Justice and Home Affairs Committee, 27 Sep 2000

Meeting date: Wednesday, September 27, 2000

Official Report 216KB pdf

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Petition

Item 6 is petition PE102, which was circulated some time ago. Members will recall that it suggests that sequestration law needs to be changed. In particular, it raises the question of the right of appeal against a sequestration order. In May, we decided to carry out an investigation to find out whether the Executive's review of the law of diligence would cover this matter. We also sought information from various sources, such as the Law Society of Scotland, Money Advice Scotland, the Accountant in Bankruptcy and Citizens Advice Scotland. Some of those whose advice we sought answered and some did not. The general view was that the law was satisfactory. Although there is no appeal against a sequestration order, one can petition to recall it, which might be viewed as amounting to the same thing.

It was also suggested to us by at least one organisation that better guidance might be given to people in this situation. We have several options. The first option is that we do nothing, because we think that no argument has been set out for changing the law. We could, however, refer the matter back to the Executive and ask it to consider whether there is a case for changing the law and how it could improve the information that is available to people in that situation so that they know what their rights are. At the same time, we could ask the Executive to comment on whether it is satisfied that the law is European-friendly.

The suggested options are to do nothing or to ask the Executive at least to consider the matter. Either way, we should tell the petitioner precisely what we are doing. I know that Christine Grahame has views on this.

I am pretty ignorant about such things, but is a petition for recall of sequestration heard only in the Court of Session? I think that, because it is a petition proceeding, it may be handled by the Court of Session. Perhaps we should ask whether petitions for recall could be heard in the sheriff courts, as there are huge differences in different parts of the country. The procedures could be addressed.

I agree with the information, but I would like clarification about the legal aid procedures. When people apply for legal aid, they might also get advice and assistance. However, I am not sure how the processes of what used to be called emergency legal aid click into place for people who are appearing in court. I would like clarification on those issues, because I know that people tend to come forward very late with such problems, saying, "I've had this thing served on me." In many cases the notice period runs out that day or the next day, because they have put everything off.

We can certainly ask for clarification on those points. I understand that only the Court of Session can recall an order of sequestration, although I would be the last person to pretend that I was an expert in that area.

I thought that that was the case. However, having been out of the business for a year, I begin to wonder how much I know. I think that there is scope to consider a change of jurisdiction. A plumber who is sequestrated in Forfar has to petition his recall in the Court of Session, and perhaps that should be changed.

If we write to the Executive, we could ask whether it thinks that there should be any changes to the law. That is something that it could consider.

I think that something in this petition needs to be examined. I know that the Law Society of Scotland has given us a response to it, but I think that that response is totally inadequate, as it does not go into what recall means and how it would have helped the petitioner.

We should not simply end the matter here. The petitioner went to the court in good faith and attempted to pay the debt that he thought he was liable to pay, only to find that he had to pay the whole debt. If that was not obvious to him as a businessman, it cannot be obvious to the ordinary person. We must get to the bottom of that. Even if we do not change the law, the system must be easier and more transparent so people know exactly why they are going to court and what their rights are.

I get the clear impression that members do not want simply to draw a line under the matter. We shall refer the petition back to the Executive and ask it to deal with the issues that I have mentioned and other issues that have been raised. When we receive the Executive's response, we can take matters on from there. Is that agreed?

Members indicated agreement.

The last item relates to the Protection of Wild Mammals (Scotland) Bill, and will be handled in private.

Meeting continued in private until 12:02.