HL Deb 16 October 1985 vol 467 cc656-8

25 Clause 14. page 14, line 30, after 'of', insert ', or by virtue of paragraph 11 of Schedule 4 to, this Act of'.

26 Page 14, line 34, leave out '5 years from', and insert 'the period of 3 years beginning with'.

27 Page 14, line 36, leave out '5' and insert '3',

29 Page 14, line 43, leave out '5' and insert '3'.

74 Clause 30, page 30, line 23, leave out', wherever situated'.

78 Page 31, line 24, leave out subsection (7).

79 Page 31, line 39, leave out from first 'the' to second 'the' in line 41 and insert— ' "whole estate of the debtor" means his whole estate at the date of sequestration, wherever situated, including—

  1. (a) any income or estate vesting in the debtor on that date; and
  2. (b)'.

80 Page 31, line 42, leave out 'the estate' and insert 'any property'.

81 Page 31, line 44, after 'at', insert ', or on,'.

86 Clause 31, page 33, line 14, leave out from 'dealing' to 'is' in line 16.

87 Clause 32, page 33, line 39, leave out 'other than property mentioned in section 30(7) of this Act'.

89 Clause 33, page 35, line 10, after 'alienation', insert '(i)'.

90 Page 35, line 11, after 'gift', insert '; or

  1. (ii) was a gift made, for a charitable purpose, to a person who is not an associate of the debtor,"

91 Page 35, line 15, at end insert— '(4A) In subsection (4) above, "charitable purpose" means any charitable, benevolent or philanthropic purpose whether or not it is charitable within the meaning of any rule of law.'.

99 Clause 36, page 38, line 15, leave out subsection (2).

100 Page 38, line 24, after 'any', insert 'relevant'.

101 Page 38, line 24, leave out from 'challenge' to 'shall' in line 26.

102 Page 38, line 32, at end insert— '(3A) In subsection (3) above, "any relevant right of challenge" means any right to challenge a deed voluntarily granted by the debtor if it is a right which vested in the inhibitor by virtue of the inhibition.'.

104 Clause 38, page 40, line 34, leave out 'subsections (6) and (7), and insert 'subsection (6)'.

108 Page 42, line 1, leave out subsection (7).

115 Clause 48, page 50, line 20, leave out 'or a spouse's right to property vesting in the permanent trustee by virtue of section 30(7) of this Act'.

165 Clause 69, page 67, line 43, at end insert— '(5A) The apparent insolvency of a debtor may be constituted for the purposes of this Act notwithstanding that the circumstance founded upon to constitute the apparent insolvency occurred on a date before the coming into force of section 7 of this Act; and, for those purposes, the apparent insolvency shall be deemed to have been constituted on that date: Provided that apparent insolvency shall be constituted by virtue of this subsection only on grounds which would have constituted notour bankruptcy under the Bankruptcy (Scotland) Act 1913. (5B) Where a debtor whose estate is sequestrated after the commencement of this subsection is liable, by virtue of a transaction entered into before that date, to pay royalites or a share of the profits to any person in respect of any copyright or interest in copyright comprised in the sequestrated estate, section 102 of the Bankruptcy (Scotland) Act 1913 (trustee's powers in relation to copyright) shall apply in relation to the permanent trustee as it applied before its repeal in relation to a trustee in bankruptcy under the said Act of 1913. (5C) Where sequestration of a debtor's estate is awarded under this Act a person shall not be guilty of an offence under any provision of this Act in respect of anything done before the date of commencement of that provision but, notwithstanding the repeal by this Act of the Bankruptcy (Scotland) Act 1913, he shall be guilty of an offence under that Act in respect of anything done before that date which would have been an offence under that Act if the award of sequestration had been made under that Act.'.

Lord Cameron of Lochbroom

My Lords, I beg to move that this House do agree with the Commons in their Amendments Nos. 25 to 27 en bloc, and at the same time, for the convenience of the House, to speak to Amendments Nos. 29, 74, 78 to 81, 86, 87, 89 to 91, 99 to 102, 104, 108, 115 and 165.

All the amendments in this group are concerned with the extent to which the debtor's estate vests in the permanent trustee and the effect which sequestration has upon other diligences.

In view of the highly technical nature of some of these amendments, I should not wish to detain your Lordships with anything more than a brief explanation of them, although, if any of you wish, I am prepared to go into more detail. However, one of the more significant changes in this group is the deletion of Clause 30(7) by Amendment No. 78, with consequential amendments, 87 and 115. These amendments remove what, on reflection, were unfair provisions in the Bill, whereby any inmixed funds of a debtor and his spouse vested in the permanent trustee, even although most of them might in fact belong to the debtor's spouse, and the debtor's spouse then ranked only as a postponed creditor. The amendments delete these provisions. If there are any inmixed funds, this will mean that they will only vest in the permanent trustee to the extent that they belonged to the debtor and this will be primarily a matter of fact.

Amendments 89 to 91 have the effect of exempting gifts made for charitable purposes from being challenged as a gratuitous alienation. The purpose of this is both to allow charities to be confident that donations received by them will not be reduced and to save the permanent trustee the difficulties associated with seeking the reduction of such alienations. In this regard I should draw your Lordships' attention to the two major safeguards against abuse of the provision. First, the exemption will not be available in respect of gifts made to an associate of the debtor, and, secondly, they will have to be gifts which it was reasonable for the debtor to make in all the circumstances.

Amendments Nos. 99 to 102 make a number of highly technical amendments relating to the effect of sequestration upon diligence. I should just say that the Government are grateful to both the Law Society of Scotland and to Mr. George Gretton of Edinburgh University for their expert advice on these points. My Lords, I beg to move.

Moved, That this House do agree with the Commons in the said amendments.—(Lord Cameron of Lochbroom.)

On Question, Motion agreed to.