HL Deb 05 February 1987 vol 484 cc360-81

5.27 p.m.

House again in Committee.

Clause 16 [Articles exempt from poinding]:

Lord Morton of Shuna moved Amendment No. 36: Page 13, line 39, leave out ("£500") and insert ("£1,000").

The noble Lord said: I beg to move this amendment, which is designed to increase the value of the protected tools of the trade of the debtor from a figure of £500 as shown in the Bill to a figure of £1,000. It is obviously essential that the debtor should have protection of equipment by which he can earn money. I suggest, and I have the support of the Scottish Consumer Council, that the figure of £500 is too low. Many tradesmen have tools which have a value higher than that which is required for their work. One thinks of plumbers, electricians and certain others who will have a considerable number of tools which they need. If the tools are sold, that adds to the burden.

It has also been suggested to me that some people carrying on businesses using computer hardware would be particularly hard hit if the level of £500 were to be left in the Bill. I think the purpose of the provision is entirely clear and that there is no dispute in the Committee that there should be this sort of protection. All I suggest is that the level at the moment is too low. I beg to move.

Lord Cameron of Lochbroom

This limit was recommended by the Scottish Law Commission following comments on their Consultative Memorandum No. 48 published in October 1980. I think the noble Lord opposite will know that that memorandum proposed a limit of £250. I accept that that was in 1980. Nevertheless, the report put forward the figure of £500. I believe that report was published in 1985. I may say that similar monetary limits are found in the clause dealing with educational material and also in paragraph I of Schedule 5 dealing with summary warrant poindings.

In considering the commission's recommendations, which, as I have said, were based on wide consultation, the Government agreed that the Bill should contain a monetary limit and that the figure suggested by the commission was the right level. This is on the basis that this exemption is considered to be mainly intended for debtors of modest income whose tools of trade are of relatively small value.

The setting of any monetary limit must, as your Lordships will appreciate, contain a certain arbitrary element, and it is right that the monetary limit should reflect current circumstances and requirements. That is the reason why the Bill confers power on the Lord Advocate to vary the amount by regulations. The existence of that power will enable the Lord Advocate to keep the situation under review and to act if it becomes apparent that the monetary limit requires to be changed to reflect different circumstances. If the amendment were accepted there would be a curious result. The exemption in ordinary poindings would have a limit of £1,000 on aggregate value while the exemption for summary warrant poindings would remain at £500.

With that explanation I hope that the noble Lord will reconsider the matter and withdraw the amendment. I cannot recommend it to the Committee.

5.30 p.m.

Lord Morton of Shuna

I was fully aware that if this amendment were accepted, it would be necessary to amend Schedule 5 also. The limit in Clause 16(1)(d) for educational requirements, if I may put it that way, is a rather different figure and possibly £500 for educational requirements is reasonable; but for tools of the trade I suggest that this figure is too low. However, it is not a matter on which I wish to divide the Committee. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Morton of Shuna moved Amendment No. 37:

Page 14, line 8, at end insert— ("(g) all articles in a house, caravan, houseboat or other structure which is the only or principal residence of the debtor.")

The noble Lord said: With this amendment perhaps I may speak also to Amendment No. 38, and on this occasion I have managed to put forward an amendment to deal with Schedule 5 at the same time.

This amendment deals with a matter about which I spoke at Second Reading. It excludes household articles totally so that a person's household goods would not be subject to the warrant sale procedure. At paragraph 2.64 of the Scottish Law Commission's report it is made quite clear that inability to pay, rather than mere unwillingness to pay, is the reason for this difficulty. The report refers to various surveys. The official one, if I may refer to the census return in that way, says that, While 5% of men in Scotland were unemployed and actively seeking work, among debtors interviewed the proportion unemployed and actively seeking work was as high as 20%.

These figures are from back in time. The number of men in Scotland unemployed and actively seeking work now is rather higher than 5 per cent. The report continues: only 45% of debtors interviewed were in full-time employment at the time court action started. It was also found that 41% of debtors were living in households where the main source of income was likely to be state benefits since neither they nor their spouses (if any) were in employment. Nearly half the debtors who were unemployed or temporarily sick had been out of work or away from work for at least six months and over three-quarters for over three months. A clear picture emerged of debtors and their spouses as people on low incomes: over a third of debtors had a weekly income of not more than £30,"—

these are, of course, 1978 figures— well below the national average. Ability to pay is clearly also affected by factors such as household size, the number of dependent children. and so on. So it is quite clear—and with rising unemployment since then the position must have become worse—that in general the vast majority of warrant sales involve very deprived and destitute people. It is wholly wrong that this range of people should have their household goods subjected to the procedure of a warrant sale. I welcome, as I welcomed at an earlier stage, the fact that the Bill abolishes the disastrous and demeaning habit of the sales taking place in the debtor's house. So far, so good, But these debtors tend to be at the very lowest end of income and if a sale of their household goods takes place they are not able to retrieve the situation.

It might be suggested that there will be the occasional wealthy person who has goods of considerable value in his house. When somebody has thousands of pounds of antiques in his house there is nothing to stop the creditor going to sequestration, which might well be the more appropriate course for that type of debt and absolute refusal to pay. But for the more general case of the unemployed, sick or disabled person, I suggest that the warrant sale of household goods should be abolished. I beg to move.

Lord Sanderson of Bowden

I read what the noble Lord, Lord Morton of Shuna, said at Second Reading. He said that when we had gone through the list of what was excluded, There is not much left".— Official Report, 13/1/87; col. 493.] I think I am right in saying that those were his actual words. There is a fundamental principle here on which we may differ. I refer to the whole question of deterrence. I shall not go into other deterrents, but the figures that were given at Second Reading show that the deterrent of having to go through a warrant sale, albeit now, thank goodness, modified to far more reasonable arrangements than had been the case in the past, has a good effect in that we get down to a very small number of cases at the end of the day.

I shall not pursue the route of the noble Lord, Lord Morton of Shuna, who referred to people having expensive things in their houses. There are other methods of dealing with that. While I entirely support the exclusions that have been put into the Bill, I wonder whether the deterrent effect of the end of the road and a warrant sale should be written out of the Bill.

Lord Carmichael of Kelvingrove

I should like to make a brief point on deterrence. I can see the force of the argument of the noble Lord, Lord Sanderson, that in the last resort one should be able to sell things to reclaim debt, although it has been pointed out just how humiliating that can be. But there is another way of looking at the matter, especially in certain parts of Scotland. If there was no warrant sale, in practically all cases credit would tend to dry up. In other words, part of the reason for people, especially less scrupulous people, lending money is that they know that at the end of the day they can have a warrant sale or threaten the shame of a warrant sale to recover the debt. This could perhaps disastrously force people to go to moneylenders to get the money, leading to another chain of deprivation. There are other quite valid reasons for not having warrant sales. It could get rid of a great deal of the debt that has accrued because unscrupulous people lend money on the basis of the warrant sale. That is another way of looking at the matter.

Lord Cameron of Lochbroom

I listened with interest to what has been said on this matter in different parts of the Committee. Perhaps I may take up the issue of credit with which the noble Lord, Lord Carmichael, has just dealt. As I made plain in response to an earlier debate, we are not dealing with that issue this evening: nor do I understand it to be suggested that warrant sales should not remain as a last resort.

It is important to bear in mind how this clause is framed. I draw the Committee's attention to the fact that in the part of the clause to which this amendment is directed we are dealing with articles belonging to a debtor which shall be exempt from poinding. There is nothing stated as to where these articles are to be. They may be found elsewhere than in a dwelling house.

Subsection (2) lists the articles that are to be exempt from poinding, if they are at the time of the poinding in a dwelling house"— and the Committee should then observe what follows, and are reasonably required for the use in the dwelling house of the person residing there or a member of his household". Thereafter are set out all the articles that one hopes would be found even in a relatively poor household. It may be that those items go beyond that. For example, there might not be one refrigerator. Nevertheless, all these items are exempt from poinding because they are thought to be articles which are reasonably required for the householder's use.

To take the same principle into Clause 1 would be to drive a coach and horses through the whole poinding process because it would mean that all articles found in the house would be exempt, whoever the poinding is being executed against. It would not be difficult to think of situations in which it would be a nonsense to say that just because a person has some valuable Louis XV furniture or Canalettos, or whatever there may be on the walls of his dwelling house, he should be freed from the poinding process and that his creditor should go so far as to sequestrate him in order to force him to pay his debts. That is not a proper use of this sequestration process.

I hope that the noble Lord opposite will reconsider what this amendment imports. I also have to say that this is a very technical matter. In any event, it would be impossible to accept the provisions of this amendment which sit ill with the definition of "dwelling house" found in Clause 45. For all those reasons, I must suggest to the Committee that this amendment should be resisted.

Baroness Carnegy of Lour

I understood that the noble Lord, Lord Morton of Shuna, was speaking also to Amendment No. 38. Is that right?

Lord Morton of Shuna

I spoke to Amendments Nos. 37 and 88.

>Baroness Carnegy of Lour

I beg the Committee's pardon.

Lord Morton of Shuna

Even when one of my amendments is accepted in principle, I am accustomed to the fact that there may be something wrong with its drafting. I fully accept that that is a necessary consequence. However, the purpose of the amendment is to drive a coach and horses through the Bill in the sense that the amendment intends to exclude poinding and warrant sales of household goods and articles belonging to the debtor.

The vast majority of debtors exist in areas of low income, in housing schemes in inner city areas. I merely say that if their walls are covered with Canalettos and they are sitting on Louis XV chairs, and so on, they are very ill-advised or they are paying a high insurance premium. That is not the position of the average debtor, as is shown in the Law Commission's report.

This is a matter of principle. I accept that if the principle is accepted there will be a considerable change in this part of the Bill but I think it is appropriate to seek the opinion of the Committee.

5.45 p.m.

On Question, Whether the said amendment (No. 37) shall be agreed to?

Their Lordships divided: Contents, 42; Not-Contents, 83.

DIVISION NO. 2
CONTENTS
Ardwick, L. Morton of Shuna, L.
Aylestone, L. Nicol, B.
Birk, B. Ogmore, L.
Carmichael of Kelvingrove, L. Phillips, B.
Cledwyn of Penrhos, L. Ponsonby of Shulbrede, L. [Teller.]
David, B. [Teller.]
Elwyn-Jones, L. Ritchie of Dundee, L.
Ennals, L. Seear, B.
Evans of Claughton, L. Serota, B.
Ewart-Biggs, B. Shackleton, L.
Ezra, L. Stedman, B.
Gallacher, L. Stewart of Fulham, L.
Graham of Edmonton, L. Underhill, L.
Gregson, L. Wallace of Coslany, L.
Jacques, L. Wells-Pestell, L.
John-Mackie, L. White, B.
Kennet, L. Wilson of Langside, L.
Kilbracken, L. Wilson of Rievaulx, L.
Llewelyn-Davies of Hastoe, B. Winchilsea and Nottingham, E.
Longford, E.
Lovell-Davis, L. Winterbottom, L.
McCarthy, L. Ypres, E.
NOT-CONTENTS
Abercorn, D. Hesketh, L.
Abinger, L. Hooper, B.
Ailesbury, M. Hylton-Foster, B.
Aldenham, L. Killearn, L.
Aldington, L. Kimball, L.
Auckland, L. Knollys, V.
Beaverbrook, L. Lane-Fox, B.
Belhaven and Stenton, L. Layton, L.
Belstead, L. Lindsey and Abingdon, E.
Bessborough, E. Long, V.
Blyth, L. Marley, L.
Boyd-Carpenter, L. Maude of Stratford-upon-Avon, L.
Brabazon of Tara, L.
Brightman, L. Merrivale, L.
Brougham and Vaux, L. Mersey, V.
Burton, L. Milverton, L.
Caithness, E. Monson, L.
Cameron of Lochbroom, L. Mountevans, L.
Campbell of Croy, L. Murton of Lindisfarne, L.
Carnegy of Lour, B. Norfolk, D.
Cathcart, E. Nugent of Guildford, L.
Coleraine, L. Onslow, E.
Cox, B. Orr-Ewing, L.
Cranbrook, E. Portland, D.
Cromartie, E. Rankeillour, L.
Cullen of Ashbourne, L. Renwick, L.
Davidson, V. [Teller.] Rodney, L.
Denham, L. [Teller.] Rugby, L.
Dilhorne, V. Russell of Liverpool, L.
Dundee, E. St. Davids, V.
Elles, B. Sanderson of Bowden, L.
Elliot of Harwood, B. Sandford, L.
Elliott of Morpeth, L. Skelmersdale, L.
Elton, L. Strathcona and Mount Royal, L.
Erroll, E.
Ferrers, E. Thomas of Swynnerton, L.
Gainford, L. Tranmire, L.
Gisborough, L. Trenchard, V.
Glenarthur, L. Trumpington, B.
Hailsham of Saint Marylebone, L. Vickers, B.
Ward of Witley, V.
Harvington, L. Whitelaw, V.
Hayter, L. Windlesham, L.

Resolved in the negative, and amendment disagreed to accordingly.

5.53 p.m.

Lord Morton of Shuna moved Amendment No. 38: Page 14, line 23, leave out ("(including not more than one refrigerator)") and insert ("or for storing such equipment or utensils").

The noble Lord said: This amendment seeks to alter the list that appears in subsection (2) of this clause which, as I said at Second Reading, is fairly extensive. I look forward to the intervention that the noble Baroness, Lady Carnegy, intends to make. What worries me particularly is subsection (k) which covers: furniture, equipment or utensils used for cooking, storing or eating food (including not more than one refrigerator)".

The reference to the refrigerator comes straight out of the Law Commission's report, but one can study both volumes of the report without finding any reason why it was so against debtors having more than one refrigerator.

I should have thought that a freezer is a refrigerator. It is also, as is a refrigerator, a piece of equipment—I do not think it would be fair to describe it as "furniture"—that is used for storing food. It appears to me that in certain areas of Scotland, especially the country areas and the islands where there is difficulty of access and the possibility at times of being cut off, many people reasonably require a deep freezer as an essential means of keeping their stock of food. No doubt they also find it useful to have a refrigerator. As I said at Second Reading, it seems strange that if one has a combined fridge/freezer, which is something that is quite commonly advertised these days, it may be retained. But if one has two articles, one of them must go.

I should have thought that there was no need for the words in brackets. As the Committee will see, they are covered by the opening words of subsection (2), because all these articles must be "reasonably required for … use". Therefore, thinking about this imaginary debtor's house with more than one refrigerator, perhaps many more, the first decision to make is whether they are reasonably required for use. It seems to me that those words cover the situation and one does not need the words in brackets.

However it seems strange that what is not covered is the ordinary store cupboard in which people store their dishes, cutlery, pots and pans, all of which are protected articles. That is out. It is not covered by paragraph (k) or anything else. It is in an endeavour to put that matter right that I move this amendment. I beg to move.

Lord Wilson of Langside

I hope that the noble and learned Lord the Lord Advocate will accept this amendment. Perhaps if he just nods his head, I can sit down. I see he does not. I find it utterly and unbelievably pathetic that in an Act of the British Parliament there should be such a provision. To me it smacks of the Dickensian-Victorian attitude towards the undeserving poor: "Two refrigerators and they cannot pay their debts? How shocking!". The Government should think again.

There is a great deal in these provisions about which I wish I had spoken previously. I find the feeling behind this provision disturbing and unacceptable. It may be, as the noble Lord, Lord Morton of Shuna, has said, that there is nothing in the Law Commission's report to indicate why it was suggested in the draft Bill, as I gather it was. I find it very difficult to understand why the Government thought it up and why no one scored it out.

I have sat in debtor courts at all levels for many years and I fully appreciate the interests of creditors. Frequently I had great sympathy for them, but can one really plead, in the same way as was said of the girl's baby, "It is a very small refrigerator"? Maybe we could have "at least two very small refrigerators". I think that when government thinking reaches such a stage it is better to take the provision out of the Bill altogether, and I hope that they will do that.

Baroness Carnegy of Lour

This subsection contains a list of homely items but it attempts to list what is essential for people to retain if some of their possessions are to be taken away. I have been an under-sheriff and I have signed documents which involve this process. Before doing so, I asked precisely and in some detail what it involved for those people. Of course I wanted to know whether the essentials would remain.

I can understand that it may sound ridiculous to the noble Lord. Lord Morton of Shuna, and the noble and learned Lord, Lord Wilson of Langside, to make a distinction between a fridge-freezer and a freezer. But the truth is that a refrigerator, which may or may not have a small freezer incorporated, is an absolutely basic essential for anyone in this country today. However, it is also true to say that if one is short of money the very last thing one does is keep a freezer full of frozen food. That is a very expensive proceeding.

I think the attitude of other people to this whole process matters, besides the debtor in question. I know a family who at the moment are in trouble. They cannot get their debts paid but they have an electric organ in a corner. I think that would have been exempt under the last amendment. It has been greatly discussed as a small electric organ in the corner. I think a freezer full of food is in that category. Of course it is a nice thing to have if you can afford it, but it is expensive.

In the context of this list I feel it is perfectly reasonable to say that there should be a refrigerator but not a deep-freeze, which is a big thing you keep food in for a considerable period of time. It is expensive food to buy. This is money tied up. It is not something that fits easily into this list. Whether the legal distinction between a refrigerator and a deepfreeze is adequately made here is for the lawyers to say.

6 p.m.

Lord Sanderson of Bowden

I think perhaps we should like to hear the definition of where the law stands as far as a fridge-freezer is concerned.

Lord Cameron of Lochbroom

I am bound to express a certain degree of surprise at the noble Lord putting forward this amendment, particularly in view of what he sought to do in his last amendment. We are dealing here with a clause and that part of a clause which provides for articles which are to be exempt from poinding. As my noble friend Lady Carnegy pointed out. the refrigerator has now become accepted, I think, as almost standard equipment in most houses. It seems to me absolutely correct that where one is dealing with a subsection which says "equipment …used for…storing food." it should he made plain that a refrigerator, if it is to be found there, will he exempt unless it can he said that it is not reasonably required for use in the dwelling-house. It makes plain that one refrigerator, as a rule, is certainly to be so regarded.

The noble Lord accepted that the Scottish Law Commission in its draft Bill specifically included this provision. We have taken it into the Bill. There is no question of it being in some sense put in in a slightly patronising way, as I think the noble and learned Lord, Lord Wilson, was suggesting. Far from it. The noble Lord opposite said, "Well, in certain parts of the country a freezer is necessary". I would certainly say that a freezer would fall within the definition of equipment used for storing food. If my noble friend were to ask me, "What about the fridge-freezer, that which has two parts to it;", I think I would have to say that it depends on whether it is divisible or indivisible. But at the end of the day one would expect those who are responsible for poinding to exercise a reasonable view of the matter. If it appears quite plain that the deep-freeze is something which in a remote part of the country is essential and is reasonably required for the use of that dwellinghouse, then it is covered of course by the generality of this subsection.

Accordingly, I have to say that I think this is an important explanatory feature of what articles are to be regarded as exempt from poinding. If some article is taken, apart from the refrigerator, the freezer or the like, it is always open to the debtor to apply for release from the poinding of that article on the grounds of undue harshness under Clause 23. So there is still a further step open.

I think that far from being of value to those whose articles are likely to be poinded, this amendment does not make plain that the refrigerator is in a very special position apart from other equipment which can be used for storing food and to which particular attention must be paid before it can be taken from the dwelling-house. For all these reasons I must recommend to the Committee that this amendment should not be accepted.

Baroness Carnegy of Lour

Before my noble friend sits down, perhaps I could ask him whether this is suggesting that if somebody has a deep freeze which he regards as essential in the country and which I do not, he cannot have a fridge? Milk cannot be put in a deep-freeze.

Lord Cameron of Lochbroom

I am grateful to my noble friend for that question. I am saying that under this the refrigerator would be exempt, but if in addition it can be shown that the freezer was reasonably required for use in the dwellinghouse in addition to the refrigerator, then that also may be exempt. It is simply the way in which this clause is framed. It starts by saying, The following articles belonging to a debtor shall be exempt". The articles which are to be exempt are equipment used for storing food, including not more than one refrigerator. But "equipment used for storing food" may also include a deep-freeze. That is what I am saying.

Lord Wilson of Langside

I assume that the Lord Advocate appreciates that not only can you not put milk in the deep-freeze; you cannot put the champagne in it either?

Lord Cameron of Lochbroom

I can assure the noble and learned Lord that I have put champagne quite successfully in the deep freeze. It has a remarkable effect; it cools it much more quickly than if it is put in the refrigerator! From their expressions, I am glad that other noble Lords have had the same experience as myself. I am not suggesting that simply because of that I can necessarily say that in my household the deepfreeze is reasonably required for use in the dwellinghouse of the person residing there or a member of his household.

Lord Morton of Shuna

I shall not enter into the discussion between noble and learned Lords on the cooling qualities of deep-freezes on champagne nor whether champagne would qualify as food under heading (k). I do not intend to press this amendment to a Division. I think the noble and learned Lord opposite must look at it again. But it appears to me that if a freezer is, as it obviously is, an article used for storing food, the effect of paragraph (k) as drafted is that if there are a refrigerator and a deep-freeze you must get rid of one.

Because of the way the paragraph is drafted, including not more than one refrigerator", with such little engineering knowledge as I possess, I should have thought that there is no doubt that a freezer is a refrigerator. It must be; it is the same sort of equipment with a different thermostat, no doubt. The expression, including not more than one refrigerator", means that one of them has to go. Therefore if you have a fridge and a freezer, whether you have the freezer stocked with food or anything else, the freezer has to go or the fridge has to go, the way this is drafted. That really cannot be so. There can be situations in the country, as I think the whole Committee has accepted, where there may be the need for a freezer full of food.

There may well be a person who while employed has bought some meat or has stored some fruit or something of that nature. Three or four months later he loses his job or becomes disabled, somebody sues him and creates a poinding. What is to happen? A deep freeze full of food has the food taken out of it and possibly sold. In such circumstances it is no use saying, "You can go to the sheriff and make a complaint." The food may have thawed by the time he gets there. The matter needs looking at again.

Lord Cameron of Lochbroom

I do not suggest that we will not look at this matter again in view of what noble Lords have said. I think that I have set out the Government's view, which is that one refrigerator should be regarded as an article exempt from poinding. It may be that there is more than one, but if they are reasonably required for use in the dwellinghouse it could be included.

The noble Lord, Lord Morton, is also a lawyer. If he is going to suggest that there could be any dubiety about the matter, I am happy to consider what is said. I hope that I have made the Government's view of this matter clear.

Lord Morton of Shuna

I am much obliged to the noble and learned Lord. I think that there is a dubiety when one reads subsection (2), in full, with (k). However reasonable the freezer may be, it may have to go. I do not think that this is what the Government want and therefore they may have to look at the wording again. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Morton of Shuna moved Amendment No. 39: Page 14, line 28, at end insert— ("(p) tools reasonably required for household use.")

The noble Lord said: Some Members of this place who are not in the Chamber at the moment are anxious that we should proceed quickly. I understand that the amendment, although not properly drafted, is acceptable to the Government. I beg to move.

Lord Cameron of Lochbroom

I am happy to consider this matter and come back on Report with an amendment to cover the point being made.

Lord Morton of Shuna

In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 16 agreed to.

Clauses 17 to 23 agreed to.

Clause 24 [Invalidity, cessation and recall of poinding]:

Lord Cameron of Lochbroom moved Amendment No. 40: Page 18, line 38, leave out ("the poinding to be void") and insert ("that to be the case").

The noble and learned Lord said: This is a technical amendment to produce consistency of wording within subsection (1) and with similar provisions elsewhere in the Bill. I can expand on that if the Committee wishes, but otherwise I beg to move.

On Question, amendment agreed to.

Clause 24, as amended, agreed to.

Clauses 25 and 26 agreed to.

Clause 27 [Duration of poinding]:

Lord Cameron of Lochbroom moved Amendment No. 41: Page 20, line 18, leave out from ("above") to end of line 19 and insert— ("(i) if the application is made on the ground referred to in paragraph (a) of that subsection, the poinding shall, if the date of disposal of the application is later than 14 days before the poinding is due to expire, continue to have effect until 14 days after that disposal; (ii) in any other case, the poinding shall continue to have effect until the disposal of the application;").

The noble and learned Lord said: This is an amendment to secure that poinding can continue in effect for 14 days after the sheriff has refused an application for an extension of the duration of that poinding.

The amendment follows discussions with the Law Society of Scotland. It is to secure the position of a creditor, in cases where an extension of poinding is refused, who would otherwise, as the Bill presently stands, be unable to take any further steps in his diligence even though the debtor has defaulted in the payment agreement between them. In addition, debtors would be placed at a disadvantage since creditors may not so readily enter into long-term payment agreements and then press on to do diligence. I beg to move.

On Question, amendment agreed to.

Clause 27, as amended, agreed to.

Clauses 28 to 31 agreed to.

6.15 p.m.

Clause 32 [Location of sale]:

Lord Morton of Shuna moved Amendment No. 42: Page 25, line 28, leave out ("any one") and insert ("all").

The noble Lord said: This clause relates to the possibility of warrant sales taking place in places, including the debtor's household, with the consent of the occupier. Subsection (6) states: In this section 'occupier', in relation to premises where there are 2 or more occupiers, means any one of them.".

That raises the difficulty that there may be three occupiers or a husband and wife who are not getting on. One of them agrees and the other disagrees. The amendment seeks to deal with that situation by taking out "any one" and inserting "all of them" so that if there are multiple occupiers, there must be the consent of all the occupiers if this rather unusual circumstance is to take place. I beg to move.

Lord Cameron of Lochbroom

I am not entirely persuaded that it is necessary to obtain the consent of all the occupiers, but I see that there is a problem over what is meant by the term "occupier". I should like to look at that matter and take account of what the noble Lord has said. With that undertaking, he may wish to withdraw his amendment.

Lord Morton of Shuna

I am certainly encouraged by that reply. It may be that the way to deal with the problem is to have a rather more radical revision of the clause. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 32 agreed to.

Clauses 33 to 35 agreed to.

Clause 36 [Payment agreements after warrant of sale]:

Lord Cameron of Lochbroom moved Amendment No. 43: Page 28, line 25, leave out from ("Act") to end of line 28.

The noble and learned Lord said: The amendment is to remove part of Clause 36 which on further consideration is now thought to be unnecessary, the provision not being required. Unless the Committee wishes a further explanation, I beg to move.

Lord Morton of Shuna

I in no sense oppose the amendment, which I think is entirely proper. I am just taking advantage of the opportunity to say that I and those on this side of the Committee have no objection to the numerous amendments in the name of the noble and learned Lord which follow. I hope that that will be of assistance in getting through the business.

On Question, amendment agreed to.

Clause 36, as amended, agreed to.

Clause 37 [The warrant sale]:

Lord Cameron of Lochbroom moved Amendment No. 44: Page 29, line 33, at beginning insert ("Subject to subsection (10) below,").

The noble and learned Lord said: In speaking to this amendment, I speak also to Amendments Nos. 45, 91 and 92. These amendments are all to remedy a defect in the Bill in situations where poinded goods are damaged and revalued accordingly. I beg to move.

On Question, amendment agreed to.

Lord Cameron of Lochbroom moved Amendment No. 45:

Page 29, line 35, at end insert— ("(10) Where—

  1. (a) any damaged article has been revalued under section 20(4) of this Act on the authority of the sheriff given under section 29(2) of this Act;
  2. (b) the damage was not caused by the fault of the debtor; and
  3. (c) no order has been made under section 29(3) of this Act requiring a third party to consign a sum in respect of the article, or such an order has been made but has not been complied with,
the amount credited to the debtor under subsection (9) above shall be an amount equal to the original valuation and not the revaluation referred to in paragraph (a) above.").

The noble and learned Lord said: I beg to move.

On Question, amendment agreed to.

Clause 37, as amended, agreed to.

Clauses 38 to 41 agreed to.

Clause 42 [Certain proceedings under Part II to postpone further steps in the diligence]:

Lord Cameron of Lochbroom moved Amendment No. 46: Page 33, line 34, leave out ("in breach of a poinding") and insert ("without consent or authority").

The noble and learned Lord said: With this amendment I shall speak also to Amendment No. 94. These are technical amendments which make changes in the wording to achieve consistency. I beg to move.

On Question, amendment agreed to.

Clause 42, as amended, agreed to.

Clause 43 [Conjoining of further poinding with original poinding]:

Lord Cameron of Lochbroom moved Amendment No. 47: Page 34, line 43, leave out ("and 30(2)(a)(i)") and insert (", 30(2)(a)(i) and 35(2)(a)").

The noble and learned Lord said: This is to amend Clause 43(4) so as to include a further reference to Clause 35 dealing with invalidity and cessation of poindings. The effect is to separate the defects of one poinding from another poinding with which it is conjoined. I beg to move.

On Question, amendment agreed to.

Clause 43, as amended, agreed to.

Clauses 44 to 46 agreed to.

Clause 47 [General effect of earnings arrestment]:

Lord Cameron of Lochbroom had given notice of his intention to move Amendment No. 48: Page 36, leave out lines 1 to 6.

The noble and learned Lord said: I have reconsidered this amendment. I do not propose to move it at this time because I should prefer to bring forward an amendment later to make it clear that Clause 47(2) is subject to the provisions of Clause 90(2), which disapplies the requirement for a charge in cases where the diligence follows on a summary warrant. It is much easier that that reference should appear in this clause, as the effect of this amendment would otherwise have been to remove the subsection altogether. The reader of the Act would then have to go to Clause 90 before he had any hint of this difficulty.

With that explanation, the amendment is not moved.

[Amendment No. 48 not moved.]

Clause 47 agreed to.

Clauses 48 to 50 agreed to.

Clause 51 [General effect of current maintenance arrestment]:

Lord Cameron of Lochbroom moved Amendment No. 49: Page 39, line 40, leave out ("operation") and insert ("effect")

The noble and learned Lord said: With this amendment, I speak to Amendment No. 56. These are purely technical changes of wording. I beg to move.

On Question, amendment agreed to.

Clause 51, as amended, agreed to.

Clause 52, agreed to.

Clause 53 [Deduction from net earnings to be made by employer]:

Lord Cameron of Lochbroom moved Amendment No. 50: Page 40, line 34, leave out ("65A( 1A)") and insert ("65(1A)")

The noble and learned Lord said: With this, I speak to Amendment No. 60. These are technical amendments to correct a reference to the Income and Corporation Taxes Act 1970. I beg to move.

On Question, amendment agreed to.

Clause 53, as amended, agreed to.

Clauses 54 and 55 agreed to.

Clause 56 [Effect of new maintenance order on current maintenance arrestment]:

Lord Cameron of Lochbroom moved Amendment No. 51: Page 42, line 31, after ("divorce") insert ("or on the granting of a declarator of nullity of marriage")

The noble and learned Lord said: This is to make reference to periodic allowance payable on declarator person of nullity of marriage following the passage of the Family Law (Scotland) Act. I beg to move.

On Question, amendment agreed to.

Clause 56, as amended, agreed to.

Clause 57 [Failure to comply with arrestment, manner of payment and creditor's duty when arrestment ceases to have effect]:

Lord Cameron of Lochbroom moved Amendment No. 52: Page 43, leave out lines 15 and 16 and insert— ("(5) Where an event mentioned in subsection (4) above occurs, any sum paid by an employer—")

The noble and learned Lord said: This clarifies the position on overpayments when an arrestment ends. I beg to move.

On Question, amendment agreed to.

Clause 57, as amended, agreed to.

Clause 58, agreed to.

Clause 59 [Priority among arrestments]:

Lord Cameron of Lochbroom moved Amendment No. 53: Page 44, line 16, leave out from ("effect") to ("the") in line 18.

The noble and learned Lord said: With this, I speak to Amendment No. 54. These amendments are necessary to ensure that employers can give creditors who have been prevented from serving an arrestment details of all the arrestments in effect against the relevant debtor's earnings and not just details of the arrestment which prevented the new creditor from executing his. This will help the sheriff clerk to set up a conjoined arrestment order if the new creditor applies for one. I beg to move.

On Question, amendment agreed to.

Lord Cameron of Lochbroom moved Amendment No. 54: Page 44, line 20, leave out ("the first arrestment") and insert ("any other earnings arrestment or current maintenance arrestment in effect against the earnings of the same debtor payable by the same employer").

On Question, amendment agreed to.

Clause 59, as amended, agreed to.

Clause 60 agreed to.

Clause 61 [Amount recoverable under conjoined arrestment order]:

Lord Cameron of Lochbroom moved Amendment No. 55: Page 46, line 18, leave out ("or current maintenance arrestment schedule").

The noble and learned Lord said: This is a technical amendment to remove an erroneous reference. I beg to move.

On Question, amendment agreed to.

Lord Cameron of Lochbroom moved Amendment No. 56: Page 46, line 26, leave out ("operation") and insert ("effect").

On Question, amendment agreed to.

Lord Cameron of Lochbroom moved Amendment No. 57: Page 46, line 33, after ("arrestment") insert ("schedule").

The noble and learned Lord said: With this, I speak to Amendment No. 58. These are purely technical amendments. I beg to move.

On Question, amendment agreed to.

Lord Cameron of Lochbroom moved Amendment No. 58: Page 46, line 34, after ("arrestment") insert ("schedule").

On Question, amendment agreed to.

Clause 61, as amended, agreed to.

Clause 62 [Relationship of conjoined arrestment order with earnings and current maintenance arrestments]:

Lord Cameron of Lochbroom moved Amendment No. 59: Page 47, line 9, leave out ("such service") and insert ("the service of a copy of the conjoined arrestment order on him under section 60(7) of this Act").

The noble and learned Lord said: This is a technical amendment to clarify a reference to "service". I beg to move.

On Question, amendment agreed to.

Clause 62, as amended, agreed to.

Clause 63 [Sum payable by employer under conjoined arrestment order]:

Lord Cameron of Lochbroom moved Amendment No. 60: Page 48, line 37, leave out ("65A( 1A)") and insert ("65(1A)")

On Question, amendment agreed to.

Clause 63, as amended, agreed to.

Clause 64 agreed to.

Clause 65 [Operation of conjoined arrestment order]:

Lord Cameron of Lochbroom moved Amendment No. 61: Page 50, line 2, leave out from ("him") to end of line 5 and insert ("to the creditors whose debts are being enforced by the conjoined arrestment order in accordance with Schedule 3 to this Act or, if there are no such creditors, shall be paid to the debtor.").

The noble and learned Lord said: This gives further guidance to sheriff clerks as to how to disburse sums recovered from a creditor which were wrongly paid to him under a conjoined arrestment order after some of the debts in the order have dropped out or the order itself has ceased. I beg to move.

On Question, amendment agreed to.

Clause 65, as amended, agreed to.

Clause 66 [Recall and variation of conjoined arrestment order]:

Lord Cameron of Lochbroom moved Amendment No. 62: Page 51, line 22, leave out ("(4) or (6)").

The noble and learned Lord said: With this, I speak to Amendment No. 63. This provides that orders under Clause 66 excluding a debt for maintenance obligation from a conjoined arrestment order will come into effect seven days after their service on the employer. This brings these orders into line with orders under Clause 60(2), which makes a conjoined arrestment order, and under Clause 62(5), which adds a debt or maintenance obligation to a conjoined arrestment order. I beg to move.

On Question, amendment agreed to.

Lord Cameron of Lochbroom moved Amendment No. 63: Page 51, line 26, at end insert— ("( ) An order under subsection (4) or (6) above shall come into effect 7 days after a copy of the order has been served on the employer under subsection (7) above.").

On Question, amendment agreed to.

Clause 66, as amended, agreed to.

Clauses 67 to 69 agreed to.

Clause 70 [Execution and service of copies]:

Lord Cameron of Lochbroom moved Amendment No. 64: Page 53, line 25, leave out ("or copy thereon").

The noble and learned Lord said: This amendment removes the reference in Clause 70(3) to service of a copy of an arrestment schedule on the debtor. As failure to serve or intimate a copy of the schedule to the debtor does not render the arrestment invalid, there is no need to make specific provision for the form of such service or intimation on the face of the Bill. I beg to move.

On Question, amendment agreed to.

Lord Cameron of Lochbroom moved Amendment No. 65: Page 53, line 27, leave out from first ("service") to end of line 28.

The noble and learned Lord said: This amendment provides that hand service of an arrestment schedule on the employer will be in the standard form; that is, the officer serving or intimating may be accompanied by a witness.

On Question, amendment agreed to.

Lord Cameron of Lochbroom moved Amendment No. 66Page 53, line 32, leave out from ("the") to second ("a") in line 33 and insert ("service of an earnings arrestment schedule, a current maintenance arrestment schedule or").

The noble and learned Lord said: In speaking to this amendment I speak also to Amendment No. 67. These amendments apply to the provisions of Clause 17(1) to service of an earnings arrestment or current maintenance arrestment schedule rather than to execution. Thus Clause 17(1) will apply to unsuccessful service, as well as to service which created an arrestment, and creditors and officers of court will be clear on what days they may or may not serve an arrestment schedule.

On Question, amendment agreed to.

Lord Cameron of Lochbroom moved Amendment No. 67: Page 53, line 35, leave out ("execution or").

On Question, amendment ageed to.

Clause 70, as amended, agreed to.

Clauses 71 and 72 agreed to.

Clause 73 [Interpretation of Part III]:

Lord Cameron of Lochbroom moved Amendment No. 68:

Page 54, line 26, leave out from ("books") to end of line 30 and insert—

  1. ("(b) a summary warrant, a warrant for civil diligence or a bill protested for non-payment by a notary public;
  2. (c) an order or determination which by virtue of any enactment is enforceable as if it were an extract registered decree arbitral bearing a warrant for execution issued by the sheriff;
  3. (d) a civil judgment granted outside Scotland by a court, tribunal or arbiter which by virtue of any enactment or rule of law is enforceable in Scotland; or
  4. (e) a document or settlement which by virtue of an Order in Council made under section 13 of the Civil Jurisdiction and Judgments Act 1982 is enforceable in Scotland,
on which, or on an extract of which,")

The noble and learned Lord said: This is an amendment to clarify the definition of "decree or other document" in this clause. I beg to move.

On Question, amendment agreed to.

Lord Cameron of Lochbroom moved Amendment No. 69: Page 55, line 8, after ("fine") insert ("or any sum due under an order of court in criminal proceedings")

The noble and learned Lord said: Again this is to make clear the definition of ordinary debt in this clause using the formula of the definition of debt in Clause 15(3). I beg to move.

On Question, amendment agreed to.

Clause 73, as amended, agreed to.

Clauses 74 to 77 agreed to.

Clause 78 [Inspection of work]:

Lord Cameron of Lochbroom moved Amendment No. 70: Page 59, line 43, after ("inspection") insert (", enquiry")

The noble and learned Lord said: This is to amend the clause to enable a person appointed to inspect the work of an officer of court to claim payment for his work in connection with inquiries into extra official activities. I beg to move.

On Question, amendment agreed to.

Clause 78, as amended, agreed to.

Clauses 79 to 83 agreed to.

Clause 84 [Collection of statistics from officers of court]:

Lord Cameron of Lochbroom moved Amendment No. 71: Page 64, line 14, after ("or) insert ("officers of court or")

The noble and learned Lord said: This amendment secures that any publication of statistical information does not identify officers of court. I beg to move.

On Question, amendment agreed to.

Clause 84, as amended, agreed to.

Clauses 85 to 102 agreed to.

Clause 103 [Appeals]:

Lord Cameron of Lochbroom moved Amendment No. 72: Page 73, leave out line 21 and insert— ("(c) section 24(1) except in so far as it relates to orders declaring that a poinding is invalid or has ceased to have effect; ( ) section 24(3);")

The noble and learned Lord said: The purpose of this amendment is to secure that an order under Clause 24(1) declaring a poinding to be invalid or to have ceased to have effect will have immediate effect in the same way as similar orders under Clauses 50(1) and 55(1). I beg to move.

On Question, amendment agreed to.

Clause 103, as amended, agreed to.

Clauses 104 to 108 agreed to.

Clause 109 [Short title, commencement and extent]:

Lord Cameron of Lochbroom Amendment No. 73: Page 75, line 34, leave out ("section 76 and").

The noble and learned Lord said: This amendment is to secure that Clause 76 will not come into force on Royal Assent but will do so on a day to be appointed by the Lord Advocate. It deals with the establishment of an advisory council. It is therefore appropriate that it should be taken out of the clause. I beg to move.

On Question, amendment agreed to.

Clause 109, as amended, agreed to.

Schedules 1 to 3 agreed to.

Schedule 4 [Recovery of rates and taxes etc.]:

Lord Cameron of Lochbroom moved Amendments Nos. 74 and 75: Page 85, line 32, leave out ("proper officer") and insert ("Commissioners"). Page 85, line 33, leave out ("proper officer") and insert ("Commissioners").

The noble and learned Lord said: I have spoken to Amendments Nos. 74 and 75 with Amendment No. 2. I beg to move.

On Question, amendments agreed to.

Lord Cameron of Lochbroom moved Amendment No. 76: Page 85, line 36, leave out ("by") and insert ("from").

The noble and learned Lord said: I am speaking also to Amendments Nos. 78, 83 and 85. These amendments reflect current Customs and Excise terminology that taxes are due "from" a taxpayer. I beg to move.

On Question, amendment agreed to.

Lord Cameron of Lochbroom moved Amendment No. 77: Page 85, line 37, leave out from ("that") to ("him") in line 39 and insert ("payment of the amount due from each such person has been demanded from").

The noble and learned Lord said: I beg to move. I have spoken to this with Amendment No. 2.

On Question, amendment agreed to.

Lord Cameron of Lochbroom moved Amendment No. 78: Page 85, line 40, after ("due") insert ("from").

On Question, amendment agreed to.

Lord Cameron of Lochbroom moved Amendments Nos. 79 to 82: Page 86, line 14, leave out ("proper officer") and insert ("Commissioners"). Page 86, leave out lines 16 to 18 and insert— ("(7) Regulations under this Schedule may make provision for anything which the Commissioners may do under sub-paragraphs (3) to (6) above to be done by an officer of the Commissioners holding such rank as the regulations may specify."."). Page 86, line 25, leave out ("proper officer") and insert ("Commissioners"). Page 86, line 26, leave out ("proper officer") and insert ("Commissioners").

The noble and learned Lord said: I beg to move Amendments Nos. 79 to 82 en bloc. They were spoken to with Amendment No. 2.

On Question, amendments agreed to.

Lord Cameron of Lochbroom moved Amendment No. 83: Page 86, line 28, leave out ("by") and insert ("from").

On Question, amendment agreed to.

Lord Cameron of Lochbroom moved Amendment No. 84: Page 86, line 30, leave out from ("that") to ("him") in line 32 and insert ("payment of the amount due from each such person has been demanded from").

On Question, amendment agreed to.

Lord Cameron of Lochbroom moved Amendment No. 85: Page 86, line 33, after ("due") insert ("from").

On Question, amendment agreed to.

Lord Cameron of Lochbroom moved Amendment No. 86: Page 87, line 10, leave out ("proper officer") and insert ("Commissioners").

On Question, amendment agreed to.

Lord Cameron of Lochbroom moved Amendment No. 87:

Page 87, leave out lines 12 to 14 and insert— ("(9) The Commissioners may by regulations make provision for anything which the Commissioners may do under subparagraphs (5) to (8) above to be done by an officer of the Commissioners holding such rank as the regulations may specify.".").

On Question, amendment agreed to.

Schedule 4, as amended, agreed to.

Schedule 5 [Poindings and sales in pursuance of summary warrants]:

[Amendments Nos. 88 to 90 not moved.]

Lord Cameron of Lochbroom moved Amendment No. 91: Page 98, line 25, at beginning insert ("Subject to sub-paragraph (8) below,").

On Question, amendment agreed to.

Lord Cameron of Lochbroom moved Amendment No. 92:

Page 98, line 27, at end insert— ("(8) Where—

  1. (a) any damaged article has been revalued under paragraph 5(4) above on the authority of the sheriff given under paragraph 13(2) above;
  2. (b) the damage was not caused by the fault of the debtor; and
  3. (c) no order has been made under paragraph 13(3) above requiring a third party to consign a sum in respect of the article, or such an order has been made but has not been complied with,
the amount credited to the debtor under sub-paragraph (7) above shall be an amount equal to the original valuation and not the revaluation referred to in paragraph (a) above.").

On Question, amendment agreed to.

Lord Cameron of Lochbroom moved Amendment No. 93: Page 100, line 41, leave out ("10") and insert ("11").

The noble and learned Lord said: This is a technical amendment. I beg to move.

On Question, amendment agreed to.

Lord Cameron of Lochbroom moved Amendment No. 94: Page 101, line 3, leave out ("in breach of a poinding") and insert ("with consent or authority").

On Question, amendment agreed to.

Lord Cameron of Lochbroom moved Amendment No. 95: Page 102, line 39, leave out ("an officer of court") and insert ("a sheriff officer").

The noble and learned Lord said: Again, this is a technical amendment. I beg to move.

On Question, amendment agreed to.

Lord Cameron of Lochbroom moved Amendment No. 96: Page 104, line 3, leave out from first ("the") to end of line 5 and insert ("Commissioners of Customs and Excise;").

On Question, amendment agreed to.

Schedule 5, as amended, agreed to.

Schedule 6 [Minor and consequential amendments]:

Lord Cameron of Lochbroom moved Amendment No. 97: Page 107, line 28, at end insert— ("(f) in subsection (7A) for the words "distress is levied" there shall be substituted the words "things are taken into possession" and for the word "distress" where second occurring there shall be substituted the words "taking into possession".").

The noble and learned Lord said: This is a technical amendment. I beg to move.

On Question, amendment agreed to.

Lord Cameron of Lochbroom moved Amendment No. 98: Page 109, line 10, leave out ("by the debtor").

The noble and learned Lord said: This amendment amends Schedule 6, paragraph 28. The effect is in paragraph 24 of Schedule 7 to the Bankruptcy Act 1985 to remove the restriction that redemption can only be by the debtor. Thus redemption by third parties under Clause 41(3)(a) will also be attracted. I beg to move.

Lord Morton of Shuna

I have no objection to this amendment. However, it appears to be wrong in that, by my counting, it is not on line 10 but on line 18. Something has gone wrong with the numbering of the lines on the side of the page. I hope that I have it in the correct place and therefore I have no objection to the amendment.

Lord Cameron of Lochbroom

I am in some difficulty because I have already moved this amendment. It being moved, I cannot withdraw it, but in the circumstances I shall bear in mind what the noble Lord has said.

On Question, amendment agreed to.

Schedule 6, as amended, agreed to.

Remaining schedules agreed to.

House resumed: Bill reported with amendments.