Clause 256 — Repeal of Certain Bankruptcy Offences

Orders of the Day — Enterprise Bill – in the House of Commons at 8:45 pm on 30th October 2002.

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Lords amendment: No. 166, page 180, line 29, after Xby" insert Xwritten"

Photo of Miss Melanie Johnson Miss Melanie Johnson Parliamentary Under-Secretary, Department of Trade and Industry

I beg to move, That this House
agrees with the Lords in the said amendment.

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

With this we may discuss Lords amendments Nos. 167 to 173.

Photo of Miss Melanie Johnson Miss Melanie Johnson Parliamentary Under-Secretary, Department of Trade and Industry

Although not all the amendments are related, they are all technical amendments to the provisions on individual insolvency. I thank the Opposition in the other place. With the exception of amendments Nos. 168, 169 and 173, the amendments were inspired by helpful amendments tabled by them, for which we are most grateful.

I could comment in detail on the amendments if hon. Members wish, but I do not propose to do so. Amendment No. 166 ensures that any variation of an income payments agreement must be in writing. Given that an income payments agreement itself must be in writing, it is a sensible clarifying amendment. Amendments Nos. 167, 170 and 171 apply to clause 257 on the bankrupt's home and provide protection to what the noble Lord Freeman referred to as the deserted spouse.

Photo of Greg Knight Greg Knight Conservative, East Yorkshire

I may depart company with my noble Friends in the other place on this matter. Amendment No. 166 is, on the face of it, the most reasonable amendment tabled to the Bill. However, it is a long-established facet of English law that contracts do not have to be written. I await to be corrected by a lawyer, but I recall from the days when I practised law that the only aspect of law for which one had to produce a written contract was for the sale or purchase of property—land. That was introduced in the Law of Property Act 1925 by one of my political heroes, F. E. Smith, the First Earl of Birkenhead.

Since then, lawyers have accepted that it is reasonable that if someone is selling property, there has to be evidence of a written contract because of the risk of gazumping—but that is all that the Act has to say on the matter. It does not say that the contract has to be written, just that it has to be evidenced in writing. Why is it deemed that an agreement between the parties has to go further than the Law of Property Act and be contained in a written agreement?

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

I hesitate to intervene because I am not a lawyer and my right hon. Friend is a distinguished member of that profession.

In the context of the stipulation that a contract is to be determined by agreement between the parties, does there have to be a witness to it if it is simply verbal? One of the dangers is that we might get into the difficulty—I speak as a layman—of one person's word against another. Given the importance of the matters under consideration, it strikes me that there is a fragility or vulnerability in that context. Does my right hon. Friend believe that a simple verbal agreement without witnesses is sufficiently robust? Perhaps there should be a provision for a written agreement in such cases.

Photo of Greg Knight Greg Knight Conservative, East Yorkshire

As I understand it, amendment No. 166 requires a written agreement—a document in writing between two or more parties. Ten or more people might witness a verbal agreement. They are honest citizens who are not going to perjure themselves. They would have heard the agreement made, but if this amendment were accepted, the agreement would be outwith the scope of the Bill, and that seems rather odd.

The Minister dismissed this amendment as being technical, but we are seeking to make this a unique area of law. [Interruption.] I hear the Minister for Employment Relations, Industry and the Regions, Alan Johnson, muttering incoherently on the Front Bench, but I have to say to him that I am aware of only one case in English law where one needs evidence of a contract, and that is in the sale or purchase of land. We are now taking that a stage further and saying that written evidence is not enough; a written contract is necessary. Why should such a draconian provision be introduced?

My right hon. Friend Mr. Forth touched on what many see as the danger here. If an oral contract is sufficient, someone who is less than honest may be willing to persuade his wife or another person to perjure themselves at a court or tribunal, and we have seen that happen in a number of court cases recently. We do not want to encourage that, but where a court can be satisfied that there is an agreement, even if it is not in writing, surely that should be sufficient.

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst 9:00 pm, 30th October 2002

I want to press the Minister to give further clarification on amendment No. 167. It strikes me—I confess that I speak as a layman, but such is the role that we have in these circumstances—that we are making some rather radical alterations to the sense and thrust of the existing provision. The wording that the amendment seeks to change is clear: it says that the provision applies where the property comprising the bankrupt's estate consists of an interest in a dwelling house that, at the date of the bankruptcy, was the bankrupt's sole or principal residence.

The amendment seeks radically to alter that sense. Instead of referring to the

Xbankrupt's sole or principal residence", it would refer to the

Xsole or principal residence of—

(a) the bankrupt,

(b) the bankrupt's spouse, or

(c) a former spouse of the bankrupt".

By any definition, that considerably widens the scope of the provision. We need clarification from the Minister to establish whether the amendment seeks to broaden the definition so as to include more principal or sole residences, or whether it seeks to narrow the definition.

I thought that I heard some reference to divorced spouses a moment ago, and after simply reading the wording I am not entirely clear whether we are trying to include or exclude them. On the face of it, the amendment means that the measure will now apply to one of a range of properties in the bankrupt's estate, and that range will extend beyond the property of the bankrupt himself.

That seems radically to alter the meaning of the provision, and it could have a considerable effect on a number of people, who may be innocent parties. I am not saying that any guilt should be attached to someone who is bankrupt. In fact, as the House will know, our cultural attitude to bankruptcy, which tends, wrongly in my view, to regard bankruptcy as a wicked act, is very different from that of our American cousins, who regard it as something benign that one must go through if one is to achieve something in future. I wonder whether we are trying to spread the blame and bring in others beyond the bankrupt himself or whether we are trying to protect those others.

We seek from the Minister clarification about the thrust of the amendment and its likely effect. It would be helpful if she could give us some idea of the numbers involved. I do not know whether we are talking about a few unusual cases or a larger number. If we start to include spouses or exes, the numbers could rise considerably.

Photo of Greg Knight Greg Knight Conservative, East Yorkshire

Lords amendment No. 167 is highly discriminatory or defective because proposed paragraph (b) refers to the bankrupt's spouse in the singular. What about polygamous marriages and the Mormon faith?

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

My right hon. Friend is trying to draw me into territory that I am reluctant to enter. In turn, however, will he clarify something for me as a distinguished lawyer? Is he suggesting that polygamous marriages are sufficiently legal in our culture to be encompassed by the amendment? My lay interpretation is that in our Judaeo-Christian tradition the amendment can apply only to one spouse, not multiple spouses as he suggests. I should be grateful if my right hon. Friend would consider something. It is possible that under proposed paragraph (c) there would be multiple ex-spouses—that possibility does arise in the Judaeo-Christian tradition and our legal framework. My right hon. Friend was therefore half-right, but was looking at the wrong paragraph—he concentrated on proposed paragraph (b) instead of (c). I shall allow him to think about that while giving way to my hon. Friend Mr. Field.

Photo of Mark Field Mark Field Conservative, Cities of London and Westminster

I may be able to assist. Polygamous marriages are not recognised in English law, but my right hon. Friend is a polygamous politician. Not only has he represented Bromley and Chislehurst but a Worcestershire seat and another seat in the European Parliament. Our right hon. Friend Mr. Knight is also polygamous, having previously represented Derby, North.

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. Before the right hon. Gentleman responds to that intervention, I remind him that he should stay tightly on track.

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

Of course I shall, Mr. Deputy Speaker. Uncharacteristically, however, my hon. Friend underestimated me, as he forgot that I was a local councillor in Brentwood in Essex back in the 1960s. My multiplicity is almost unlimited, but it would be immodest of me to dwell on it—the House knows that that would be uncharacteristic.

However, I wish to return to the remarks of my right hon. Friend the Member for East Yorkshire, which applied strictly to the amendment. The Minister, as happens from time to time when we are deliberating on such matters, tried to give the impression that we were considering a technicality—we were talking about a few words that would have little effect, and that we would have a quick glance at the provision and nod it through. I suspect that we are only scratching the surface and have an inkling that the provision could be problematic, as we do not know what its scope is. We need the Minister's guidance as to whether the provision is restrictive or permissive.

Photo of Jonathan Djanogly Jonathan Djanogly Conservative, Huntingdon

In his interesting speech, my right hon. Friend mentioned the cultural differences between America and the United Kingdom on the question of bankruptcy, an issue that was discussed at some length during deliberations on the Bill. One implication of the personal insolvency provision is that the insolvency period will be cut from three years to a maximum of 12 months, which has caused great concern to many of my hon. Friends and practitioners in the insolvency world. People are saying that we may move towards an American system—if you cannot pay your bills, why not just go bust and do the same thing afterwards? It would be interesting to hear my right hon. Friend's comments.

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

My hon. Friend puts his finger on an important matter, which I intended to deal with later in my remarks, but I shall do so now. Of course the time scale is relevant, in both a general sense and a specific sense. The word Xformer" is important. We could get into some difficulty—I refer to my hon. Friend's remarks about time scales—about the exact point at which the spouse becomes Xformer." My right hon. Friend the Member for East Yorkshire may be able to help us.

When we get into the territory of nisis and absolutes, it is possible that considerable confusion could arise from the amendment as regards the exact impact of the timing of the divorce and the point at which it takes effect within the time scale that is envisaged. In one sense, it does not matter whether we are speaking of one year or three, but in another sense it does. If we are talking about longer time scales, the impact of the divorce and the legal impact of nisis and absolutes must be taken into account.

Photo of Greg Knight Greg Knight Conservative, East Yorkshire

My interest is rather in the scope of the Lords amendment. My hon. Friend Mr. Djanogly touched on the widening provision of amendment No. 167. The question that the House must ask, and which I hope my right hon. Friend Mr. Forth will address, is whether the widening goes far enough or too far. The problem that we have had for too long under English law is the stigma associated with bankruptcy, which, as my hon. Friend the Member for Huntingdon properly said, does not apply in America. Not many people know that early in his career, the very successful and popular worldwide entertainer, Dean Martin, was made a bankrupt.

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. Not many people may know that, and I am not sure that at this stage the House wants to hear it.

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

I shall not break into song, although I am a bit of a fan of Dean Martin myself. The serious point is that the more we probe the amendment, the more troublesome it begins to appear.

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

I have probed gently so far; wait till I really get going. The difficulty that we are getting into, which I hope the Under-Secretary will deal with in detail and at some length, is the subtle interplay between the mechanisms of the divorce in the case of the former spouse referred to in the amendment, and the bankruptcy proceedings.

Photo of Mr Tony McWalter Mr Tony McWalter Labour/Co-operative, Hemel Hempstead

Will the right hon. Gentleman note that the reference is to a dwelling house, which must be comprised in the bankrupt's estate? We are discussing one way in which people can be protected from the seizure of their home. That is all.

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

I am grateful to the hon. Gentleman for seeking to simplify matters for me. I am a simple man, as he knows. I can see that he is trying to come down to my level, to help me to understand the provisions, but I am still struggling with the interplay, which I am sure exists, between the estate, the period of bankruptcy and the legal moment of bankruptcy. We are attempting to relate that to another variable, the concept of the former spouse. I am sure that even the hon. Gentleman would agree that there are circumstances in which those factors could come into conflict. The legalities involved in the bankruptcy process, the estate and the process of divorce could come into conflict. That might not make the provision unworkable—that would be going too far—but could complicate it.

In my view, as the original wording was straightforward and easily understandable, it was also easily implementable. My fear about the amendment is that it would introduce considerable additional complications. I therefore wonder whether their lordships gave sufficient thought to it. After all, we are here to ask such questions. Indeed, they demonstrate the great value of the two-Chamber parliamentary system. Their lordships, to whom we defer in so many ways, have, in their wisdom, proposed the amendment. Our humble role as laymen—I exclude my right hon. Friend the Member for East Yorkshire, who is an expert—is to cast our eye over each provision and say, XHold on a minute: is this too clever, does it go too far and would it work in practice?" In this case, we must consider whether the provision would simply be—if my right hon. Friend will forgive me—a lawyers' charter.

Photo of John Redwood John Redwood Conservative, Wokingham 9:15 pm, 30th October 2002

I usually agree with my right hon. Friend, but I wonder whether he has misread the situation. There could be a hard case that is not covered in the original words, which deal merely with the bankrupt's home. We should remember that these issues are governed by the beginning of new section 283A to the Insolvency Act 1986, which deals with the bankrupt's home ceasing to form part of the estate. I read the amendment as a helpful one that tries to explain that there could be hard cases if properties relating to the bankrupt's spouse or a former spouse are not excluded. I understand his asking where that should stop, how far back it would be possible to go and what would happen if one had several former Xspice" or spouses, or whatever the plural might be. It is reasonable to ask whether such provision could become unnecessarily complicated or lax, but I hope that he will consider the possibility that a hard case might arise that the amendment would take care of, but the rather odd alternative drafting might not.

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

I am grateful to my right hon. Friend, who is of course right. Will he not concede, however, that when we are trying to deal with one hard case, we often introduce at least as many difficulties, problems or even harder cases?

We touched earlier on the possibility of serial ex-spouses. I am not sure whether the amendment deals satisfactorily with that possibility. It refers to

Xa former spouse of the bankrupt", but what about the plural? With which former spouse does the provision deal? Is it the most recent spouse, the first one or all of them? The amendment allows reference to only one former spouse. Again, I accept that I am treading on delicate legal territory, but I wonder whether such provision is sufficient and whether the scope is adequate to deal with those issues, quite apart from problems of timing.

Photo of Greg Knight Greg Knight Conservative, East Yorkshire

My concerns are different from those of my right hon. Friend. He seems to be anxious that the amendment is too loosely drafted and could encourage too many claimants. My concern is that, if there is any criticism to be made, it is that the amendment is too tightly drawn. What about the dependent relative of the bankrupt? The amendment contains no provision in that regard.

May I say en passant that, in view of your earlier ruling, Mr. Deputy Speaker, I doubt whether you will be receiving a Christmas card from the Dean Martin Appreciation Society?

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

May I suggest that the society might like to send a card to you, Mr. Deputy Speaker, in order to bring you round? A CD might help as well, perhaps including XMemories are Made of This" or something similar. I shall not pursue the matter any further.

I recognise that my right hon. Friend is trying to be helpful, but we need to focus and should not be drawn into seeking ways of over-complicating a matter that is already somewhat over-complicated. I am beginning to wonder whether the amendment is entirely appropriate. It strikes me that, even though it is a well-meaning attempt—their lordships could not have a motive that was anything other than well meaning—to solve one set of problems, we might be in danger of creating even more.

Photo of Jonathan Djanogly Jonathan Djanogly Conservative, Huntingdon

I appreciate that my right hon. Friend has already opined on polygamy, but I wonder whether he has considered legitimacy, which is often a problem in wills?

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

I do not know whether that is a problem with the provision that we are considering. It would be if we incorporated the suggestions that my right hon. Friend the Member for East Yorkshire made a moment ago. However, I suspect that the wording is sufficiently tight to obviate the problem because we are considering Xthe spouse" or Xformer spouse".

There is a problem with the former spouse; the serial ex presents a difficulty. However, the problem of definition is not that suggested by my hon. Friend Mr. Djanogly because a spouse is a spouse is a spouse.

I hope that we shall not unearth another problem; that would be too much. However, would a marriage conducted in another legal jurisdiction cause difficulties in the definition of Xspouse"? I am happy to say that I was married in New Mexico, and it was a wonderful experience. I do not know whether there would be any difficulty in recognising the marriage in our United Kingdom jurisdiction. Perhaps my right hon. Friend the Member for East Yorkshire can help me.

The simple use of the word Xspouse" is either legally sufficiently watertight to obviate any definition problems or in danger of introducing further difficulties.

Photo of John Redwood John Redwood Conservative, Wokingham

I cannot help with that point, but I am worried about an ambiguity on which my right hon. Friend may like to comment. It appears that we have to choose between Xthe bankrupt's spouse" and Xa former spouse". That could be invidious, but whether paragraphs (a) and (b) or (a) and (c) of Lords amendment No. 167 can apply simultaneously is left ambiguous because Xand" or Xor" are not included after paragraph (a). Is the amendment therefore defective?

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

I believe that I can help my right hon. Friend. The potential conflict between paragraphs (b) and (c) or the existing spouse and the former spouse is obviated by the word Xor" in paragraph (b). However, that introduces another problem. I presume that there is an order of priority, and one spouse must pre-empt the other. The existing spouse will probably take precedence over the former, or any number of former spouses, but perhaps the Minister will explain whether she is satisfied that the amendment is sufficiently clear and therefore immune from challenge.

Photo of Greg Knight Greg Knight Conservative, East Yorkshire

I hope that my right hon. Friend will forgive me, but I believe that, uncharacteristically, he is making heavy weather of the matter. I appreciate that his friends will not recognise that description of his contribution, but he is labouring the issue. We are considering the provision that applies when

Xproperty comprised in the bankrupt's estate consists of an interest in a dwelling-house".

If we are dealing with a former spouse of several years, surely the court, in the divorce proceedings, will have settled the property on the former spouse. It is therefore no longer in the amendment's ambit.

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

I am grateful to my right hon. Friend for helping us. I was about to consider the definition of the estate and whether there was potential difficulty in the probate stage that existed at the time of the bankruptcy. There are potential problems throughout the process in the time scales for various legal matters. Anyone who has experienced probate, divorce or any combination of those understands that they are inevitably lengthy and complex matters that must interplay in the circumstances that we are discussing. Even something as apparently simple as the concept of the bankrupt's estate must be open to doubt, because it would depend on any number of interrelationships, perhaps involving the bankrupt being the potential beneficiary of probate, on the one hand, or the other way round, if I can put it that way.

Photo of David Winnick David Winnick Labour, Walsall North

Can the right hon. Gentleman satisfy my curiosity by telling me whether he has resigned from the Front Bench as shadow Leader of the House? If he has not, is his sitting on the Back Benches a new feature—and why not? It could all be part of modernisation—in which he doubles up, appearing on the Front Bench as a senior Member one day, and on the Back Benches the next? The other rumour is that all this is simply a ruse to keep the House going until 10 o'clock.

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

The hon. Gentleman is being uncharacteristically unfair.

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

Well, I am going to be fair to the hon. Gentleman and I would not accuse him of being anything other than fair and a man of great integrity. It saddens me, therefore, that he seems to suggest that my motive is anything other than to seek the truth—after all, that is why we are all here—and examine the legislation, which I thought was also our job. As for his questioning my role, the modern Conservative party is flexible and progressive, and it allows a number of different roles to be played by right hon. and hon. Members.

I have taken an interest in this matter, and the view that I took, having listened to the Minister's brief introduction to the amendment, was that it was perhaps slightly inadequate. So I am simply playing my role as a seeker of truth and a legislator, and I shall give way to Mr. McWalter, who, I suspect, comes into the same category.

Photo of Mr Tony McWalter Mr Tony McWalter Labour/Co-operative, Hemel Hempstead

In my desire to get this matter curtailed, may I ask the right hon. Gentleman to bear it in mind that, if someone had loads of houses and loads of spouses, subsection (3) would come into play? The interests would be realised, people would get a share of the action, and out of that mess everything would eventually be settled. This provision involves a right that people would have in extremis. It is not designed to be—it could not be, because of subsection (3)—a way of liquidating all one's assets to try to ensure that one's creditors could not get at them.

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

I am grateful to the hon. Gentleman. This amendment will henceforward be known as the Xhouses and spouses amendment", which will help to fix it in our memories. As for Xin extremis", I am rarely accused of being in extremis in any context.

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

I will give way, but then I really must draw my remarks to a conclusion, because I want to give the Minister the maximum possible time. She might need all the time that is left to us to answer the questions that have been posed.

Photo of Greg Knight Greg Knight Conservative, East Yorkshire

I am not sure that that last intervention was particularly helpful. What would happen in the case of a bankrupt who had three houses that formed part of his estate, if he lived in one of them, his spouse lived in another, and a former spouse lived in the third?

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

My right hon. Friend has made a valuable contribution in pointing out the difficulties that could arise from this no doubt well-meaning amendment.

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

I will give way, but this really must be the last time.

Photo of Mark Hoban Mark Hoban Opposition Whip (Commons)

This has been an interesting debate on the terminology used in the amendment. The debate has confined itself to talking about legally recognised relationships. In our modern society, it is remarkable that there is no reference in the provisions to the position of cohabitees or former cohabitees. Does my right hon. Friend not agree that they, too, should be covered by the Bill?

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

I almost hesitate to get into that territory. My hon. Friend tempts me, but I shall resist the temptation except to say that he has illustrated that, if we look at this matter in a modern way—after all, we look at things in a modern way in the House, do we not?—it may seem to be taking an overly restrictive approach. We hear all sorts of talk these days about partners, and we ought perhaps to give some thought to whether unmarried people come into this. I have not even touched on the matter of gender, either. After all, we talk of people of this or that gender having this or that relationship. I wonder whether the amendment is sufficiently broadly drawn to satisfy those with a modern and progressive attitude on these matters, and whether the issue of gender should be dealt with in the legislation.

I am grateful to my hon. Friend Mr. Hoban, because he has added yet another dimension to the considerations that are raised by the amendment, which at first blush seemed to be perfectly straightforward. It now seems that there are worrying complications, and I hope that the Minister, when she concludes this little debate, will satisfy the House that she has the answers to all these questions, so that we can decide whether to give the amendments our approval. I hope that that will be the case, and that my modest contribution has helped the House to focus on some of these questions.

Photo of John Redwood John Redwood Conservative, Wokingham 9:30 pm, 30th October 2002

I shall not detain the House long, but I think that my right hon. Friend has put his finger on some difficult issues raised by the amendment. The context is clear. The Bill provides for a new section 283A in the Insolvency Act 1986 when the bankrupt's home ceases to form part of the estate. It says:

XThis section applies where property comprised in the bankrupt's estate consists of an interest in a dwelling-house which at the date of the bankruptcy was the bankrupt's sole or principal residence."

The aim of amendment No. 167 is to amend and broaden that proposal.

In the light of my right hon. Friend's remarks and the study that I have made of this matter as he was speaking and before, I have worries that the amendment, while generous in intention by including spouse or former spouse, leaves ambiguities and difficulties that may make the legislation even less perfect than the original version. The thrust of the amendment may be sensible, but the drafting is not as felicitous as it might be.

My first worry is that it is by no means clear whether we are talking about the principal residence of the bankrupt and the bankrupt's spouse if they happen to have different residences, or whether we have to make a choice. Secondly, the draft clause is silent on how people in positions of responsibility should determine a case if they have to choose between the residence of the bankrupt's spouse or a former spouse. My right hon. Friend has made some reflections on that, but I think that the legislation, if it is to widen the provision in that way, should give more guidance on how these invidious choices may fall to be made.

The drafting is not as inclusive or modern as some Labour Members and others may like. I have no objection to the use of the word Xspouse", but these days people often prefer the word Xpartner" because they want to cover a variety of relationships that could be important to the individual concerned. It is strange that the legislation should look backwards, especially under this Administration. My right hon. Friend Mr. Knight asked whether it is right to single out a former spouse rather than some other dependent relative, because there could be more deserving cases. There could be difficult cases of people with important responsibilities who have become bankrupt. That has not been included in the amendment to this part of the revised bankruptcy legislation.

I hope that the Minister will deal with the detail when she replies to this vignette of a debate. It shows that the House has an important role to play in examining the words in detail, and that, when and if they are let loose in a court, there could be scope for intelligent, well-briefed and expensive lawyers to go round and round in the interests of the person they are defending and show that we the legislators have been sloppy or negligent by allowing these ambiguities and imprecisions to remain in the legislation.

Photo of John Redwood John Redwood Conservative, Wokingham

I shall give way to my hon. Friend, but we are running out of time.

Photo of Jonathan Djanogly Jonathan Djanogly Conservative, Huntingdon

I note with interest the thought processes of my right hon. Friend in respect of changing the word Xspouse" to Xpartner". I should like to hear more of his views on that subject, because I am not sure that Xpartner" has the same meaning in law as Xspouse", or, indeed, any meaning.

Photo of John Redwood John Redwood Conservative, Wokingham

I ought not to be drawn too far down this interesting byway, as there are others better qualified to comment. My hon. Friend may well be right to say that the word Xpartner" has a legal imprecision. I simply raise the issue for the Minister because it is one of concern for a Government who pride themselves on being modern and inclusive. I am particularly worried about the issue of substance that I raised: are there other people in relationships with the bankrupt apart from a spouse or a former spouse—in the latter case, the relationship might be far from close or friendly—who should be included in, or excluded from, this very important provision?

The legislation is complicated and leaves considerable discretion in the hands of those dealing with the bankruptcy issue. In certain cases, the clause that we seek to amend leaves the timing imprecise. A three-year period is mentioned, but the trigger time varies, depending on what information has been revealed, and on the circumstances of the individual bankruptcy. Of course, those called to adjudicate these matters have considerable powers of discretion as to how the bankruptcy estate should be handled and added up, and what element should cease to form part of it.

Photo of Greg Knight Greg Knight Conservative, East Yorkshire

Does my right hon. Friend accept that the discretion to which he refers does not extend to allowing any adjudicator to substitute words that are not included in the amendment? That is its weakness: it does not refer to partners or to a dependent relative. There would be no discretion whatsoever, therefore, in terms of taking care of a dependent relative or a long-term partner, because the drafting does not include that description or category of person.

Photo of John Redwood John Redwood Conservative, Wokingham

That is right—that is part of the twin criticism that I am making. People are excluded who might be more deserving than those who are included, but there is also a fundamental ambiguity in the phrases Xspouse" and Xformer spouse". Moreover, there are other complications to which reference has been made at some length, and which I will not repeat. If the provision were to go through, it would not be good legislation. To be good legislation, it needs amending to make the intention absolutely clear. I join my right hon. Friend Mr. Forth in asking the Minister to think again about those who should be included.

This legislation is about people who have been through a miserable time. They may also have created misery for others—their creditors—who may not be satisfied. It is the job of good legislation to try to come up with a fair and judicious balance. Of course, we wish to be as generous as possible to the creditors, because they have been wronged. If we do not look after their interests, they, in turn, could get into financial difficulties, or their businesses could struggle. However, we also have a duty—as I hope my right hon. Friends the Members for Bromley and Chislehurst and for East Yorkshire agree—to think about the condition of the bankrupt. Some bankrupts have been through extremely difficult times; for example, they may have made a misjudgment, or simply been swallowed up by bad luck and unpredictable changes in the marketplace. They need to live and survive, and to have some reasonable basis on which to proceed with their own lives. I understand that this legislation is trying to strike some form of balance—

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. The right hon. Gentleman's remarks are becoming rather general. He ought to be a bit more precise.

Photo of John Redwood John Redwood Conservative, Wokingham

I quite agree, and I stand corrected, Mr. Deputy Speaker. I was trying to describe the context, but my crucial point is that the amendment has to get the right balance between the bankrupt and those dependent on him, and the creditors. My worry is that it does not. It does not answer the big issue as to why this limited group of people is included, but not others who may be in need. It is unclear whether subsection (a) applies with, or instead of, subsection (b), and it is also unclear how one would judge between subsections (b) and (c). A lot is therefore left to the courts, and it leaves open the question of how, ultimately, the balance is to be struck between the bankrupt's needs of his estate, and the creditor's obviously pressing needs. It is those points that I hope the Minister will clarify.

Photo of Miss Melanie Johnson Miss Melanie Johnson Parliamentary Under-Secretary, Department of Trade and Industry

I am grateful to Opposition Members for their enormously discursive interest in this subject. I shall respond briefly to the points that have been made, because despite speaking at considerable length the right hon. and hon. Members have failed to convince me that the aspects that worried them are sufficiently worrying to require a detailed response. Indeed, it is not clear what some of those anxieties were, but I shall not take any interventions from Opposition Members during my remarks.

In relation to the comments by Mr. Knight, the Bill provides that the income payments agreements must be in writing and, therefore, we felt that it was appropriate to provide that a variation of that agreement should be in writing. The incomes payments agreement has the force of a court order and is not merely a contract, as he suggested; his points might have been relevant to a contract.

Lords amendment No. 167 attracted much heat but not much light. It provides valuable protection for a spouse or former spouse. Mr. Redwood was right that it deals with a particular situation—if a bankrupt still has an interest in the property in which a spouse or former spouse resides, it provides protection against the threat of losing the home. Trustees will still be able to deal with the property. On unmarried partners, the amendment is consistent with the protection provided for parties other than the bankrupt in the individual insolvency provisions of the Insolvency Act 1986.

Photo of John Redwood John Redwood Conservative, Wokingham

It is an important point.

Photo of Miss Melanie Johnson Miss Melanie Johnson Parliamentary Under-Secretary, Department of Trade and Industry

It may be so. The mechanics of how the new provisions will operate have been, and continue to be, the subject of consultation with stakeholders and will be dealt with in the rules.

As I have emphasised, the amendments are the results of the work done by the colleagues of Opposition Members in the other place. I am amazed by the suspicion with which the amendments have been greeted, but I hope that Opposition Members have been reassured on those points.

Lords amendment agreed to.

Lords amendments Nos. 167 to 175 agreed to.

Lords amendments Nos. 176 to 186 disagreed to.

Lords amendments Nos. 187 to 208 agreed to.

Lords amendment No. 209 disagreed to

Government amendment (a) in lieu of Lords amendment No. 209 agreed to.

Lords amendments Nos. 210 to 264 agreed to.