Official Report 179KB pdf
Debt Arrangement and Attachment (Scotland) Bill: Stage 1
Good morning. I welcome everyone to the 22nd meeting of the Subordinate Legislation Committee. This morning's agenda starts with a question-and-answer session with our guests from the Scottish Executive: Laura Dolan, the bill team leader on the Debt Arrangement and Attachment (Scotland) Bill, and Kay McCorquodale, from the Office of the Solicitor to the Scottish Executive.
As the intention is to exercise the powers in section 2 and section 7 together and to deal with them under a single set of regulations, it is appropriate to use the same parliamentary procedure for both. As a result, our response to the committee's questions about section 2 is perhaps also relevant to the committee's questions on section 7.
I accept what you say about carts being put before horses and things like that. We also understand the difficulty for you. It is up to the lead committee to say whether it thinks that the interests of the citizen are being protected. However, I would say that your choice of procedure does not seem like a good precedent. Other members of the committee might be interested in contributing to that point.
I understand the need for consultation and accept that there is continuing consultation but, as the convener said, to use that as an excuse for not using the affirmative procedure does not seem to set a good precedent.
Why is the affirmative procedure not considered the proper way of going about things in the first case?
It is thought that there is already a lot of information in the bill—more so than would usually be the case—and in the consultation paper, which will allow members to see their way around what we hope the scheme will look like, subject to fine detail. There is already a lot of information out there.
I am not sure whether that completely covers it. Section 7(3) states:
It comes down to the unusual situation that we are in, as the convener said, of the cart being before the horse. We tried to include in the bill all the considerations that will be taken into account in the regulations. Until the results of the consultation are known, that is as much as we can offer.
It seems to me that there is no reason at all why an overarching principle of the affirmative procedure should not be applied, regardless of the fact that the fine print has yet to be arrived at.
I do not think that we will progress beyond this point, other than to record the committee's concern that such a fundamental change and such an important measure should be subject to the affirmative procedure in the first instance, as Bill Butler said.
How would the witnesses envisage that affecting the timing or things such as that?
The timing is a concern. Ministers made it clear in evidence to the Social Justice Committee that they were keen to have the scheme in force as quickly as possible because one of the fundamental principles of the bill is to have the debt arrangement scheme in place with the other schemes. It was made clear that we would try to get the scheme in place as quickly as possible. That is why the negative procedure was felt to be more appropriate.
I completely understand the political imperative and I am sure that the committee does, too. However, I do not know how you can describe timing as a fundamental principle. I suspect that if we stress strongly enough that this sort of procedure should not be adopted—
We have certainly taken on board what the committee has said and the concerns that have been raised. We will take that back and discuss it with ministers again.
Right. Okay.
There is something outstanding from the committee's first question that might be worth mentioning. The theme of consultation runs generally through the committee's questions.
Hmmm—not that we doubt the ministers. We think that the ministers are just peachy, but sometimes it is quite a good idea, if you are talking about sequestrating people's assets and stuff like that, to have more formalised consultation.
I think perhaps that ministers have, in this subject matter, demonstrated their commitment to consultation in, for example, the weighty consultation document and also in the report by the working group, "Striking the Balance: A new approach to debt management", which preceded the bill.
Nothing in the bill states that the next lot of ministers who come in must produce as weighty a consultation tome. That is where we would take issue with what was, no doubt, an exhaustive consultative exercise this time round. However, we would like to feel that future ministers might feel themselves under a duty to do exactly the same thing.
I would hope that the Executive's practice on consultation generally would continue.
We hope also, but this committee does not go in for hope; it goes in for small print, does it not?
What would be the problem in making that willingness to consult explicit rather than implicit, as you seem to say it is? The problem with that implicit consultation, of course, is that it is not visible in the bill.
For practical purposes, it would be helpful to know exactly whom it would be appropriate to consult. There is an extensive list of those who have been consulted at the back of the consultation document. Obviously, one would not want to list all of those, although ministers thought that it was appropriate to take their views if they wished to give them.
Perhaps I am missing the point, but why should there be hesitation in making a general duty to consult explicit?
I have tried to explain the implications of making a general duty—if one then does not have a duty to do something, the implication might be that one need not do it.
That would be unfortunate. However, if I may say so, such a construction on a circumstance would not be commonsensical. I still do not understand why there is such hesitation in expressing explicitly a general duty to consult.
I think that there is such hesitation simply because ministers regard consultation on legislative change as normal practice.
I ask for the convener's indulgence. I take Laura Dolan's point, but the convener asked, if the current estimable bunch of ministers were some day to be replaced by a not so estimable bunch—
Excuse me—I did not refer to an estimable bunch of ministers. I said that they were peachy.
You can say things your way, convener, and I will say them my way. It may be highly unlikely, but what if the current ministers were replaced by a not so estimable bunch of ministers?
I would hope that the officials who would advise them would continue to follow a reasonable course.
We are probably being a little paranoid and thinking about the worst possible scenarios, which will obviously not occur in a democratic, freedom-loving country such as ours. However, Bill Butler is trying to say that there should be consultation and that one cannot presume that everybody will be normal and decent down through history.
I will try to summarise. The committee remains mystified about such reluctance for the general requirement to consult to be included in the bill. That is the belt-and-braces procedure, which the committee likes with consultation and people's rights.
There is great strength of feeling in the committee and I will make ministers aware of it.
Thank you. Does that cover sections 2 and 7 of the bill?
Section 8(1) deals with the functions of the Scottish ministers. We have no difficulty with the power in principle, nor with the chosen annulment procedure, but we consider it to be unusual that the bill would allow the Scottish ministers to delegate their powers to make delegated legislation under this part of the bill. We doubted whether that is the Executive's intention and whether it is acceptable for some other person to exercise the function of making delegated legislation. Was that the intention? Is it okay for somebody else to do what the ministers normally do?
We are grateful to the committee for raising the issue, as it was not intended that the powers to make subordinate legislation should be exercised by anyone other than the Scottish ministers. The section should be amended to provide that the powers cannot be delegated and it is intended that an amendment be lodged.
That is good. I thank you for your answer.
The exercise of the power would involve updating the list to include any other order of a court or tribunal which authorised diligence to be done. The exercise of the power would not itself extend the list, as that would be conferred by other primary legislation. Little change would be possible by the exercise of the power. The intention is simply to accommodate in the definition of decree any other type of order or warrant that other primary legislation had deemed enforceable by that means. We thought that the matter was one of detail and that it was appropriate to proceed by the negative procedure.
Perhaps the lawyers in the committee can help me. Is the matter one of detail?
I have no concerns about the issue.
I should add that we appreciate that it was intended that the power would also be exercised in relation to the definition of "document of debt" and should apply in the same way. Again, the intention is to prepare an amendment.
Perhaps at section 5, a liability order would be a good example of an innovation with an equivalent effect to a decree. The intention is to allow the possibility that in future there might be a liability order or an equivalent under another piece of primary legislation. Discussion of that could take place in the context of primary legislation.
I am glad that you caught that train this morning, Brian.
I am always glad to catch the train to come to the committee.
That is good. What you said is helpful.
I accept the explanation.
Okay. Brian rules.
My comments in this context are also relevant to schedule 2 and the committee's question about that. Section 11 and schedule 2 provide in a similar manner for assets that are to be exempted. The difference lies in whether they are in domestic premises or premises that are not domestic. The aim of the provisions is simply to allow the list of items of types that are already set down to be added to, deleted or varied according to changing circumstances. Changes in the economic or social climate and technological developments might merit updating the list. The intention is not to widen the scope in any way, but to enable particular adjustments to be made effectively in the lists. It was thought that the most appropriate, straightforward and efficient way of responding to change was by making the power subject to the negative resolution procedure, which follows similar arrangements made under the Debtor (Scotland) Act 1987.
Do you envisage any circumstances in which technical innovation would lead you to remove any of the articles that are exempted from attachment?
It is mainly a case of adding articles, is it not?
I imagine so but, not being technically innovative, I find it difficult to imagine what new developments will come along. I imagine that such items might be added.
I have no difficulty with additions but, given the narrow scope of section 11(1)(a), for example, I do not understand what would need to be removed as a result of technological advance. Books might need to be removed. We are straying into policy areas.
I cannot imagine that, even if we had electronic forms of books, we would want to do away with standard books.
I am pleased to hear it.
It is true that we do not want to stray into policy areas, but if the Executive can add to, delete from or vary the list of articles exempt from attachment, should not that be debated?
That comes down to consultation. Section 11 follows similar arrangements under the Debtors (Scotland) Act 1987. Changes were made to those provisions only after consultation.
The bill contains no statutory requirement to consult on such changes. I agree that, if a duty to consult existed, that would negate our objections and concerns.
If ministers thought that there was an issue with the provisions, they would consult and then introduce an appropriate amendment that reflected the views that they had heard.
I agree with the convener in principle. I am a great fan of using the affirmative procedure rather than the negative procedure, as the committee knows. However, it is hard to envisage a situation in which ministers would want to remove anything from the list. That would be such a draconian change that it would completely do in the legislation. Articles are much more likely to be added, which does not cause the same worry. Most of us are not worried about that.
The changes to the similar provisions in the Debtors (Scotland) Act 1987 involved additions. Computers, for instance, were added. That is a prime example of technological advance meaning that something becomes a household item.
When a bill provides for a power that can defeat it, that worries me less than when a bill contains a power that undermines it. I know that that sounds rather odd. However, once a Government has decided to defeat legislation, it will do so by one method or another, such as introducing a bill to repeal it.
A duly elected Government has the right to do that.
The power in section 11(2) is included to enable ministers to add to the list of exempt items. I find it hard to imagine that it will be used to take items out—although that is theoretically possible—and I therefore worry about it less than I might under other circumstances.
There might be a situation in which, in adding an item, ministers might want to delete a previous item that the new one makes obsolete.
I am totally determined that Mr Fitzpatrick will not make books obsolete. I will rail against that. I cannot imagine that we would ever get to that point.
I know that the committee is concerned not to raise policy issues, but we can discuss the matter of deletions from the list with ministers.
Section 39 concerns expenses chargeable in relation to attachment. Subsection (2) enables the Scottish ministers to modify schedule 1 in order to add or remove types of expenses incurred in the processes of attachment and auction to or from those listed or to vary any of the descriptions of the types of expenses listed. Why is the provision not subject to affirmative procedure?
The issue is similar to the one that we discussed on section 11 and also applies to schedule 2. The Executive feels that, once the new arrangements are up and running and have been reviewed—ministers have made a commitment to carry out a review to find out how the arrangements are working—it may be necessary to add such items to the list, remove them from it or vary descriptions. The power would give ministers the flexibility to do that in a straightforward manner.
Presumably, any amendment to sheriff court fees or sheriff officers' fees in respect of any actions that they were taking in relation to attaching, taking, offering for sale and auctioning items would be dealt with by a sheriff court fees amendment order or a similar order for sheriff officers and messengers-at-arms. Did we not do a sheriff court fees amendment order only last week?
Yes, we did.
If we tried to set such matters out in the bill, we would simply be replicating other legislation.
The fees are dealt with in a separate statutory instrument.
That is reasonable.
There was another matter.
There was a wee typo somewhere.
Yes. Section 39(1) contains an incorrect reference. That was a printing error, which needs to be corrected. The error is replicated in sections 40(2)(a) and 44(1). I am advised that those printing errors will be corrected in the next print of the bill and that there will be no need for amendment.
If they can be fixed, that is all right. You spotted one more error than we did. Good.
Again, we are grateful to the committee for that observation, because it is a bit different from the question of adding or removing items from the lists of exemptions and expenses that we have already discussed. The policy intention is that an exceptional attachment order will be granted in very limited circumstances and that the factors to which the sheriff should have regard will have a direct bearing on the situations in which it will be appropriate to grant such orders. Taken with section 47, section 46(4) defines the exceptionality of the order. We agree that we should consider further the choice of procedure for section 46(4). As a result, we intend to discuss the matter with ministers.
Good. Thank you.
I welcome that clarification. I know that I have already had my thruppence-worth on the matter. However, we should revisit the provision. Because the legislation sets out factors that sheriffs should bear in mind, it virtually tells them when or when not to grant an order. Changing such a provision is not a minor matter; it is at the heart of things. Because the granting of orders will depend on what we tell the sheriff to take into account, changing any of those factors will affect whether orders are granted. Although it might not seem as though we are taking powers away from a sheriff, in effect we are, because we are telling him in a roundabout way when to grant an order. I am glad that the procedure will be reconsidered, because any changes should be subject to the affirmative procedure.
I am glad that the Executive officials have taken on board the committee's point of view. What about section 47, which relates to exceptional circumstances?
It is the same difference.
Is that right?
I am not so sure of that. The figures were based on the Scottish Law Commission's recommendations. The intention was to ensure that a minimum significant proportion of the debt would be realised. Section 47 simply allows for the figures to be reviewed in light of changing circumstances.
Presumably the section simply allows for the passage of time and the effects of inflation.
Those factors would probably give rise to a change. I cannot think of any others.
I have to back-pedal now; the provision is not the same. I do not think that section 47 is as important as section 46. However, I have just noticed that both the amount and the percentage can be changed. We could change the figure to 1 per cent.
Once the legislation is up and running and there has been a review, it might well become apparent that the percentage is either too high or too low.
That becomes quite a substantive change. Changing the percentage again might affect when the sheriff decides to grant an order.
I realise that section 47 is not exactly the same as section 46. However, it could give rise to a considerable change and the committee would want to press for further consideration of the use of affirmative procedure for the provision.
We can certainly take ministers' views on that suggestion.
Brian, are you happy with that?
I share Gordon Jackson's view. I am not too bothered about the reference to £50 in section 47, but the percentage is another matter. The only detriment to the debtor that I can foresee is where that percentage is decreased.
Absolutely. Ministers could say, "We want to make it harder for debtors, so we will make the figure 1 per cent." The figure could even be changed to half a per cent, although I am not saying that anyone would do that.
One could imagine that, with the passage of time, the percentage would be increased, but who knows what lies ahead?
I do not think that any of us would mind if the percentages were increased, although that might involve policy considerations. However, not everyone thinks like I do on the subject.
Oh, no. We all think like you do on the subject, Gordon. That is why we—
My point is that changing the percentage would be a substantive change.
Yes, it would be. In the light of the committee's concerns, will the officials reconsider the procedure, please?
We certainly will.
Section 58(4) makes provision for schedule 1 to the bill, regarding non-essential assets, to be applied to other methods of enforcement—that is, sequestration for rent and arrestment. The subsection also enables such application to be modified by the Scottish ministers by order. An order under section 58(4) is not subject to any procedure. That is okay, although we appreciate that the power is wide-ranging and consequential. However—
This is about consultation, convener.
Yes. A number of comprehensive powers that relate to reform of the feudal system have been introduced recently. If those powers were insufficient, would any necessary repeal be swept up in a statute law revision exercise?
We are grateful to the committee for raising the main question, which is about the power under section 58(4). As drafted, that power could be exercised in circumstances other than as a consequence of the abolition of the feudal system. No doubt, the committee will be pleased to learn that that was not the intention. The Executive intends to lodge an amendment at stage 2 to provide that the power can be exercised only on or after the date that ministers appoint for the purposes of section 71 of the Abolition of Feudal Tenure etc (Scotland) Act 2000. That should deal with the problem.
Yes. Thank you. Before you go, we will ask you about paragraphs 3(b), 3(d) and 5 of schedule 2, on non-essential assets.
Those provisions deal with altering the aggregate money limit and adjusting the list of non-essential assets and they raise similar issues to those that we discussed earlier. Our response is the same. We have already undertaken to discuss those provisions with ministers and to advise them of the committee's views and we will do so in relation to schedule 2 as well.
I thought that we had satisfied ourselves on that point. I thank the witnesses for attending.