Mortgage Rights (Scotland) Bill: Stage 3
We now proceed to stage 3 consideration of the Mortgage Rights (Scotland) Bill. I will make the usual announcement about the procedures that will be followed. First, we will deal with amendments to the bill. We will then debate the motion to pass the bill. For the first part of the debate, members should have a copy of the bill—SP bill 19A—as amended at stage 2, the marshalled list, which contains all the amendments that I have selected for debate and the list of groupings that I have agreed.
Amendments will be debated according to the groupings, but disposed of in turn according to the order of the marshalled list. An amendment that has been moved may be withdrawn with the agreement of members present. It is, of course, possible for members not to move amendments, should they so wish.
The electronic voting system will be used for all divisions. I will allow an extended voting period of two minutes for the first division that occurs after the debate on a group of amendments.
That being clear, I call Cathie Craigie to speak to amendment 1, which stands in a group of its own.
Section 1—Application to suspend enforcement of standard security
Amendment 1 extends to a non-entitled spouse the right to apply to the courts under the bill when they live in the property with the debtor or proprietor. The bill allows a non-entitled spouse—a term that derives from the Matrimonial Homes (Family Protection) (Scotland) Act 1981 and refers to spouses who are not the owner of the property—to apply to the court under the bill when the property is their sole or main residence but not the residence of
"the debtor, or, as the case may be, the proprietor."
The bill also refers to spouses who are not the owner of the property.
The 1981 act gives non-entitled spouses automatic occupancy rights to the matrimonial home. The Mortgage Rights (Scotland) Bill will protect non-entitled spouses when a couple has separated, for example, by giving non-entitled spouses the opportunity to apply to the courts in the same way that debtors can. That complements the 1981 act, which gives the court the power to order that the non-entitled spouse shall take on the mortgage payments instead of the entitled spouse, who is the debtor. That was intended to prevent separated spouses from taking no action to avoid repossession while no longer being resident in the property.
Amendment 1 is linked to amendment 2, which we will discuss with group 2. As I would like to avoid repeating myself and debating the same issues twice, I have tried to keep my remarks about amendment 2 brief. Following debate in the Social Justice Committee at stage 2, I agreed to lodge amendments at stage 3 to allow partners who are not debtors to apply to the court under the bill. Amendment 2 will allow partners to apply to the court when the debtor remains in the property, as that reflects the occupancy rights that non-entitled partners in opposite-sex couples have under the 1981 act.
I was keen to avoid an imbalance in the bill. Amendment 2 allows a partner to apply if they are resident with the debtor. However, if no amendment is made to the current provisions, a non-entitled spouse could not do that. To ensure consistency in approach—and because it has merit in its own terms—I decided to lodge amendment 1. It seeks to allow the spouse of the debtor to apply to the court under the provisions of the bill, even if the property is the sole or main residence of the debtor—or the proprietor, if different.
Although, in most cases, it is likely that non-entitled spouses will wish to apply only when the debtor is not resident, there may be other cases where they would prefer to take the lead: for example, if the non-entitled spouse is the main breadwinner. It is only right to allow for that possibility and I believe that amendment 1 achieves that aim.
I move amendment 1.
At this point, no members have indicated that they wish to speak, although it may be that the cards are not reading correctly. I have one or two members showing up on screen now.
I thank Cathie Craigie for her explanation of amendment 1. She rightly pointed out that as amendment 1 was associated with the second grouping, she did not intend it to stand alone. I would have preferred to deal with it in those terms, although I can see why it might stand on its own. However, someone else made that choice for us, although amendment 1 would not have arisen without amendments 2, 3, 5, 7, 8 and 9. I have concerns about the overall groupings, but I will deal with those as we move through each group of amendments. Amendment 1 should not be dealt with independently, as it does not stand on its own.
I call Mr Aitken. He is masquerading on my screen as Mr McLetchie, but so be it. [Laughter.]
I am the good-looking fellow.
The point that Brian Adam made was apposite. For amendment 1 to stand on its own does not lead to a well-structured debate. As we are debating an entirely worthwhile piece of legislation this afternoon, it is not my intention to delay the chamber. I will reserve my position until amendment 2 is debated, later on in the proceedings, when I wish to debate the matter at greater length.
I am a little nervous that my screen is not quite up to speed. If other members wish to speak will they please raise their hands? As no other member wishes to speak, I call the minister.
I will pass no comment on Bill Aitken's comparison to Mr McLetchie.
I recognise the points that have been made about the groupings, but we must deal with the debate as it stands. The Executive supports amendment 1 and the work that Cathie Craigie has done in considering how to take forward the stage 3 amendments that relate to the partner of a debtor. We can discuss those issues in more depth when we get on to the detailed group 2 amendments.
In a number of cases, to allow the spouse to apply while residing in the property with the debtor would provide an additional benefit. That would include the situation in which the debtor was working away from home for an extended period and could not apply him or herself.
We support Cathie Craigie's amendment.
I am sure that Bill Aitken and Brian Adam will understand that I have no influence over how the amendments are grouped. A big boy came along and did it and then ran away.
Amendment 1 will be of direct value in some circumstances and it will also ensure consistency, but I agree that the debate will be around amendment 2.
I ask the Parliament to support amendment 1.
The question is, that amendment 1 be agreed to? Are we agreed?
No.
There will be a division.
For
Baillie, Jackie (Dumbarton) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Canavan, Dennis (Falkirk West)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Fitzpatrick, Brian (Strathkelvin and Bearsden) (Lab)
Gillon, Karen (Clydesdale) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (Edinburgh Pentlands) (Lab)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, Mr John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Jenkins, Ian (Tweeddale, Ettrick and Lauderdale) (LD)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
MacKay, Angus (Edinburgh South) (Lab)
MacLean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
McAllion, Mr John (Dundee East) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McMahon, Mr Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Radcliffe, Nora (Gordon) (LD)
Raffan, Mr Keith (Mid Scotland and Fife) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mr Mike (West Aberdeenshire and Kincardine) (LD)
Scott, Tavish (Shetland) (LD)
Sheridan, Tommy (Glasgow) (SSP)
Simpson, Dr Richard (Ochil) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North-East Fife) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Thomson, Elaine (Aberdeen North) (Lab)
Wallace, Mr Jim (Orkney) (LD)
White, Ms Sandra (Glasgow) (SNP)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
Against
Aitken, Bill (Glasgow) (Con)
Davidson, Mr David (North-East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Ewing, Mrs Margaret (Moray) (SNP)
Gallie, Phil (South of Scotland) (Con)
Goldie, Miss Annabel (West of Scotland) (Con)
Harding, Mr Keith (Mid Scotland and Fife) (Con)
McIntosh, Mrs Lyndsay (Central Scotland) (Con)
Monteith, Mr Brian (Mid Scotland and Fife) (Con)
Mundell, David (South of Scotland) (Con)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Tosh, Mr Murray (South of Scotland) (Con)
Wallace, Ben (North-East Scotland) (Con)
Welsh, Mr Andrew (Angus) (SNP)
Abstentions
Adam, Brian (North-East Scotland) (SNP)
Campbell, Colin (West of Scotland) (SNP)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Elder, Dorothy-Grace (Glasgow) (SNP)
Ewing, Dr Winnie (Highlands and Islands) (SNP)
Gibson, Mr Kenneth (Glasgow) (SNP)
Hyslop, Fiona (Lothians) (SNP)
Lochhead, Richard (North-East Scotland) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
MacDonald, Ms Margo (Lothians) (SNP)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Matheson, Michael (Central Scotland) (SNP)
McGugan, Irene (North-East Scotland) (SNP)
McLeod, Fiona (West of Scotland) (SNP)
Morgan, Alasdair (Galloway and Upper Nithsdale) (SNP)
Neil, Alex (Central Scotland) (SNP)
Paterson, Mr Gil (Central Scotland) (SNP)
Quinan, Mr Lloyd (West of Scotland) (SNP)
Stevenson, Stewart (Banff and Buchan) (SNP)
Sturgeon, Nicola (Glasgow) (SNP)
Swinney, Mr John (North Tayside) (SNP)
Ullrich, Kay (West of Scotland) (SNP)
The result of the division is: For 68, Against 16, Abstentions 23.
Amendment 1 agreed to.
Amendment 2 is grouped with amendments 3, 4, 5, 7, 8 and 9.
This group of amendments provides partners—whether they are of the same or the opposite sex—with the right to apply to the court in certain circumstances. It also ensures that section 1(3A), which requires the consent of the debtor or proprietor and the non-entitled spouse before varying the period in which an application can be made, and the notices in the schedule are updated to take account of that change.
At stage 2, Robert Brown lodged a group of amendments that sought to provide non-entitled partners with the right to apply to the courts in the same manner as non-entitled spouses can under the current provisions. During our discussions at stage 2, I indicated that I accepted the general principle of extending rights to non-married partners, but noted that some issues would need to be considered in more depth before amendments were lodged at stage 3.
The Matrimonial Homes (Family Protection) (Scotland) Act 1981 defines non-entitled partners as cohabiting couples of the opposite sex and allows for certain occupancy rights. The non-entitled partner has to apply to the court for those rights. If the couple splits up, a non-entitled partner who remains on the property without the debtor is unable to apply for such rights, because the couple is no longer cohabiting. There is no provision for occupancy rights for same-sex couples. That said, although some non-entitled partners may not have occupancy rights under statute, they may well occupy the property with the consent of the debtor.
Throughout the process, I have sought to ensure that the bill complements the existing legal framework. I have been clear that any change to the occupancy rights of non-entitled partners would be outwith the scope of the bill. My amendment therefore seeks to fit into the framework provided by the Matrimonial Homes (Family Protection) (Scotland) Act 1981. Amendment 2 seeks to extend the right to apply to partners who live in the property with the debtor, to reflect the fact that partners may occupy the property with the debtor's consent or may have rights under the 1981 act. I indicated at stage 2 that where a partner has responsibility for children, the situation justifies their having similar rights under the bill as non-entitled spouses.
Amendment 2 also provides that partners who do not reside with the debtor—usually because the debtor has left—will have the right to apply to the courts if the partner and the debtor have lived together in a relationship for at least six months and have children under the age of 16 who remain in the property with the partner. The criteria proposed in amendment 2 will avoid others using the provision as a loophole and applying to the court when they do not have a genuine right to do so.
Amendments 3, 4 and 5 are technical and are consequential to amendment 2. They are designed to ensure that a proprietor or debtor cannot shorten the period of notice in a calling-up notice to disadvantage their partner. Where the lender has issued a calling-up notice or notice of default, the bill gives those entitled to apply two months to do so. One month of that application period can be dispensed with or the period shortened with the consent of the debtor or proprietor and the debtor or proprietor's non-entitled spouse. That provision recognises cases in which the debtor has had enough and wants to minimise the arrears that are building up. However, if a debtor or proprietor chooses to shorten the period to minimise their arrears, we must ensure that other parties who may have a right to make an application under the bill are not prejudiced.
The bill was amended at stage 2 to ensure that, if the period is to be shortened, that may happen only with the consent of the debtor or proprietor and of their non-entitled spouse. Amendments 3, 4 and 5 extend the requirement to seek the consent of a partner who is eligible to apply under the provisions of the bill. Amendment 3 makes provision in cases where the lender has issued a notice of default and amendments 4 and 5 deal with circumstances in which a calling-up notice has been issued.
Amendments 7, 8 and 9 are also consequential to amendment 2. The bill currently provides that new notices, explaining people's rights under the bill, must be sent to the debtor and the occupier in every case in which the creditor calls up the security or in which the debtor is in default. The notice to the occupier currently has separate information for tenants or for the spouse of the debtor and advises that they may have rights under the Mortgage Rights (Scotland) Act 2001 and that they should seek legal advice. Amendments 7, 8 and 9 extend that information to the partner of the debtor, so that the issuing of notices is consistent with other provisions.
I move amendment 2.
I thank Cathie Craigie for the opportunity to discuss with her and her advisers the background to this group of amendments. I would like to say at the outset that I see no problem whatever with amendment 4, which is a technical amendment. I accept that a number of the amendments are consequential to the principles of amendment 2.
I am still not wholly convinced of the validity of amendment 2 or that it will achieve everything that Cathie Craigie set out to achieve without making life even more difficult for the debtor. The Council of Mortgage Lenders raised a number of concerns, which it continues to hold. It is true that we debated the principle behind the group when we considered a number of amendments lodged by Robert Brown at stage 2. Unfortunately, we have seen today's group of amendments only in the past day or two, and it is always difficult to get things absolutely right in such a short time scale. It might have been better to have an opportunity for wider consultation on the detail of the amendments at an earlier stage, but I make no personal criticism of Cathie Craigie.
The technical points relate to the fact that the provisions may, now that third parties will be involved, impinge on the rights of the lender and the debtor. The rights of third parties are being extended; they will have the right to intervene, which they did not have before. I recognise that major efforts have been made to dot the i's and cross the t's to ensure that we are not extending those rights in a way that would lead to significant delays for a large number of people who are trying to sort out their financial problems and want to draw matters to an end, but there are concerns about how the procedure, which people inevitably will use—that is why it is there—will be applied in practice.
The ministers should give us an assurance that when guidance is issued to sheriffs—as is normal practice—it will be discussed with the appropriate parties, in particular the Council of Mortgage Lenders, and will come before the appropriate committee. Such assurances would help a number of members on the SNP benches.
Can we also have a guarantee that there will be a review of how the bill works in practice? That should go to the Social Justice Committee.
The Council of Mortgage Lenders' concerns are wide-ranging. It is concerned that we may be offering greater rights to non-spouses than to spouses. The council may be right or wrong, but I am willing to hear the arguments from the promoter of the bill and the minister, if she is prepared to support the bill.
The process is different from the one for the Housing (Scotland) Bill. The Mortgage Rights (Scotland) Bill is not just about succession rights, with which the Housing (Scotland) Bill dealt; potentially, it will impinge on other matters, in particular, the contract between the lender and the debtor and the rights of third parties who have no direct responsibility for the debt.
The motivation behind the bill is right and, broadly, we sympathise with its aims, but there are some technical points on which I would like guidance from the minister and the promoter.
Amendment 4 is a technical amendment and amendments 3, 5, 7, 8 and 9 are consequential to amendment 2, so I intend to address my remarks chiefly to amendment 2, which clearly causes some concern.
I have talked before about defining the terms of a relationship that has all the characteristics of the relationship between a husband and wife, but in which the persons are of the same sex. As the minister will recall, when I raised the matter before, I found it difficult to see how that definition could be made. The intention of the bill is to deal with gay relationships. I have no particular difficulty with that, but I reiterate that I do not think that the definition has anything to commend it in terms of the law. I do not think that the definition will be recognised by the law.
My problem with amendment 2 is chiefly that certain rights will accrue to individuals who are to some extent at arm's length from the original difficulty. Brian Adam raised that point. Where there has been a breakdown in a relationship—conventional or otherwise—the person who finds themselves in difficulty due to the financial implications of being in serious mortgage arrears could attempt to cut their losses. If the amendment is passed, that person's aspirations could be thwarted. In some cases, there may be a moral justification for that, to satisfy the rights of the other party involved, but I am a little concerned that some relationships end acrimoniously and that an application could be made out of sheer spite or bloody-mindedness. I perhaps anticipate what the minister will say when I say that I accept that the sheriff would be entitled to take the circumstances into consideration in determining the matter, but I am a little concerned that there could be injustices and I would prefer that the amendment were not passed.
The other problem arises when a renunciation of occupancy rights has been signed at the inception of the loan, when the standard security was taken out. There is a clear difficulty if the matter is not resolved and it is not clear whether, if we allow amendment 2 to go through, the subsequent act would breach the Matrimonial Homes (Family Protection) (Scotland) Act 1981. I am grateful to Cathie Craigie for the opportunity to discuss that matter yesterday, when I raised my concerns with her. In the same constructive manner that she has adopted throughout the process, she attempted to get answers, but I am not entirely satisfied with them.
It would be regrettable if amendment 2 were to be included in the act. Even at this stage, the promoter of the bill should exercise a degree of caution. There might be advantages—and I mean this in the most constructive manner—in withdrawing the amendment. I will listen to what Cathie Craigie and the minister have to say.
I thank Cathie Craigie for taking on board this aspect, which—as she rightly says—I raised at stage 2.
I am bound to say that the attitude taken to amendment 2 by the SNP and the Tories is somewhat niggardly. It does not seem to relate to reality. This is about a summary application; it is a speedy, summary procedure. The application will go to a hearing before a sheriff. We are not talking about proofs or long, drawn-out procedures. We are talking about a speedy procedure for getting decisions on the continued ability of people to live in their own homes. That is the central point that the chamber should recognise.
Amendment 2 aims to give people who have a certain connection with a household certain rights, similar to those that owners have. One difficulty is that they are not the people charged with the contractual responsibility of paying the mortgage on the house. I know that issues arise out of that, but they are fairly small ones given the time scales that we are talking about.
The amendments try to recognise the social reality of modern life. Social norms were different when the Matrimonial Homes (Family Protection) (Scotland) Act 1981 was passed. Now, more people live in other relationships than are married. That means that the majority of people do not have a marriage certificate to show the court to identify the specific legal relationship that they are in. That causes difficulties in procedure and practice. All the amendments do is give people the right to apply to the court in limited circumstances. Applying to the court is one thing; getting orders of the court is something else.
When the matter comes before the court, it will have to consider the background. It will have to consider who paid the mortgage, the situation, the reason for the debtor not being involved in the process and so on. With sufficient shrieval and solicitor training and background advice for the people involved, there is no reason why the situation should not be considered adequately—the circumstances in which it may arise are relatively limited.
Although there may be a technical difficulty—I appreciate that we have had representations from the Council of Mortgage Lenders—I do not think that it should be overstated. The provision relates to a period of weeks. It does not alter the substantive position, which relates to people who are substantially in deficit on their mortgage payments. The amendments aim to introduce greater equity, without causing the problems that might have existed with the wording of my original amendment, which was significantly wider than the wording of these amendments.
I support the amendments and I hope that the chamber will accept the logic of their being passed.
Although I support the thinking behind the amendments, I am concerned about the first part of amendment 2 for two reasons.
First, the detail of amendment 2 came before us only yesterday. Because the Parliament is unicameral, if we agree to amendment 2 today, it will become law; it will not be chucked out because it is ultra vires or any such nonsense. As a result, this is our only chance to get it right. If there are any technical difficulties—as Robert Brown suggested—this is the only occasion on which we can cure them. In a Parliament that prides itself on consultation, it is a bit rich to lodge complex amendments that will be decided on once and for all on the following day. Who on earth has been consulted on the content of these amendments?
The amendments were lodged in good time—I am not sure whether it was done last Wednesday or Thursday. Furthermore, the issue was very fully discussed at stage 2. As a result, I do not want anybody to think that the issues were before either committee members or the Parliament for only a few days.
I was not trying to imply that the issue has not already been discussed in the Parliament, especially by its committees. However, I do not think that the detail of the specific amendments has been discussed, otherwise they would have been included in the bill long before now.
My second point relates to the specific wording of section 1(2)(c). We must give sheriffs clear instructions if they are to make decisions on such matters. A minister cannot simply write to sheriffs and say, "Here is my ministerial guidance"; it does not work like that. Sheriffs must interpret law and an appeal court might scrutinise parliamentary debates to understand what Parliament was thinking when it passed a particular piece of legislation. However, if the courts listen to the debate so far, they will have precious little to go on that will help them to interpret proposed section 1(2)(c). We have a duty to say what we mean by
"the characteristics of a relationship between husband and wife".
I am not going to make music hall jokes about those characteristics, but I do not think that that phrase is well-defined enough to be passed into legislation and to give a sheriff the guidance that will allow him or her to make a judgment. We should do better than that if we are going to pass legislation.
I must re-emphasise Cathie Craigie's point. There was substantial debate on the issues at stage 2, during which Robert Brown's significant contribution helped us to deal with those issues. Furthermore, at stage 2, we indicated the Executive's support for this group of amendments and recognised that Cathie Craigie had worked towards—and found—a suitable balance between the rights of debtors and the rights of debtors' partners and children.
I will pick up on a number of points that have been made in the debate. First, the CML was fully consulted throughout the bill's progress, and before the bill was introduced almost a year ago. In fact, that organisation made several helpful and constructive comments, some of which have been taken on board. The bill has been under discussion for a considerable time.
Bill Aitken said that a plethora of third parties could delay a possession action. That is not so. The bill includes criteria that must be fulfilled before a third party can apply for such action. The bill seeks to balance the rights of debtors and creditors. Spouses and partners also have important rights and should have the right to apply as third parties under the provisions of the bill.
Furthermore, the CML was advised of the stage 3 amendments relating to the rights of partners to apply to the courts, and was told that those rights would not affect occupancy rights or debtors' obligations under standard security. The CML has also been advised that renunciations will not be affected. A spouse will have the right to apply to delay a possession action even if they have signed a renunciation of occupancy rights, because the provisions that are proposed in the group of amendments do not affect the occupancy rights of the spouse.
On judicial training, I am delighted that Brian Adam is now—having been so resistant to it during the passage of the Housing (Scotland) Bill—advocating guidance. I will clarify exactly how the system will work. We can provide the relevant sections of the parliamentary reports to the Judicial Studies Committee for Scotland, together with a statement of the thinking behind the legislation, which should be taken into account in the compilation of guidance or training for sheriffs. That is standard practice, which means that the Judicial Studies Committee for Scotland will be aware of the concerns that have been raised in the debate.
Will the minister make that material available to the Social Justice Committee?
I am sure that Brian Adam and other members are aware that Jackie Baillie and I try to include the Social Justice Committee in all our efforts. There are provisos attached to judicial issues that I would need to check, in terms of caveats, but I will always do my best to include and consult that committee as appropriate. However, given the fact that this is a judicial issue, I shall have to double check before I do that. I will get back to Brian Adam on that.
It is important that we bear it in mind that this aspect of the bill draws on the Matrimonial Homes (Family Protection) (Scotland) Act 1981, as has been said. As I am sure that members are aware, that act is being reviewed with other family law, and it is not open to us to amend that legislation today. Cathie Craigie has drawn on existing rights under the 1981 act, which provides for cohabiting partners. In the bill, Cathie Craigie has taken into account the importance of protecting children when a relationship has ended, and we think that she has got the balance right.
It is worth noting that, in practice, partners—especially those who have responsibility for children—might well have made some provision to formalise a situation such as the group of amendments provides for. We expect the courts to take any such agreement into account when they consider the circumstances of cases. More generally, we expect the courts to consider the same issues in relation to partners who apply as they would for the current category of applicants in the bill. We also expect the courts, when they consider the circumstances of applicants, to consider debtors' circumstances as part of all the circumstances of cases. We understand that debtors would automatically be notified of proceedings under the rules of court.
Presiding Officer, you will acknowledge that several points have been made; I hope that you will allow me time to respond to them.
The group of amendments seeks to provide partners with the right to apply to the courts under the provisions of the bill in the circumstances as laid out, and to ensure that a partner is informed of his or her rights under the bill through the notice to occupiers. The amendments do not provide partners with occupancy rights; rather, they complement existing legislation. At the same time, they provide a level of protection for partners and their children in cases of mortgage repossession.
The amendments also seek to provide partners—where they can apply under the provisions of the bill—with similar protection to that which is currently provided to a non-entitled spouse, from a debtor's agreeing without their consent to shorten the time period for application. The amendments will ensure that the applications of all parties who might have a right to make an application under the provisions of the bill are not prejudiced. In all cases, the court will consider all the circumstances, including the views of debtors and creditors. The right to apply does not change occupancy rights or a debtor's obligation to a mortgage. [Interruption.] I apologise to members. There is a difficulty with my speaking console. I shall try to speak directly into the microphone.
Will the member take an intervention?
I am just trying to make a point.
Will Cathie Craigie define what she means by partnership? Does she mean a relationship that has a sexual component or does she mean another kind of relationship?
We have heard enough about that. I will put on record exactly who would be able to apply under the provision. Bill Aitken and Brian Adam have raised the issue, and I have made myself a wee grid to make it simple.
How will spouses be affected by amendment 2? They will be able to apply to the courts if they live with the debtor. They will also be able to apply if they remain in the debtor's property, but have split up with the debtor, and they will be able to apply whether or not they have children. A cohabiting couple with no children will be able to apply if they live with the debtor, but they will not be able to apply if they do not live with the debtor, but remain in the debtor's property after they have split up. That is because they would not, in those circumstances, be a cohabiting couple. Same-sex couples with no children will be able to apply if they live with the debtor, but they will not be able to apply if they do not live with the debtor, but remain in the debtor's property after they have split up. Cohabiting couples and same-sex couples will have to prove that they have been living with the debtor for six months.
Cohabiting couples with no children will be able to apply to the courts if they live with the debtor. Same-sex couples with no children will be able to apply if they have split up with the debtor, but remain in the debtor's property. They must demonstrate that they have lived with the debtor for at least six months and that they still have joint responsibility for the children. I hope that members will feel that those provisions take account of every possible circumstance.
Brian Adam said that the CML raised a point about the loophole. That point has been raised extremely late and I do not think that there are any loopholes that people who are not entitled to apply to the courts and who do not deserve protection from the legislation will be able to use.
It is true to say that the point has been raised late, but that is a consequence of the fact that the detailed amendment, although timeous, was not available in time for us to consult on it properly. I ask the minister to encourage the Executive to review at an early stage the bill that is likely to be passed today to determine how the idea works in practice. If the CML's concerns are not appropriate, there will not be a problem. However, its concerns might be valid and I have heard from one source that debtors might have to pay an additional year's interest on a debt because of the delay in the payment of legal aid and other devices.
Interventions are supposed to be brief.
I have a great deal of respect for the CML and I have worked closely with the organisation during the consultation process. However, I am disappointed that that organisation gave a response only to this aspect of the bill, because that has not allowed members—who are obviously concerned about this matter—enough time to become convinced of the fact that the CML has got it wrong. Alasdair Morgan might be confused because members got a copy of the briefing paper only yesterday. I am sure that when they have had time to reflect on them fully, members will agree that the concerns that were raised by the CML are misguided.
Although I have a great deal of respect for the CML, I feel that it has got matters wrong in this circumstance. The bill will not allow a plethora of third parties to apply to the courts. I have stated clearly the protection that the bill will give to groups of people who will be entitled to benefit from the bill, as enacted.
I hope that members appreciate the length of time that was spent discussing the matter at stage 2. The Social Justice Committee—with perhaps one dissenter—agreed that the proposal should be implemented to ensure that everybody was treated the same way, regardless of whether they were married couples, same-sex couples or cohabiting couples.
Alasdair Morgan again mentioned the issue of the definition of the characteristics of a husband and a wife. That definition is included in the Housing (Scotland) Bill and the Adults with Incapacity (Scotland) Act 2000 and I do not recall there being a big discussion about that definition when that act was being dealt with. The definition is established and has been accepted by the Scottish Parliament.
I will allow a last-minute contribution from Dorothy-Grace Elder. I ask her to be brief, because I have to go back to Margaret Curran and Cathie Craigie after her.
I want to ensure absolute clarity and I would like either the minister or Cathie Craigie to respond. I respect the amount of work that Cathie Craigie has done but, in the definition of partnership, will her move protect a couple—two people living in a house—who have not come together on the basis of sexuality in their relationship? For instance, will it protect two elderly sisters who have lived together for years or a couple of old soldiers or former workmates? There are many different relationships that cause people to live together for decades. Does the word "partner" relate to sexuality in a cohabiting relationship or does it apply to people who have lived in a long-term and established partnership, whom I hope we are also trying to protect? If the definition does not apply to them, I ask the Executive to reconsider the provisions.
I assure members that calling Dorothy-Grace Elder is in order. We have time.
Cathie Craigie has outlined all the definitions of partnership. We discussed the matter, as Cathie Craigie said, at stage 2. The amendment clearly puts caveats into the bill in that it recognises established partnerships and relationships.
I remind members that the bill is about maximising rights, which is why we disagreed with the CML's point. The bill is about making sure that people's housing rights are protected. I strongly welcome the moves by Cathie Craigie and Robert Brown to maximise those rights.
I did not pick up every class of person in the long list that Dorothy-Grace Elder gave. My understanding is that rights will be protected. I will go back and check the Official Report. Dorothy-Grace Elder talked about soldiers, for example. I will need to check the position in relation to such people.
On the definition, husband and wife implies a partnership of a sexual nature. The amendments are concerned with that type of partnership.
The question is, that amendment 2 be agreed to. Are we agreed?
No.
There will be a division.
For
Baillie, Jackie (Dumbarton) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Canavan, Dennis (Falkirk West)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Eadie, Helen (Dunfermline East) (Lab)
Elder, Dorothy-Grace (Glasgow) (SNP)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Fitzpatrick, Brian (Strathkelvin and Bearsden) (Lab)
Gillon, Karen (Clydesdale) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Gorrie, Donald (Central Scotland) (LD)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (Edinburgh Pentlands) (Lab)
Harper, Robin (Lothians) (Green)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, Mr John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Jenkins, Ian (Tweeddale, Ettrick and Lauderdale) (LD)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
MacKay, Angus (Edinburgh South) (Lab)
MacLean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
McAllion, Mr John (Dundee East) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McLeod, Fiona (West of Scotland) (SNP)
McMahon, Mr Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Morgan, Alasdair (Galloway and Upper Nithsdale) (SNP)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Radcliffe, Nora (Gordon) (LD)
Raffan, Mr Keith (Mid Scotland and Fife) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mr Mike (West Aberdeenshire and Kincardine) (LD)
Scott, Tavish (Shetland) (LD)
Sheridan, Tommy (Glasgow) (SSP)
Simpson, Dr Richard (Ochil) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North-East Fife) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Thomson, Elaine (Aberdeen North) (Lab)
Wallace, Mr Jim (Orkney) (LD)
Watson, Mike (Glasgow Cathcart) (Lab)
White, Ms Sandra (Glasgow) (SNP)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
Against
Aitken, Bill (Glasgow) (Con)
Davidson, Mr David (North-East Scotland) (Con)
Douglas-Hamilton, Lord James (Lothians) (Con)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Fergusson, Alex (South of Scotland) (Con)
Gallie, Phil (South of Scotland) (Con)
Goldie, Miss Annabel (West of Scotland) (Con)
Harding, Mr Keith (Mid Scotland and Fife) (Con)
Johnstone, Alex (North-East Scotland) (Con)
Matheson, Michael (Central Scotland) (SNP)
McIntosh, Mrs Lyndsay (Central Scotland) (Con)
McLetchie, David (Lothians) (Con)
Monteith, Mr Brian (Mid Scotland and Fife) (Con)
Mundell, David (South of Scotland) (Con)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Tosh, Mr Murray (South of Scotland) (Con)
Wallace, Ben (North-East Scotland) (Con)
Welsh, Mr Andrew (Angus) (SNP)
Young, John (West of Scotland) (Con)
Abstentions
Adam, Brian (North-East Scotland) (SNP)
Campbell, Colin (West of Scotland) (SNP)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Ewing, Dr Winnie (Highlands and Islands) (SNP)
Gibson, Mr Kenneth (Glasgow) (SNP)
Hyslop, Fiona (Lothians) (SNP)
Lochhead, Richard (North-East Scotland) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
MacDonald, Ms Margo (Lothians) (SNP)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
McGugan, Irene (North-East Scotland) (SNP)
Neil, Alex (Central Scotland) (SNP)
Paterson, Mr Gil (Central Scotland) (SNP)
Stevenson, Stewart (Banff and Buchan) (SNP)
Sturgeon, Nicola (Glasgow) (SNP)
Swinney, Mr John (North Tayside) (SNP)
Ullrich, Kay (West of Scotland) (SNP)
The result of the division is: For 72, Against 20, Abstentions 19.
Amendment 2 agreed to.
Amendment 3 moved—[Cathie Craigie].
The question is, that amendment 3 be agreed to. Are we agreed?
No.
There will be a division.
For
Aitken, Bill (Glasgow) (Con)
Baillie, Jackie (Dumbarton) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Canavan, Dennis (Falkirk West)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Davidson, Mr David (North-East Scotland) (Con)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Douglas-Hamilton, Lord James (Lothians) (Con)
Eadie, Helen (Dunfermline East) (Lab)
Elder, Dorothy-Grace (Glasgow) (SNP)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Fergusson, Alex (South of Scotland) (Con)
Finnie, Ross (West of Scotland) (LD)
Fitzpatrick, Brian (Strathkelvin and Bearsden) (Lab)
Gallie, Phil (South of Scotland) (Con)
Gillon, Karen (Clydesdale) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Goldie, Miss Annabel (West of Scotland) (Con)
Gorrie, Donald (Central Scotland) (LD)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (Edinburgh Pentlands) (Lab)
Harding, Mr Keith (Mid Scotland and Fife) (Con)
Harper, Robin (Lothians) (Green)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, Mr John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Jenkins, Ian (Tweeddale, Ettrick and Lauderdale) (LD)
Johnstone, Alex (North-East Scotland) (Con)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
MacKay, Angus (Edinburgh South) (Lab)
MacLean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
McAllion, Mr John (Dundee East) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
McIntosh, Mrs Lyndsay (Central Scotland) (Con)
McLeod, Fiona (West of Scotland) (SNP)
McLetchie, David (Lothians) (Con)
McMahon, Mr Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Monteith, Mr Brian (Mid Scotland and Fife) (Con)
Morgan, Alasdair (Galloway and Upper Nithsdale) (SNP)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Mundell, David (South of Scotland) (Con)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Radcliffe, Nora (Gordon) (LD)
Raffan, Mr Keith (Mid Scotland and Fife) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mr Mike (West Aberdeenshire and Kincardine) (LD)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Scott, Tavish (Shetland) (LD)
Sheridan, Tommy (Glasgow) (SSP)
Simpson, Dr Richard (Ochil) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North-East Fife) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Thomson, Elaine (Aberdeen North) (Lab)
Tosh, Mr Murray (South of Scotland) (Con)
Wallace, Ben (North-East Scotland) (Con)
Wallace, Mr Jim (Orkney) (LD)
Watson, Mike (Glasgow Cathcart) (Lab)
White, Ms Sandra (Glasgow) (SNP)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
Young, John (West of Scotland) (Con)
Against
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Matheson, Michael (Central Scotland) (SNP)
Welsh, Mr Andrew (Angus) (SNP)
Abstentions
Adam, Brian (North-East Scotland) (SNP)
Campbell, Colin (West of Scotland) (SNP)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Ewing, Dr Winnie (Highlands and Islands) (SNP)
Gibson, Mr Kenneth (Glasgow) (SNP)
Hyslop, Fiona (Lothians) (SNP)
Lochhead, Richard (North-East Scotland) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
MacDonald, Ms Margo (Lothians) (SNP)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
McGugan, Irene (North-East Scotland) (SNP)
Neil, Alex (Central Scotland) (SNP)
Paterson, Mr Gil (Central Scotland) (SNP)
Stevenson, Stewart (Banff and Buchan) (SNP)
Sturgeon, Nicola (Glasgow) (SNP)
Swinney, Mr John (North Tayside) (SNP)
Ullrich, Kay (West of Scotland) (SNP)
The result of the division is: For 90, Against 3, Abstentions 18.
Amendment 3 agreed to.
Amendment 4 moved—[Cathie Craigie]—and agreed to.
Amendment 5 moved—[Cathie Craigie].
The question is, that amendment 5 be agreed to. Are we agreed?
No.
There will be a division.
For
Aitken, Bill (Glasgow) (Con)
Baillie, Jackie (Dumbarton) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Brown, Robert (Glasgow) (LD)
Butler, Bill (Glasgow Anniesland) (Lab)
Canavan, Dennis (Falkirk West)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Davidson, Mr David (North-East Scotland) (Con)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Douglas-Hamilton, Lord James (Lothians) (Con)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Fergusson, Alex (South of Scotland) (Con)
Finnie, Ross (West of Scotland) (LD)
Fitzpatrick, Brian (Strathkelvin and Bearsden) (Lab)
Gallie, Phil (South of Scotland) (Con)
Gillon, Karen (Clydesdale) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Goldie, Miss Annabel (West of Scotland) (Con)
Gorrie, Donald (Central Scotland) (LD)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (Edinburgh Pentlands) (Lab)
Harding, Mr Keith (Mid Scotland and Fife) (Con)
Harper, Robin (Lothians) (Green)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, Mr John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Jenkins, Ian (Tweeddale, Ettrick and Lauderdale) (LD)
Johnstone, Alex (North-East Scotland) (Con)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
MacKay, Angus (Edinburgh South) (Lab)
MacLean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
McAllion, Mr John (Dundee East) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
McIntosh, Mrs Lyndsay (Central Scotland) (Con)
McLeod, Fiona (West of Scotland) (SNP)
McLetchie, David (Lothians) (Con)
McMahon, Mr Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Monteith, Mr Brian (Mid Scotland and Fife) (Con)
Morgan, Alasdair (Galloway and Upper Nithsdale) (SNP)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Mundell, David (South of Scotland) (Con)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Radcliffe, Nora (Gordon) (LD)
Raffan, Mr Keith (Mid Scotland and Fife) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Rumbles, Mr Mike (West Aberdeenshire and Kincardine) (LD)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Scott, Tavish (Shetland) (LD)
Sheridan, Tommy (Glasgow) (SSP)
Simpson, Dr Richard (Ochil) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Smith, Iain (North-East Fife) (LD)
Stephen, Nicol (Aberdeen South) (LD)
Thomson, Elaine (Aberdeen North) (Lab)
Tosh, Mr Murray (South of Scotland) (Con)
Wallace, Ben (North-East Scotland) (Con)
Wallace, Mr Jim (Orkney) (LD)
Watson, Mike (Glasgow Cathcart) (Lab)
White, Ms Sandra (Glasgow) (SNP)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
Young, John (West of Scotland) (Con)
Against
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Matheson, Michael (Central Scotland) (SNP)
Welsh, Mr Andrew (Angus) (SNP)
Abstentions
Adam, Brian (North-East Scotland) (SNP)
Campbell, Colin (West of Scotland) (SNP)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Elder, Dorothy-Grace (Glasgow) (SNP)
Ewing, Dr Winnie (Highlands and Islands) (SNP)
Gibson, Mr Kenneth (Glasgow) (SNP)
Hamilton, Mr Duncan (Highlands and Islands) (SNP)
Hyslop, Fiona (Lothians) (SNP)
Lochhead, Richard (North-East Scotland) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
MacDonald, Ms Margo (Lothians) (SNP)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
McGugan, Irene (North-East Scotland) (SNP)
Neil, Alex (Central Scotland) (SNP)
Paterson, Mr Gil (Central Scotland) (SNP)
Stevenson, Stewart (Banff and Buchan) (SNP)
Sturgeon, Nicola (Glasgow) (SNP)
Swinney, Mr John (North Tayside) (SNP)
Ullrich, Kay (West of Scotland) (SNP)
The result of the division is: For 90, Against 3, Abstentions 20.
Amendment 5 agreed to.
Section 2—Disposal of application
We move to the third group of amendments. Amendment 10 is grouped with amendment 11.
I want to remind members of the underlying purpose of the bill, as it is important to look to the objectives that we are trying to achieve. We are trying to put into law something that does not exist at the moment: a right for those who are threatened with eviction as a result of mortgage arrears to put their concerns to the court, and to allow the court discretion, under certain circumstances, to refuse or continue the repossession arrangements.
Accordingly, the social objective of the bill is to reduce the number of people who become unnecessarily homeless. With amendments 10 and 11, I am trying to reflect in the bill the implications of the evidence that we heard, particularly from the Edinburgh in-court advice project, at stage 1. Liz Cameron, on behalf of that project, gave the committee compelling evidence. She was asked about the intervention that was offered by her project in cases of rent evictions. Such situations are similar to mortgage evictions to an extent, but they will differ among different courts. In the case of rent evictions, the court has power to continue or refuse evictions.
Liz Cameron indicated that, in the short term, her project helped people to present their case to the sheriff in such a way as to make it more likely that they would be able to stay in their houses and make regular payments over a period. I asked her what her percentage success rate was in that regard, and she replied:
"this is a gut feeling: I would say that it is about 90 per cent. Some people come to us for what I would call long-term help and work with us for a while. We have figures from the CAB, which tends to work with people long term, and there has not been a single eviction among the 700 cases that it has dealt with."—[Official Report, Social Inclusion, Housing and Voluntary Sector Committee, 20 September 2000; c 1398.]
That applies to the separate category of rent evictions, but I think that the same principle applies, and is borne out by evidence relating to the similar provisions under the English legislation—a similarly high success rate has been shown to be possible in England.
The essence is to get people to do something about their problems. They may be in unemployment or have fallen on hard times; they may have fallen ill; they may have been away from home; there may be some domestic difficulty. Whatever the background reason, the point is to get people to deal with it. People often develop an ostrich syndrome, and do not deal with their problem. If we can get people to court or get them to do something about their problems, advice is available on tap to help them, through the Edinburgh in-court advice project, the equivalent Glasgow project—and through other courts—and various other ways.
The key is legal and financial advice to enable people to get their affairs on to a long-term basis. The implication of the evidence that the committee heard is that, if the proper advice is available, in the majority—even the vast majority—of cases, people can get things back on track, resume their payments and hold on to their house. The social and personal cost of people being put out of their houses is done away with.
In amendment 10, I am trying to include in the bill a specific power for the court to use, when it comes to consider applications, to continue proceedings in order to enable the debtor to obtain legal or financial advice. There is a more limited power for continuation, which applies in only some instances. Amendment 10 seeks specifically to broaden the right to continue proceedings and to direct the court's attention to the significance of legal or financial advice. I hope that the chamber will be prepared to take on board that important provision.
In the interim—during a continuation of proceedings lasting a month, six weeks or whatever—the court would have the power to impose conditions, to ensure that the position did not deteriorate. If the court thought it appropriate, people would have to continue to make payments or to do something to ensure that things kept ticking over.
Amendment 11 is similar in nature. I draw members' attention to section 2(2)(b), which gives guidance to the court on the circumstances in which it should consider making orders to refuse repossessions or to continue a case. The court is to have regard to
"the applicant's ability to fulfil within a reasonable period the obligations under the standard security in respect of which the debtor is in default".
Imagine a situation in which a wife has been left with a house after her husband has gone off. She may be able, with the assistance of the Department of Social Security, to pay the interest on the mortgage, but not to pay off the capital. Under section 2(2)(b), she would have to catch up on the full payments, capital and interest, before the court could approve the application. My modest amendment attempts to soften that provision. It recognises that, where a debtor's spouse cannot make full payments, it may be equitable for them to make partial payments, without prejudicing the creditor, because of the equity that is in the house. I proposed such an amendment at stage 2, but unfortunately I was unable to persuade Cathie Craigie to take it on board.
Neither amendment 10 or amendment 11 opposes the main thrust of the bill. They are modest additions that would improve the bill's success rate and assist in meeting the social objectives that Cathie Craigie and all members seek to achieve.
I move amendment 10.
I am delighted to support both the amendments in the name of Robert Brown. The intention of the bill is to prevent people becoming homeless as a result of falling into arrears with their payments. When individuals start to fail to make payments, they often find it difficult to dig themselves out of the hole that they have created. They ignore letters from the lender. Only when the situation has become critical do they start to consider whether they can retrieve it.
The provisions that Robert Brown described would help individuals to deal with their problems. It takes a little time to resolve such situations. Amendment 10 is worth while because it will help to maximise the number of people who benefit from the bill. The same applies to amendment 11. The fact that someone is not able immediately to repay the capital as well as the interest on their mortgage should not preclude the sheriff from agreeing to a revised arrangement. I hope that on this occasion Cathie Craigie and the Executive will agree to support the amendments, which will not destroy the bill but strengthen it. The object of the exercise is to minimise the number of people who become homeless.
When people are in a hole, sometimes the most merciful thing to do is to persuade them to stop digging. There is a danger that amendments 10 and 11 will prevent that happening.
As Robert Brown said, people may find themselves in the position of having their homes recovered by the heritable creditor for two reasons: irresponsibility or misfortune. Through such means as personal health insurance, people may reduce the impact on their ability to pay their mortgage of illness that prevents them from working and earning.
Neither amendment 10 nor amendment 11 is likely to have much impact on those who fall into the category of financial mismanagement. We are not talking about a substantial number of cases. Indeed, it is clear from the evidence that the committee took that the conventional mortgage providers bend over backwards to prevent repossession.
Amendments 10 and 11 fail to recognise the fact that, by the time individuals are at the door of the sheriff court, practically everything possible has been done to persuade the mortgage lender not to repossess and every possible effort has been made to come to an accommodation.
I do not consider that there are merits in amendments 10 and 11, although I recognise the good intentions therein. The amendments add nothing to the bill, and we shall vote against them.
Amendments 10 and 11 have different effects, so I will deal with each in turn.
We discussed the proposals in amendment 10 at stage 2. The amendment proposes that the court should take account of whether the debtor has had the opportunity to obtain legal or financial advice before the court hearing, and allows the court to consider whether the court process should be continued until the debtor obtains that advice.
I understand Robert Brown's thinking behind amendment 10, and I fully support the principle that, through the bill, we should make every effort to encourage the debtor to secure legal and debt advice. Such efforts should help those who may be in a panic about their situation to find out about their rights and to get support from people who are experienced in dealing with similar situations. Robert Brown and I agree that securing legal and debt advice at an early stage is crucial and should help people in that vulnerable group to find a way through their mortgage difficulties and, ultimately, to get back on their feet.
However, I believe that the bill provides for such efforts to be made, as it points debtors to the information and advice that they require. In addition, I am clear that the rules of court already provide for the proposal that Robert Brown makes in amendment 10. The bill encourages the debtor and occupiers who receive a notice to seek advice on debt management, and points them to the citizens advice bureau and other advice agencies. Members will recall that the bill was amended during stage 2 to include a secondary power for Scottish ministers to amend the notes and forms in the bill by order, primarily to include the telephone number of the national debt line when that service becomes available. Other debt advice agencies could be included in those notes and forms as time goes on. Those provisions should encourage debtors to act earlier and to secure advice on their debts when they have time to make a difference.
It is important that our emphasis is on signposting and encouraging people to seek advice at an earlier stage, as early advice can make a real difference to the debtor and their family by helping them get the situation under control before the debt starts to get out of hand. However, when, for some reason, the debtor did not manage to secure legal or financial advice at an early stage, the court is able, under the rules of court, to continue the proceedings to allow the debtor to obtain legal or financial advice. Current practice is for the court to make that decision, and I am clear that amendment 10 would not result in a difference from that practice.
We must avoid the situation in which some debtors use that procedure simply to buy more time. For example, a debtor may state to the court that they have been unable to obtain advice, simply in order to drag out the proceedings. It is not in the interests of the debtor to keep the situation going on and on—there must be a time to draw the line.
The bill offers sufficient flexibility for the court to ensure that the debtor obtains financial or legal advice—that is the crux of the matter. The bill does not require the provision that is suggested in amendment 10, and I encourage Robert Brown to withdraw that amendment.
I will move on to amendment 11, as I understand that we must watch the clock this afternoon. I fully understand the sentiments behind amendment 11, which would make primarily a drafting change that would have no real effect on the bill's provisions. When the court examines an "applicant's ability" to fulfil his or her obligations, it will, in effect, be considering the
"extent to which the applicant may be able"
to fulfil those obligations. I believe that the intended effect of amendment 11 is already fully contained in the bill, so I ask Robert Brown not to move amendment 11.
Before I comment directly on amendments 10 and 11, I wish to say that I am well aware of Robert Brown's commitment to ensuring that advice and information is provided for all people. I recognise the many efforts that he has made to ensure that such rights are maximised, and any comments that I make about the impact that his amendments would have in no way undermine his attempts in that field. Our only debate is about how the aim should be achieved.
The committee process, which has substantially influenced Robert Brown's thinking, has been significant in shaping the bill. The evidence from other aspects of the committee's work has led to informed discussion at various levels. I thank Robert Brown, the groups who gave evidence and the others who have contributed much to our thinking on the issue. We looked at the evidence and paid great attention to the details. Again, the debate is about how it is done and the impact that it would have.
As Cathie Craigie said, the proposals in amendment 10 were discussed in some depth at stage 2. Cathie Craigie has outlined how the bill's provisions complement the court's ability to continue cases under the rules of court. In introducing the bill, we need to think of the balance that needs to be struck. We must also bear in mind the interests of lenders as well as debtors. If we do not do that, there may be untold impacts that none of us would want.
The normal expectation must be that debtors should obtain legal or financial advice in the two-month period that is available for applications to be made. If, for instance, their circumstances change, debtors must also have some time to seek further advice before the case goes to court. It would be inappropriate if debtors were simply to sit on their hands. I recognise that only a small minority would do that, but nonetheless we cannot encourage debtors to expect the courts automatically to grant a stay of execution simply to allow debtors to get further advice.
Of course, there are genuine reasons why it has often not been possible for debtors to seek advice during the two-month period. However, as Cathie Craigie explained, the courts already have the power to sist proceedings while advice is being obtained. The key to getting advice that can make a difference is to get it early. We must encourage people to get advice early. To allow debtors to delay seeking advice would not create the impact that Robert Brown is seeking. As has been outlined, a number of efforts have been made in the bill's notices to ensure that debtors are assisted in obtaining advice at the earliest opportunity. We think that amendment 10 could have an impact that is the opposite of what is intended.
Amendment 11 would bring about a drafting change that would have no real effect. However, the underlying debate is important, because we have given an undertaking to provide the Judicial Studies Committee with a statement on the purposes of the bill and the Official Report of the bill's stages. That will assist the Judicial Studies committee in preparing the guidance and training for sheriffs on the bill's provisions. As Cathie Craigie noted, it is important that the courts could, where the circumstances warranted it, allow the debtor to pay the interest only for a period. That should be for only a relatively short period. Again, the debate goes back to the need to balance the interests of lenders and debtors. I do not see the purpose in amendment 11 and agree with Cathie Craigie that Robert Brown should not move it.
I have received further late requests to speak. For reasons of time, I shall not take them. If members want to speak, they should do so before the minister gets up.
I am grateful to colleagues for the quality of the debate on the issue. I am also grateful for what the minister said about advice, which is an issue that was well thrashed out during the stage 1 and stage 2 debates. That issue lies behind today's debate.
I will make some brief comments in reply. Margaret Curran said, rightly, that it was a question of striking the balance. That is the theme that goes throughout the issue. However, perhaps I should have made the point earlier that amendments 10 and 11 are not the same as the amendments that I lodged at stage 2. The amendments have been changed slightly and put into a different format. Amendment 10 would provide the court with a power to continue the proceedings so that advice could be obtained. The court would not be obliged to consider whether to continue the proceedings. That is a change to the previous arrangement.
It is important to get advice early. One or two members have made the point that people should not put their heads in the sand. The problem is that people do, indeed, stick their heads in the sand and get into situations that they would not get into in an ideal world. To pick up on Bill Aitken's point, perhaps people do not take out insurance when they ought to. We have to deal with the consequences of decisions that may be silly, unfortunate or financially incautious, but which are nevertheless understandable in the situations that frequently recur. I do not accept the absolute distinction that Bill Aitken made between irresponsibility and misfortune. There is a gradation in such things; there are many shades of grey, rather than the black-and-white distinction that Bill Aitken suggests. People are under financial pressure—sometimes as a result of being encouraged, when perhaps they should not have been, by the Government to buy houses. Perhaps Mr Aitken should bear that in mind when he comments on such matters.
I will press amendments 10 and 11. Amendment 10 is about advice and it goes beyond the issue of the powers that exist at the moment to draw the attention of the sheriff and solicitors to that important issue. I cannot believe that a continuation of two or three weeks for legal, financial or housing advice will make a great difference when there will already have been a two-month call-up; four, six or eight weeks to get the case to court; and a period of arrears before that. An extra two or three weeks is relatively trivial in the overall scheme of things.
I do not accept that amendment 11 does not make a real change to the wording, although I am reassured by the minister's comments on the intentions of the bill, which I am sure that sheriffs will take account of. I would prefer the bill to be worded in the way that I have suggested. I hope that the chamber will accept amendment 11 as well as amendment 10.
The question is, that amendment 10 be agreed to. Are we agreed?
No.
There will be a division.
For
Adam, Brian (North-East Scotland) (SNP)
Brown, Robert (Glasgow) (LD)
Campbell, Colin (West of Scotland) (SNP)
Canavan, Dennis (Falkirk West)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Elder, Dorothy-Grace (Glasgow) (SNP)
Ewing, Dr Winnie (Highlands and Islands) (SNP)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Ewing, Mrs Margaret (Moray) (SNP)
Gibson, Mr Kenneth (Glasgow) (SNP)
Gorrie, Donald (Central Scotland) (LD)
Grahame, Christine (South of Scotland) (SNP)
Hamilton, Mr Duncan (Highlands and Islands) (SNP)
Harper, Robin (Lothians) (Green)
Hyslop, Fiona (Lothians) (SNP)
Jenkins, Ian (Tweeddale, Ettrick and Lauderdale) (LD)
Lochhead, Richard (North-East Scotland) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
MacDonald, Ms Margo (Lothians) (SNP)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Matheson, Michael (Central Scotland) (SNP)
McGugan, Irene (North-East Scotland) (SNP)
McLeod, Fiona (West of Scotland) (SNP)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Neil, Alex (Central Scotland) (SNP)
Paterson, Mr Gil (Central Scotland) (SNP)
Quinan, Mr Lloyd (West of Scotland) (SNP)
Radcliffe, Nora (Gordon) (LD)
Raffan, Mr Keith (Mid Scotland and Fife) (LD)
Rumbles, Mr Mike (West Aberdeenshire and Kincardine) (LD)
Russell, Michael (South of Scotland) (SNP)
Scott, Tavish (Shetland) (LD)
Sheridan, Tommy (Glasgow) (SSP)
Smith, Iain (North-East Fife) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Sturgeon, Nicola (Glasgow) (SNP)
Swinney, Mr John (North Tayside) (SNP)
Ullrich, Kay (West of Scotland) (SNP)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)
Against
Aitken, Bill (Glasgow) (Con)
Baillie, Jackie (Dumbarton) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Butler, Bill (Glasgow Anniesland) (Lab)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Davidson, Mr David (North-East Scotland) (Con)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Douglas-Hamilton, Lord James (Lothians) (Con)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Fitzpatrick, Brian (Strathkelvin and Bearsden) (Lab)
Gallie, Phil (South of Scotland) (Con)
Gillon, Karen (Clydesdale) (Lab)
Goldie, Miss Annabel (West of Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (Edinburgh Pentlands) (Lab)
Harding, Mr Keith (Mid Scotland and Fife) (Con)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, Mr John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Johnstone, Alex (North-East Scotland) (Con)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
MacKay, Angus (Edinburgh South) (Lab)
MacLean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
McAllion, Mr John (Dundee East) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
McIntosh, Mrs Lyndsay (Central Scotland) (Con)
McLetchie, David (Lothians) (Con)
McMahon, Mr Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Monteith, Mr Brian (Mid Scotland and Fife) (Con)
Morgan, Alasdair (Galloway and Upper Nithsdale) (SNP)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Simpson, Dr Richard (Ochil) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Stephen, Nicol (Aberdeen South) (LD)
Thomson, Elaine (Aberdeen North) (Lab)
Tosh, Mr Murray (South of Scotland) (Con)
Wallace, Ben (North-East Scotland) (Con)
Wallace, Mr Jim (Orkney) (LD)
Watson, Mike (Glasgow Cathcart) (Lab)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
Young, John (West of Scotland) (Con)
The result of the division is: For 41, Against 73, Abstentions 0.
Amendment 10 disagreed to.
Amendment 11 moved—[Robert Brown].
The question is, that amendment 11 be agreed to. Are we agreed?
No.
There will be a division.
For
Adam, Brian (North-East Scotland) (SNP)
Brown, Robert (Glasgow) (LD)
Campbell, Colin (West of Scotland) (SNP)
Canavan, Dennis (Falkirk West)
Crawford, Bruce (Mid Scotland and Fife) (SNP)
Cunningham, Roseanna (Perth) (SNP)
Elder, Dorothy-Grace (Glasgow) (SNP)
Ewing, Dr Winnie (Highlands and Islands) (SNP)
Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Ewing, Mrs Margaret (Moray) (SNP)
Gorrie, Donald (Central Scotland) (LD)
Grahame, Christine (South of Scotland) (SNP)
Hamilton, Mr Duncan (Highlands and Islands) (SNP)
Harper, Robin (Lothians) (Green)
Hyslop, Fiona (Lothians) (SNP)
Jenkins, Ian (Tweeddale, Ettrick and Lauderdale) (LD)
Lochhead, Richard (North-East Scotland) (SNP)
MacAskill, Mr Kenny (Lothians) (SNP)
MacDonald, Ms Margo (Lothians) (SNP)
Marwick, Tricia (Mid Scotland and Fife) (SNP)
Matheson, Michael (Central Scotland) (SNP)
McGugan, Irene (North-East Scotland) (SNP)
McLeod, Fiona (West of Scotland) (SNP)
Munro, John Farquhar (Ross, Skye and Inverness West) (LD)
Neil, Alex (Central Scotland) (SNP)
Paterson, Mr Gil (Central Scotland) (SNP)
Quinan, Mr Lloyd (West of Scotland) (SNP)
Raffan, Mr Keith (Mid Scotland and Fife) (LD)
Rumbles, Mr Mike (West Aberdeenshire and Kincardine) (LD)
Russell, Michael (South of Scotland) (SNP)
Sheridan, Tommy (Glasgow) (SSP)
Smith, Iain (North-East Fife) (LD)
Stevenson, Stewart (Banff and Buchan) (SNP)
Sturgeon, Nicola (Glasgow) (SNP)
Swinney, Mr John (North Tayside) (SNP)
Ullrich, Kay (West of Scotland) (SNP)
Welsh, Mr Andrew (Angus) (SNP)
White, Ms Sandra (Glasgow) (SNP)
Against
Aitken, Bill (Glasgow) (Con)
Baillie, Jackie (Dumbarton) (Lab)
Barrie, Scott (Dunfermline West) (Lab)
Boyack, Sarah (Edinburgh Central) (Lab)
Butler, Bill (Glasgow Anniesland) (Lab)
Chisholm, Malcolm (Edinburgh North and Leith) (Lab)
Craigie, Cathie (Cumbernauld and Kilsyth) (Lab)
Curran, Ms Margaret (Glasgow Baillieston) (Lab)
Davidson, Mr David (North-East Scotland) (Con)
Deacon, Susan (Edinburgh East and Musselburgh) (Lab)
Douglas-Hamilton, Lord James (Lothians) (Con)
Eadie, Helen (Dunfermline East) (Lab)
Ferguson, Patricia (Glasgow Maryhill) (Lab)
Finnie, Ross (West of Scotland) (LD)
Fitzpatrick, Brian (Strathkelvin and Bearsden) (Lab)
Gallie, Phil (South of Scotland) (Con)
Gibson, Mr Kenneth (Glasgow) (SNP)
Gillon, Karen (Clydesdale) (Lab)
Godman, Trish (West Renfrewshire) (Lab)
Goldie, Miss Annabel (West of Scotland) (Con)
Grant, Rhoda (Highlands and Islands) (Lab)
Gray, Iain (Edinburgh Pentlands) (Lab)
Harding, Mr Keith (Mid Scotland and Fife) (Con)
Henry, Hugh (Paisley South) (Lab)
Home Robertson, Mr John (East Lothian) (Lab)
Hughes, Janis (Glasgow Rutherglen) (Lab)
Jackson, Dr Sylvia (Stirling) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
Jamieson, Cathy (Carrick, Cumnock and Doon Valley) (Lab)
Jamieson, Margaret (Kilmarnock and Loudoun) (Lab)
Johnstone, Alex (North-East Scotland) (Con)
Kerr, Mr Andy (East Kilbride) (Lab)
Lamont, Johann (Glasgow Pollok) (Lab)
Livingstone, Marilyn (Kirkcaldy) (Lab)
Lyon, George (Argyll and Bute) (LD)
Macdonald, Lewis (Aberdeen Central) (Lab)
Macintosh, Mr Kenneth (Eastwood) (Lab)
MacKay, Angus (Edinburgh South) (Lab)
MacLean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
McAllion, Mr John (Dundee East) (Lab)
McAveety, Mr Frank (Glasgow Shettleston) (Lab)
McCabe, Mr Tom (Hamilton South) (Lab)
McConnell, Mr Jack (Motherwell and Wishaw) (Lab)
McGrigor, Mr Jamie (Highlands and Islands) (Con)
McIntosh, Mrs Lyndsay (Central Scotland) (Con)
McLetchie, David (Lothians) (Con)
McMahon, Mr Michael (Hamilton North and Bellshill) (Lab)
McNeil, Mr Duncan (Greenock and Inverclyde) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
McNulty, Des (Clydebank and Milngavie) (Lab)
Monteith, Mr Brian (Mid Scotland and Fife) (Con)
Morgan, Alasdair (Galloway and Upper Nithsdale) (SNP)
Morrison, Mr Alasdair (Western Isles) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Mulligan, Mrs Mary (Linlithgow) (Lab)
Murray, Dr Elaine (Dumfries) (Lab)
Oldfather, Irene (Cunninghame South) (Lab)
Peacock, Peter (Highlands and Islands) (Lab)
Peattie, Cathy (Falkirk East) (Lab)
Radcliffe, Nora (Gordon) (LD)
Robson, Euan (Roxburgh and Berwickshire) (LD)
Scanlon, Mary (Highlands and Islands) (Con)
Scott, John (Ayr) (Con)
Scott, Tavish (Shetland) (LD)
Simpson, Dr Richard (Ochil) (Lab)
Smith, Elaine (Coatbridge and Chryston) (Lab)
Stephen, Nicol (Aberdeen South) (LD)
Thomson, Elaine (Aberdeen North) (Lab)
Tosh, Mr Murray (South of Scotland) (Con)
Wallace, Ben (North-East Scotland) (Con)
Wallace, Mr Jim (Orkney) (LD)
Watson, Mike (Glasgow Cathcart) (Lab)
Whitefield, Karen (Airdrie and Shotts) (Lab)
Wilson, Allan (Cunninghame North) (Lab)
Young, John (West of Scotland) (Con)
The result of the division is: For 38, Against 77, Abstentions 0.
Amendment 11 disagreed to.
After section 2
Amendment 6 is in a group on its own.
Amendment 6 seeks to make a technical change to the bill for a good reason. The Keeper of the Registers of Scotland raised a concern that there was a small risk of a sale by a creditor, either accidentally or fraudulently, while a section 2 order was in force, resulting in a claim on the keeper's indemnity. The keeper's indemnity is a kind of compensation system. Broadly speaking, compensation sometimes is paid out when the keeper has to change the register because it is inaccurate.
An example of exceptional circumstances leading to an accidental sale when a section 2 order was in force would be a breakdown in communication within a lending organisation. By accident, the repossession arm of a lender might believe that it has the legal right to sell a property on which the lender had sought an order for possession because the litigation section had not notified the repossession section that the court had granted an order under section 2.
That property could be included in a group of properties to be sold at auction by the lender, and the debtor, who would be the existing borrower, would be unaware of the intended sale. The lender would finalise the details of the sale, and because the keeper would be unaware that a section 2 order was in force, as it would not be recorded, the title would be registered in the name of the person who purchased the property at auction. In such circumstances, a claim could be made against the keeper's indemnity if efforts to unravel the mess failed.
In addition, not all creditors that lend on properties are high street banks and building societies. The Keeper of the Registers of Scotland was concerned that there was scope for two parties to engineer the situation and make a fraudulent claim for compensation. Clearly, we have to prevent that.
Amendment 6 seeks to avoid the risk of a fraudulent or accidental sale that impacts on the keeper's indemnity by ensuring that a copy of the section 2 order—and a notice—is sent to the keeper by the clerk of the court for recording in the Register of Inhibitions and Adjudications. A search of that register is always done on behalf of a prospective purchaser before settling the purchase and by the keeper as part of the registration process, to ensure that there is no restriction on the seller's right to sell.
Amendment 6 also gives Scottish ministers powers to prescribe the form of notice that is to be sent with a section 2 order. I envisage that notice detailing the parties in the repossession action and the original standard security, a summary of the decision taken by the court and a description of the property sufficient to allow anyone searching the register to identify the property under restriction.
The content of the notice will have to be discussed with the Keeper of the Registers and the Scottish Court Service in more detail before the provisions in my bill are brought into force. Prescribing the notice by statutory instrument will give ministers the flexibility to change the format of the notice and the information in it over time if required.
I am sure that members will agree that amendment 6 is beneficial and I ask them to support it.
I move amendment 6.
The Council of Mortgage Lenders also raised concerns about section 2, and was particularly concerned that the provisions within it may be underfunded. I do not know if I agree with that view, but I do not doubt that the matter will be reviewed. I am sure that the Executive will monitor it carefully. I am pleased that an item on the budget line will deal with it. In that case, I am happy to support amendment 6.
We agree with the points that Cathie Craigie made and fully support amendment 6. As Cathie said, the amendment will make a technical adjustment. I was told that any time that I used the word "technical" in debate on the Housing (Scotland) Bill, it had a tendency to encourage sleep. I hope that that will not happen today. Cathie Craigie and the Executive sought to ensure that the change did not result in costs for the lender or the debtor in repossession actions.
In considering the possible solutions that the keeper proposed, several alternatives were considered. Placing the burden on the debtor to register an order—the first alternative that was considered—was unacceptable because of the registration cost that that would present to someone who was experiencing financial difficulties.
Requiring the lender to register the order was another solution that was explored. Cathie Craigie consulted the CML on that and took on board its concern that that would add unnecessarily to the paperwork and procedures that were required in possession cases simply to preclude a very small risk.
We have some sympathy with that concern and believe that placing a requirement on the clerk of court to send a copy of the section 2 order for registration along with a notice is the most sensible option. Such a procedure is not without precedent, as the clerk undertakes a similar role in relation to bankruptcy proceedings.
Amendment 6 agreed to.
Schedule
Notices to debtors, proprietors and occupiers
Amendments 7 to 9 moved—[Cathie Craigie]—and agreed to.