HL Deb 17 February 1987 vol 484 cc1028-33

4.45 p.m.

Report received.

Clause 16 [Articles exempt from poinding]:

Lord Cameron of Lochbroom moved Amendment No. 1: Page 14, line 23, leave out ("(including not more than one refrigerator)") and insert— ("( ) refrigerators;")

The noble and learned Lord said: My Lords, during the very helpful debate in Committee the noble Lord, Lord Morton, suggested that the reference to a refrigerator in paragraph (k) of Clause 16 could give rise to some difficulties in view of the apparent limitation to the exemption of only one refrigerator. The noble Lord also mentioned the possibility of confusion between a refrigerator and a freezer, I think, in the context of champagne. I was grateful to him and to other noble Lords who joined in the debate about this important area of exemptions from poinding. I undertook to consider the matter and the amendment which I now commend to your Lordships seeks to clarify the position.

I mentioned during the debate in Committee that nowadays a refrigerator is regarded as an almost standard household item. I believe that it is right that the Bill should continue to allow a specific exemption for this item. The form of the amendment enables a debtor to seek to establish that at least one refrigerator and possibly more are exempt from poinding if they are reasonably required for the use of the household.

Your Lordships will recall that during the debate in Committee it was suggested that it might be argued that the term "refrigerator" included a freezer, thus limiting the exemption to only one refrigerator or only one freezer. I do not think that this is right. I suggest that the distinction between a refrigerator and a freezer is relatively clear. To remove any possible confusion over this matter the amendment makes it clear that the standard list of items exempt from poinding can be expected to include at least one refrigerator, provided that it is reasonably required. However, and subject to the same requirement, freezers may also be exempt from poinding under the general category of equipment used for storing food.

With that explanation, I beg to move this amendment. In doing so I should have said that I also speak to Amendment No. 11.

Lord Morton of Shuna

My Lords, I should like to remind the noble and learned Lord—or perhaps correct him—that noble Lords who admitted at least to the experience of keeping champagne in their freezers were all on his side of the House. Possibly there were some from the Alliance Benches, but my recollection is that all of them were on his side of the House. No such admission came from these Benches. Certainly I have no experience of keeping champagne in the deep freeze and I do not think that I should want to try it.

Those of us who have known the noble and learned Lord for rather more years than he has graced this House are aware that he has a warm and sympathetic heart. Unfortunately the noble and learned Lord has had to encase himself in a cold carapace in order to say what he has to say on behalf of this cold and unfeeling Government. It is a very great pleasure to see that his natural warmth has burnt through to allow the debtor who reasonably requires both a fridge and a freezer to keep them. It is a notable victory for common sense and I welcome it.

Baroness Carnegy of Lour

My Lords, having played a small part in the discussion at Committee stage, I should like to express appreciation to my noble and learned friend for having taken into account what was said. The public do not always realise that when noble Lords sit in this grand Chamber and consider sometimes very difficult legal issues we are discussing matters which affect human beings, very often at the most vulnerable moment in their lives. If one is subject to having one's possessions removed because of non- payment of a debt, the fact that the goods which are allowed to remain can include a fridge, a fridge/freezer that one may happen to have and also a deep-freezer is a matter for which in the future people will be extremely grateful.

Lord Sanderson of Bowden

My Lords, I should also like to thank my noble and learned friend the Lord Advocate, particularly in the knowledge that he now knows exactly what a fridge/freezer is.

On Question, amendment agreed to.

Lord Cameron of Lochbroom moved Amendment No. 2: Page 14, line 26, after ("storing") insert ("—(i)").

The noble and learned Lord said: My Lords, again, in moving this amendment I speak also to Amendments Nos. 3, 4, 12, 13 and 14.

During the debate in Committee, the noble Lord opposite moved an amendment to provide for the exemption from poinding of furniture which is used for the storage of cooking and eating utensils. I am entirely satisfied that the Bill would be improved by amending it in the way that was suggested, though there were at that time certain technical defects about the amendment. That would provide more extensive and appropriate protection for the debtor. The Government are always willing to listen to good cases, and, where they are put forward, to accept them. This is, again, another of those occasions. I beg to move.

Lord Morton of Shuna

My Lords, I am very grateful. I am only disappointed that the good cases I so frequently put forward are not recognised more often.

On Question, amendment agreed to.

Lord Cameron of Lochbroom moved Amendment No. 3: Page 14, line 27, leave out ("or storing") and insert ("(ii)").

On Question, amendment agreed to.

Lord Cameron of Lochbroom moved Amendment No. 4: Page 14, line 27, at end insert ("or (iii) utensils used for cooking or eating food:").

On Question, amendment agreed to.

Lord Cameron of Lochbroom moved Amendment No. 5: Page 14, line 28, at end insert— ("( ) tools used for maintenance or repair of the dwellinghouse or of household articles.").

The noble and learned Lord said: My Lords, this is another of the few good cases which the noble Lord opposite brings forward which I was prepared to accept in principle in Committee.

The amendment now provides that tools which are reasonably required for the maintenance or repair of the dwellinghouse and articles in it should be exempt from poinding. I think that all noble Lords would agree that a debtor should be left with a sufficiently comprehensive tool-kit to enable him to keep his house and the articles within it in good repair. In moving this amendment, I should say that I am speaking also to Amendment No. 15.

On Question, amendment agreed to.

Clause 32 [Location of sale]:

Lord Cameron of Lochbroom moved Amendment No. 6: Page 25, line 36, leave out ("any one") and insert ("each").

The noble and learned Lord said: My Lords, in speaking to this amendment I speak also to Amendment No. 16. At Committee the noble Lord, Lord Morton, suggested that there might be some difficulty with the obtaining of consents where there was multiple occupation of premises in which goods were poinded. I undertook to look at the matter along the lines he suggested. I am persuaded that the consent of each occupier should be obtained. That would be consistent with the overall policy implemented in this part of the Bill that warrant sales should not take place in premises unless the debtor and the occupiers consented. The amendments deal with both ordinary poindings and summary warrant poindings.

I indicated a concern about the definition of the "occupier" at Committee. However, I am satisfied that the reference to "occupier" in the Bill is satisfactory since it will attract its ordinary dictionary meaning of a person who holds or is in possession of property. The provisions of the Bill do not require any specialised meaning to be given to "occupier". I beg to move.

Lord Morton of Shuna

My Lords, I should like to thank the noble and learned Lord for taking this amendment, which although very small was very important in the circumstances.

On Question, amendment agreed to.

Clause 47 [General effect of earnings arrestment]:

Lord Cameron of Lochbroom moved Amendment No. 7: Page 36, leave out lines 22 to 27.

The noble and learned Lord said: My Lords, in moving this amendment I speak also to Amendment No. 8.

Noble Lords may recollect that at Committee I did not move an amendment which was down in my name because I wished to give further consideration to the possibility of including in Clause 47 a reference to the requirement to serve a charge in Clause 90. The amendment which I now propose will remove Clause 47(2). That subsection essentially duplicated the provisions of Clause 90(1) which provide that an earnings arrestment must be preceded by the serving of a charge on the debtor.

I took the view, however, that it would be useful to anyone dealing with earnings arrestments to have their attention drawn to the necessity of serving a charge. For that reason the amendment goes on to insert a reference to Clause 90 so that an earnings arrestment does not come into effect unless a charge has been served. Noble Lords will have noticed that by virtue of Clause 90(2) this does not apply to earnings arrestments executed in pursuance of a summary warrant. This amendment achieves a useful tidying up of the Bill and also—and I think more importantly—provides a helpful onward reference to the requirement to serve a charge. I beg to move.

On Question, amendment agreed to.

Lord Cameron of Lochbroom moved Amendment No. 8: Page 36, line 28, leave out ("and 62") and insert ("(priority among arrestments), 62 (relationship of conjoined arrestment order with certain other arrestments) and 90 (provisions relating to charges for payment)").

On Question, amendment agreed to.

Clause 93 [Recovery from debtor of expenses of certain diligences]:

Lord Cameron of Lochbroom moved Amendment No. 9: Page 70, leave out lines 22 to 27 and insert— ("( ) in effect immediately before the date of sequestration (within the meaning of the Bankruptcy (Scotland) Act 1985) of the debtor's estate; ( ) in effect immediately before the presentation of a petition for an administration order under Part II of the Insolvency Act 1986; ( ) in effect against property of the debtor immediately before a floating charge attaches to all or part of that property under section 53(7) or 54(6) of that Act; ( ) in effect immediately before the commencement of the winding up, under Part IV or V of that Act, of the debtor;").

The noble and learned Lord said: My Lords, with the leave of the House I speak also to Amendment No. 10. These are technical amendments. They provide a more accurate description of the various insolvency processes and the manner in which they affect a diligence. I beg to move.

On Question, amendment agreed to.

Lord Cameron of Lochbroom moved Amendment No. 10: Page 70, line 39, leave out ("winding up, receivership") and insert ("administration order, receivership, winding up").

On Question, amendment agreed to.

The Deputy Speaker

My Lords, Amendments Nos. 11, 12, 13, 14, 15 and 16 have already been spoken to. With the permission of noble Lords I shall put the Question that these amendments be agreed to en bloc.

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

Lord Cameron of Lochbroom moved Amendments Nos. 11 to 16: Page 89, line 10, leave out ("(including not more than one refrigerator)") and insert— ("( ) refrigerators;"). Page 89, line 13, after ("storing") insert ("—(i)"). Page 89, line 14, leave out ("or storing") and insert ("(ii)"). Page 89, line 14, at end insert ("or (iii) utensils used for cooking or eating food;"). Page 89, line 15, at end insert— ("( ) tools used for maintenance or repair of the dwellinghouse or of household articles."). Page 97, line 7, leave out ("any one") and insert ("each").

On Question, amendments agreed to.