to add.
Amendment 57 agreed to.
Amendments 58 and 59 moved—[Fergus Ewing]—and agreed to.
Section 200, as amended, agreed to.
Sections 201 to 210 agreed to.
Schedule 5—Information to be included in the sederunt book
Amendment 60 moved—[Fergus Ewing]—and agreed to.
Schedule 5, as amended, agreed to.
Sections 211 to 217 agreed to.
Schedule 6—Meetings of creditors and commissioners
Amendments 61 to 68 moved—[Fergus Ewing]—and agreed to.
Schedule 6, as amended, agreed to.
Sections 218 to 222 agreed to.
Section 223—Disqualification provisions: power to make regulations
Amendments 69 and 70 moved—[Fergus Ewing]—and agreed to.
Section 223, as amended, agreed to.
Section 224—Regulations: applications to Accountant in Bankruptcy etc
Amendment 71 moved—[Fergus Ewing]—and agreed to.
Section 224, as amended, agreed to.
Sections 225 to 227 agreed to.
Section 228—Interpretation
Amendment 72 moved—[Fergus Ewing]—and agreed to.
Section 228, as amended, agreed to.
Sections 229 to 233 agreed to.
Schedule 7—Re-enactment of sections 10 and 189 of the Bankruptcy (Scotland) Act 1913
Amendment 73 moved—[Fergus Ewing]—and agreed to.
Schedule 7, as amended, agreed to.
Section 234—Modifications, repeals, savings, revocations and transitional provisions
Amendment 74, in the name of the minister, is grouped with amendment 78.
As noted in my letter of 11 February, amendments 74 and 78 simplify commencement of the bill, following discussions with the Scottish Courts and Tribunals Service. They amend sections 234 and 236 of the bill so that the operational provisions of the bill will no longer apply to petitions or applications for sequestration lodged before the commencement date for the bill where sequestration has been awarded by that date. Instead, the bill will simply apply to petitions or applications lodged after the commencement date.
It is a modest and sensible change to assist the courts’ transition to the new regime in the bill. I am assured by the Scottish Law Commission that it does not affect the law consolidated by the bill.
I invite the committee to support both amendments in the group, and I move amendment 74.
I welcome the couple of changes on that matter. It is always useful, once a legal process has commenced, that it is allowed to complete under the rules and the legal formulation that applied at the point of commencement. There is, of course, the balancing difficulty that sequestrations as a process, while taking approximately three years in general, can often take much longer. However, the balance of advantage will always lie with allowing the legal process to continue under the regime that existed at the time that it was initiated, unless there is some overriding reason why that has to be changed. Accordingly, I welcome the changes.
The aim of the amendments is to assist the court authorities in handling petitions lodged before commencement, which will be able to proceed under the old law. The amendments do not affect the law consolidated by the bill.
Amendment 74 agreed to.
Section 234, as amended, agreed to.
Schedule 8—Modification of enactments
Amendments 75 and 76 moved—[Fergus Ewing]—and agreed to.
Schedule 8, as amended, agreed to.
Schedule 9—Repeals and revocations
Amendment 77 moved—[Fergus Ewing]—and agreed to.
Schedule 9, as amended, agreed to.
Section 235 agreed to.
Section 236—Sequestrations to which this Act applies
Amendment 78 moved—[Fergus Ewing]—and agreed to.
Section 236, as amended, agreed to.
Sections 237 and 238 agreed to.
Long title agreed to.
That ends stage 2 consideration.
10:53 Meeting suspended.