Given the time that we have, we wish at this stage in proceedings to narrow our discussion down to the key issues, or rather to highlight them. I have received a request from one committee member on the possibility of delaying our consideration of the bill until next week. From our point of view, as we are not having a session on Scottish Enterprise, that would not be a problem, provided we were pretty near to agreeing our report. I believe that the Deputy Minister for Enterprise and Lifelong Learning will be in Australia next week, however.
Yes, I will be.
That would make things quite difficult.
I am happy with that as long as I can come in with a question.
Of course.
I am happy to proceed according to that constructive approach. There are certain areas where we are reviewing the current position with Cabinet colleagues, and that may or may not result in changes. I cannot give details on those today, although there are a couple of areas where I can say that we have decided to make changes, and I could indicate in general terms the areas where we are reviewing what might go into regulations, assuming that the powers are given to us. Perhaps we could have a useful discussion around that. The committee will have been subject to the same representations from various interests as we have.
The union of the Parliaments.
My mistake.
Did you use the word "celebrate", minister?
Indeed. How could I make that mistake?
Have you had time to look at the Finance Committee's report? If so, have its comments on the proposed new commission caused you to rethink that part of the bill?
In the light of others' comments, we looked again at the report. However, we still believe that the commission remains the best route for addressing these matters.
If the commission is the best route, what other options were considered?
The first option was, of course, to leave the existing system as it was. However, we were persuaded that that was not a good approach, and the committee has heard from witnesses who acknowledge that there are difficulties with the current regulation of enforcement and support the commission's establishment.
It might be.
In that particular area, because we are dealing with court functions and because debt is a very large area of economic activity—hundreds of millions of pounds are at stake; the figures might be surprising—we concluded that by far the best way to tackle it was to have an independent commission that would be clearly separate from the Executive and which would have an independent voice. Most of the other options would not provide that. Compared with that of most of the other options, the additional cost of having an independent commission was getting on for £100,000 per year; I think that we projected a figure of £98,000. We concluded that that would be good value for money. Independence in this area is so important that it is worth paying that much extra over the other options that we considered, not least because as well as regulating court offices, which is the main thrust of what the commission will do, it will provide other information and research benefits and the kind of evidence-based policy to which we will all aspire in the future as well as today.
It will be interesting to receive that letter and to see the detailed analysis of the six different options. I am not necessarily persuaded that the commission's independence would be compromised by its cohabiting with another body in the same building. It might be that some economies could be gained through the sharing of some common resources, which could help to reduce the operating costs of such a body.
I was not persuaded of that either.
I presume that we will have the letter before we start our stage 1 report.
I hope that it will be circulated before the Official Report is.
My second point is about land attachments and the introduction of a form of diligence in that area. The minister will be aware that the committee has expressed concerns about the matter and the possibility of someone's house being sold as part of the process of recovering debts that they have acquired.
I undoubtedly share some of those concerns. Revisions have been made to current proposals on debtor protection and the provisions of the Mortgage Rights (Scotland) Act 2001.
That was a helpful answer.
No, but we are considering whether the proposed minimum level is appropriate and how it relates to the minimum level for sequestration. The convener has raised a point in that regard and, without pre-empting the outcome of our considerations, that point has some merit.
Will that sort of information be available before we start stage 2?
It should be.
It will be or it should be?
It is not for me to say.
I would like to be able to give a definitive yes, but as I said when talking about judicial officers and appointments, I cannot give you a definitive yes. I would hope to be able to provide such information at stage 1, but the issue is out of my hands. It has to go through the Cabinet process for approval, which it does not yet have.
So if we do not have it by stage 2 we will blame the Cabinet.
I would hope and expect that you would have it by stage 1, not stage 2.
If I want to introduce amendments at stage 2, it is helpful if I understand where the Executive is going. The danger is that I could go away and expend energy drafting amendments only to find that the Executive intended to do everything that I wanted to be done anyway. I and other committee members would find it helpful if we could receive information as early as possible, before we start stage 2, so that we can decide whether we want to lodge amendments.
It would also make things easier from my point of view—I have been through this process before. I would want you to have information as early as possible so that, when you come to consider stage 2 amendments, you do so with the information that you need. That would help me as well as helping the committee.
It might be useful to mention the informal discussions that we have had about the timescale for stage 2. If we assume that the bill passes stage 1, I hope to take at stage 2 the second and third themes of the bill before the summer recess and the first and fourth themes—what you have said relates to them—after the summer recess. The likely changes are all to the first and fourth themes. You and I have discussed that informally.
I am happy with that.
Much depends on the Executive's processes. I am happy to share with the committee clerks our thinking about when we will release information, which depends on ministerial decisions. That might also assist the committee.
That would be extremely helpful.
I am confident that the timescale that you and we envisage can be met and that the process will be improved as a consequence. The last thing that I want is for members to produce stage 2 amendments that are uninformed by our proposals.
Many matters will not lend themselves to substantial amendment at stage 3 in such detail; amendment must happen at stage 2.
I agree entirely. We want to sort out matters as far as possible at stage 2.
I will take up an issue that relates to court or sheriff officers, which I raised at a previous meeting and which members will recall. What evidence led the Executive to say in paragraph 380 of the policy memorandum that each partner in an officer firm or sheriff officer will be required to be a messenger of court? I do not quite follow the logic. I note that Stirling Park referred to that in its evidence.
I am familiar with the representations that Stirling Park has made to the committee; it has made the same representations to me. I have said publicly that we do not intend to be restrictive. We want to take a flexible approach and we do not want anything that we introduce to interfere with officers' ability to function effectively. I ask Andy Crawley to outline the thinking behind our proposal.
Perhaps it would help if I gave an example, although I cannot use names because of confidentiality in the enforcement system. Two officers from a firm of sheriff officers were disciplined by the courts—the existing regulatory authority—for cutting corners in enforcement practices, which meant that debtors did not receive the notice that they needed to try to protect their position. The courts decided that a large part of the reason for cutting corners was the actions of the sheriff officer firm's owners. However, the owners were not sheriff officers or members of any other profession, so the courts could not discipline or regulate them. That is a structural problem in the enforcement system. People who make money from enforcement services are not necessarily subject to regulation, unlike their colleagues, which is wrong in principle. That is part of the evidential background to our decision to make the reform. I suggest that even one example was a sufficient reason for reviewing the policy.
Minister, you spoke about the debt arrangement scheme in a reply to Michael Matheson. I will ask about the proposed cascade of arrangements, which involves protected trust deeds, on which consultation continues, and the debt arrangement scheme. It is suggested that because you are still consulting on protected trust deeds, we will be far into the bill process before we have clarity about how the cascade might work.
We discussed that matter earlier this afternoon, partly in anticipation that I might be asked about it. Obviously, we are happy to consider suggestions from the credit unions, among others, about their ability to function in the revised environment. However, some of the issues that they have raised have cross-departmental implications. As I understand the matter, there is pressure for them to operate more commercially, as lenders of finance as well as creditors. It is important that we co-ordinate our response with other ministerial portfolios. However, we will consider seriously the proposed solution and examine whether a case can be made for the credit unions to be treated separately from other creditors, given what they see as their important role in the wider social inclusion agenda.
You were asked earlier about when the information on the changes and the results of all the consultation will be available to us. It is obvious that the information on protected trust deeds will not be available in advance of the stage 1 debate on the bill, unless you say differently. When might we have sight of a coherent package?
We will be able to publish information from the consultation exercise, but we are unlikely to have finalised our conclusions on what that is likely to mean for the shape of the regulations. It is important that we continue to consult the interested parties—insolvency practitioners, credit unions and others—on different sides of the various divides.
I have one last caveat. As I have sat on the Subordinate Legislation Committee, I do not like matters being left to subordinate legislation. Can you say what will appear in the bill about those regulations?
I am happy to brief the convener and committee members informally on the difficulties that arise and on where our thinking on the general direction of travel is taking us. I point out that I require to take Cabinet colleagues with me on the matter.
Christine May's question is a fair one and it is one that many stakeholders have asked us. We can certainly say that the direction of travel on trust deed reform is that the number of trust deeds will fall. That seems pretty clear, whether we bring in the scheme that is in the draft regulations or develop an alternative model in our on-going discussions with the insolvency profession.
I have a couple of questions that, for the purpose of brevity, I will ask together. When the Executive introduced the bill, the justification for it was that it would encourage a more entrepreneurial approach to business. It is pretty clear from the evidence that we have taken that there is little to support that view. The minister may disagree, but I am sure that committee members agree with me that any effect that the bill will have on entrepreneurship will be entirely marginal. In the light of that, what is the point of changing the period of bankruptcy from three years to one year except to bring Scots law into line with English law? As a unionist, I would not disagree with that policy objective, but I am interested to hear the minister's comments on that.
I think that we have, but that is another area in which we are considering the bill's implications. The substantive point was raised the last time that I was before the committee, when I said that we would look for more empirical evidence that might convince you of the case, irrespective of what was being argued in the rest of the UK. As I said at that meeting, the bill is part of the process of the Lisbon agenda in general across the European Union. It is seen as one measure, although not the only measure—
I should clarify that the European Union was not the union that I was talking about.
I am sure that that is the case.
I also asked about the time period for payment.
Are you referring to the idea that all the periods in the bill should be synchronised at one year?
Yes.
We gave a lot of thought to that. In my view, that idea is superficially attractive but does not stack up. When one starts to think about how such a system would be made to work, one can see the holes. For example, what would one-year payment, one-year discharge mean? Experience of the system in England has shown that it would take between four and six months of the one year to set up an income payment arrangement. Would that mean that the one-year payment period would continue for six months after the discharge, or would the person pay for six months and then be discharged—which would mean that it was not a one-year payment period?
Thank you; that was very helpful.
Another consideration that you might be interested in is that, in the scenario that you propose, we estimate that smaller businesses would be more likely to be losers than their larger counterparts. I am sure that that is just as important a consideration for you as it was for us.
You will be pleased to know that some of the broader issues that I wanted to raise have already been covered. I will focus on money attachment—on which we had an extremely interesting evidence session—and wider, related matters. Nearly everyone to whom we spoke said that money attachment had its place but what was important was how the regime that was put in place operated in practice. The safety of sheriff officers and how heavy-handed creditors were in using that form of diligence were issues that were raised.
I can understand that concern. Ideally, we would want to minimise the use of secondary legislation, but the bill undoubtedly covers areas in relation to which we need to take powers and, through secondary legislation, regulate for their enforcement. I will let Andy Crawley talk about our direction of travel on money attachment. It is a form of diligence that, in general, continues to be supported by creditors. We are aware of the issues that it raises and have discussed them with sheriff officers and others.
We were quite surprised by the strength of feeling that was evident in some of the evidence that the committee took. As you will appreciate, the legislative process does not happen in a vacuum. We have had extensive discussions with many stakeholders and, although we may have been wrong, our view was that money attachment was a fairly technical measure that some creditors—especially public creditors—found useful and, as such, was a useful addition to the toolkit. That is still our view. However, given that people have expressed those views to the committee, I am happy to say that we will go away and have discussions with them, in particular with the sheriff officers who have to do the deed on the ground. We will ensure that their concerns about health and safety are addressed.
I am grateful for the reply. I am reassured by much of what was said, but it raises a number of wider questions about how we can get to the bottom of and resolve what are essentially practical issues—as distinct from differences of opinion about policy, which are obviously quite another matter, or differences between vested interests, which will always occur. If we are in terrain where people right across the different interest groups are broadly in agreement on the policy intent and are agreed that the bill is something that we want to do, surely all of us need to work together to resolve the issues. I accept the point that all the issues may come down to legislative detail and administrative arrangements.
It will not surprise Susan Deacon to hear that I agree entirely with what she has said. However, to some extent, she and the convener will have to come to their own conclusions. Michael Matheson mentioned the process for lodging stage 2 amendments, but the dichotomy that he highlighted always arises in any piece of legislation. Questions such as what should be in the bill, what should be put into regulations and what are administrative matters are always raised. I agree entirely that, in this instance—as in most others—there are clear dividing lines. I suggest that, as legislators, we should stick to policy and its implementation through regulations. We should try to minimise the type of manuscript amendments that put things in the bill simply to complicate the process.
I will leave it at that for now, convener.
That covers all the questions and points that we wanted to put to the minister. No doubt there will be others, particularly in our report in more detail. We will complete our report on 16 May for publication on 17 May. I believe that the stage 1 debate is on 24 or 25 May. I thank the minister and his officials once again for coming before the committee. That was a useful session.
I reiterate our willingness to engage in off-court discussions, so to speak, on the issues. We are happy to discuss the issues that Susan Deacon and others raised. We want to try to secure consensus on the issues.
Good. Thank you again, minister.
No. I am sure that no one wants me to highlight anything. I know my place.
I think that we are fairly clear about everything. The clerks will produce a draft report for consideration next week and we will finalise it the following week. Are we agreed?
Meeting closed at 17:35.
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