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Section 1 — Application to suspend enforcement of standard security

Mortgage Rights (Scotland) Bill: Stage 3 – in the Scottish Parliament at 2:46 pm on 20th June 2001.

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Photo of Cathie Craigie Cathie Craigie Labour 2:46 pm, 20th June 2001

Amendment 1 extends to a non-entitled spouse the right to apply to the courts under the bill when they live in the property with the debtor or proprietor. The bill allows a non-entitled spouse—a term that derives from the Matrimonial Homes (Family Protection) (Scotland) Act 1981 and refers to spouses who are not the owner of the property—to apply to the court under the bill when the property is their sole or main residence but not the residence of

"the debtor, or, as the case may be, the proprietor."

The bill also refers to spouses who are not the owner of the property.

The 1981 act gives non-entitled spouses automatic occupancy rights to the matrimonial home. The Mortgage Rights (Scotland) Bill will protect non-entitled spouses when a couple has separated, for example, by giving non-entitled spouses the opportunity to apply to the courts in the same way that debtors can. That complements the 1981 act, which gives the court the power to order that the non-entitled spouse shall take on the mortgage payments instead of the entitled spouse, who is the debtor. That was intended to prevent separated spouses from taking no action to avoid repossession while no longer being resident in the property.

Amendment 1 is linked to amendment 2, which we will discuss with group 2. As I would like to avoid repeating myself and debating the same issues twice, I have tried to keep my remarks about amendment 2 brief. Following debate in the Social Justice Committee at stage 2, I agreed to lodge amendments at stage 3 to allow partners who are not debtors to apply to the court under the bill. Amendment 2 will allow partners to apply to the court when the debtor remains in the property, as that reflects the occupancy rights that non-entitled partners in opposite-sex couples have under the 1981 act.

I was keen to avoid an imbalance in the bill. Amendment 2 allows a partner to apply if they are resident with the debtor. However, if no amendment is made to the current provisions, a non-entitled spouse could not do that. To ensure consistency in approach—and because it has merit in its own terms—I decided to lodge amendment 1. It seeks to allow the spouse of the debtor to apply to the court under the provisions of the bill, even if the property is the sole or main residence of the debtor—or the proprietor, if different.

Although, in most cases, it is likely that non-entitled spouses will wish to apply only when the debtor is not resident, there may be other cases where they would prefer to take the lead: for example, if the non-entitled spouse is the main breadwinner. It is only right to allow for that possibility and I believe that amendment 1 achieves that aim.

I move amendment 1.

Photo of George Reid George Reid Scottish National Party

At this point, no members have indicated that they wish to speak, although it may be that the cards are not reading correctly. I have one or two members showing up on screen now.

Photo of Brian Adam Brian Adam Scottish National Party

I thank Cathie Craigie for her explanation of amendment 1. She rightly pointed out that as amendment 1 was associated with the second grouping, she did not intend it to stand alone. I would have preferred to deal with it in those terms, although I can see why it might stand on its own. However, someone else made that choice for us, although amendment 1 would not have arisen without amendments 2, 3, 5, 7, 8 and 9. I have concerns about the overall groupings, but I will deal with those as we move through each group of amendments. Amendment 1 should not be dealt with independently, as it does not stand on its own.

Photo of George Reid George Reid Scottish National Party

I call Mr Aitken. He is masquerading on my screen as Mr McLetchie, but so be it. [ Laughter. ]

Photo of Bill Aitken Bill Aitken Conservative

I am the good-looking fellow.

The point that Brian Adam made was apposite. For amendment 1 to stand on its own does not lead to a well-structured debate. As we are debating an entirely worthwhile piece of legislation this afternoon, it is not my intention to delay the chamber. I will reserve my position until amendment 2 is debated, later on in the proceedings, when I wish to debate the matter at greater length.

Photo of George Reid George Reid Scottish National Party

I am a little nervous that my screen is not quite up to speed. If other members wish to speak will they please raise their hands? As no other member wishes to speak, I call the minister.

Photo of Margaret Curran Margaret Curran Labour

I will pass no comment on Bill Aitken's comparison to Mr McLetchie.

I recognise the points that have been made about the groupings, but we must deal with the debate as it stands. The Executive supports amendment 1 and the work that Cathie Craigie has done in considering how to take forward the stage 3 amendments that relate to the partner of a debtor. We can discuss those issues in more depth when we get on to the detailed group 2 amendments.

In a number of cases, to allow the spouse to apply while residing in the property with the debtor would provide an additional benefit. That would include the situation in which the debtor was working away from home for an extended period and could not apply him or herself.

We support Cathie Craigie's amendment.

Photo of Cathie Craigie Cathie Craigie Labour

I am sure that Bill Aitken and Brian Adam will understand that I have no influence over how the amendments are grouped. A big boy came along and did it and then ran away.

Amendment 1 will be of direct value in some circumstances and it will also ensure consistency, but I agree that the debate will be around amendment 2.

I ask the Parliament to support amendment 1.

Photo of George Reid George Reid Scottish National Party

The question is, that amendment 1 be agreed to? Are we agreed?

Members:

No.

Division number 1

For: Baillie, Jackie, Barrie, Scott, Boyack, Sarah, Brown, Robert, Butler, Bill, Canavan, Dennis, Chisholm, Malcolm, Craigie, Cathie, Curran, Ms Margaret, Deacon, Susan, Eadie, Helen, Ferguson, Patricia, Finnie, Ross, Fitzpatrick, Brian, Gillon, Karen, Godman, Trish, Gorrie, Donald, Grant, Rhoda, Gray, Iain, Henry, Hugh, Home Robertson, Mr John, Hughes, Janis, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Jenkins, Ian, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lyon, George, Macdonald, Lewis, Macintosh, Mr Kenneth, MacKay, Angus, MacLean, Kate, Macmillan, Maureen, Martin, Paul, McAllion, Mr John, McAveety, Mr Frank, McCabe, Mr Tom, McConnell, Mr Jack, McMahon, Mr Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Radcliffe, Nora, Raffan, Mr Keith, Robson, Euan, Rumbles, Mr Mike, Scott, Tavish, Sheridan, Tommy, Simpson, Dr Richard, Smith, Elaine, Smith, Iain, Stephen, Nicol, Thomson, Elaine, Wallace, Mr Jim, White, Ms Sandra, Whitefield, Karen, Wilson, Allan
Against: Aitken, Bill, Davidson, Mr David, Douglas-Hamilton, Lord James, Ewing, Fergus, Ewing, Mrs Margaret, Gallie, Phil, Goldie, Miss Annabel, Harding, Mr Keith, McIntosh, Mrs Lyndsay, Monteith, Mr Brian, Mundell, David, Scanlon, Mary, Scott, John, Tosh, Mr Murray, Wallace, Ben, Welsh, Mr Andrew
Abstentions: Adam, Brian, Campbell, Colin, Crawford, Bruce, Cunningham, Roseanna, Elder, Dorothy-Grace, Ewing, Dr Winnie, Gibson, Mr Kenneth, Hyslop, Fiona, Lochhead, Richard, MacAskill, Mr Kenny, MacDonald, Ms Margo, Marwick, Tricia, Matheson, Michael, McGugan, Irene, McLeod, Fiona, Morgan, Alasdair, Neil, Alex, Paterson, Mr Gil, Quinan, Mr Lloyd, Stevenson, Stewart, Sturgeon, Nicola, Swinney, Mr John, Ullrich, Kay

Photo of George Reid George Reid Scottish National Party

The result of the division is: For 68, Against 16, Abstentions 23.

Amendment 1 agreed to.

Photo of George Reid George Reid Scottish National Party

Amendment 2 is grouped with amendments 3, 4, 5, 7, 8 and 9.

Photo of Cathie Craigie Cathie Craigie Labour

This group of amendments provides partners—whether they are of the same or the opposite sex—with the right to apply to the court in certain circumstances. It also ensures that section 1(3A), which requires the consent of the debtor or proprietor and the non-entitled spouse before varying the period in which an application can be made, and the notices in the schedule are updated to take account of that change.

At stage 2, Robert Brown lodged a group of amendments that sought to provide non-entitled partners with the right to apply to the courts in the same manner as non-entitled spouses can under the current provisions. During our discussions at stage 2, I indicated that I accepted the general principle of extending rights to non-married partners, but noted that some issues would need to be considered in more depth before amendments were lodged at stage 3.

The Matrimonial Homes (Family Protection) (Scotland) Act 1981 defines non-entitled partners as cohabiting couples of the opposite sex and allows for certain occupancy rights. The non-entitled partner has to apply to the court for those rights. If the couple splits up, a non-entitled partner who remains on the property without the debtor is unable to apply for such rights, because the couple is no longer cohabiting. There is no provision for occupancy rights for same-sex couples. That said, although some non-entitled partners may not have occupancy rights under statute, they may well occupy the property with the consent of the debtor.

Throughout the process, I have sought to ensure that the bill complements the existing legal framework. I have been clear that any change to the occupancy rights of non-entitled partners would be outwith the scope of the bill. My amendment therefore seeks to fit into the framework provided by the Matrimonial Homes (Family Protection) (Scotland) Act 1981. Amendment 2 seeks to extend the right to apply to partners who live in the property with the debtor, to reflect the fact that partners may occupy the property with the debtor's consent or may have rights under the 1981 act. I indicated at stage 2 that where a partner has responsibility for children, the situation justifies their having similar rights under the bill as non-entitled spouses.

Amendment 2 also provides that partners who do not reside with the debtor—usually because the debtor has left—will have the right to apply to the courts if the partner and the debtor have lived together in a relationship for at least six months and have children under the age of 16 who remain in the property with the partner. The criteria proposed in amendment 2 will avoid others using the provision as a loophole and applying to the court when they do not have a genuine right to do so.

Amendments 3, 4 and 5 are technical and are consequential to amendment 2. They are designed to ensure that a proprietor or debtor cannot shorten the period of notice in a calling-up notice to disadvantage their partner. Where the lender has issued a calling-up notice or notice of default, the bill gives those entitled to apply two months to do so. One month of that application period can be dispensed with or the period shortened with the consent of the debtor or proprietor and the debtor or proprietor's non-entitled spouse. That provision recognises cases in which the debtor has had enough and wants to minimise the arrears that are building up. However, if a debtor or proprietor chooses to shorten the period to minimise their arrears, we must ensure that other parties who may have a right to make an application under the bill are not prejudiced.

The bill was amended at stage 2 to ensure that, if the period is to be shortened, that may happen only with the consent of the debtor or proprietor and of their non-entitled spouse. Amendments 3, 4 and 5 extend the requirement to seek the consent of a partner who is eligible to apply under the provisions of the bill. Amendment 3 makes provision in cases where the lender has issued a notice of default and amendments 4 and 5 deal with circumstances in which a calling-up notice has been issued.

Amendments 7, 8 and 9 are also consequential to amendment 2. The bill currently provides that new notices, explaining people's rights under the bill, must be sent to the debtor and the occupier in every case in which the creditor calls up the security or in which the debtor is in default. The notice to the occupier currently has separate information for tenants or for the spouse of the debtor and advises that they may have rights under the Mortgage Rights (Scotland) Act 2001 and that they should seek legal advice. Amendments 7, 8 and 9 extend that information to the partner of the debtor, so that the issuing of notices is consistent with other provisions.

I move amendment 2.

Photo of Brian Adam Brian Adam Scottish National Party 3:00 pm, 20th June 2001

I thank Cathie Craigie for the opportunity to discuss with her and her advisers the background to this group of amendments. I would like to say at the outset that I see no problem whatever with amendment 4, which is a technical amendment. I accept that a number of the amendments are consequential to the principles of amendment 2.

I am still not wholly convinced of the validity of amendment 2 or that it will achieve everything that Cathie Craigie set out to achieve without making life even more difficult for the debtor. The Council of Mortgage Lenders raised a number of concerns, which it continues to hold. It is true that we debated the principle behind the group when we considered a number of amendments lodged by Robert Brown at stage 2. Unfortunately, we have seen today's group of amendments only in the past day or two, and it is always difficult to get things absolutely right in such a short time scale. It might have been better to have an opportunity for wider consultation on the detail of the amendments at an earlier stage, but I make no personal criticism of Cathie Craigie.

The technical points relate to the fact that the provisions may, now that third parties will be involved, impinge on the rights of the lender and the debtor. The rights of third parties are being extended; they will have the right to intervene, which they did not have before. I recognise that major efforts have been made to dot the i's and cross the t's to ensure that we are not extending those rights in a way that would lead to significant delays for a large number of people who are trying to sort out their financial problems and want to draw matters to an end, but there are concerns about how the procedure, which people inevitably will use—that is why it is there—will be applied in practice.

The ministers should give us an assurance that when guidance is issued to sheriffs—as is normal practice—it will be discussed with the appropriate parties, in particular the Council of Mortgage Lenders, and will come before the appropriate committee. Such assurances would help a number of members on the SNP benches.

Can we also have a guarantee that there will be a review of how the bill works in practice? That should go to the Social Justice Committee.

The Council of Mortgage Lenders' concerns are wide-ranging. It is concerned that we may be offering greater rights to non-spouses than to spouses. The council may be right or wrong, but I am willing to hear the arguments from the promoter of the bill and the minister, if she is prepared to support the bill.

The process is different from the one for the Housing (Scotland) Bill. The Mortgage Rights (Scotland) Bill is not just about succession rights, with which the Housing (Scotland) Bill dealt; potentially, it will impinge on other matters, in particular, the contract between the lender and the debtor and the rights of third parties who have no direct responsibility for the debt.

The motivation behind the bill is right and, broadly, we sympathise with its aims, but there are some technical points on which I would like guidance from the minister and the promoter.

Photo of Bill Aitken Bill Aitken Conservative

Amendment 4 is a technical amendment and amendments 3, 5, 7, 8 and 9 are consequential to amendment 2, so I intend to address my remarks chiefly to amendment 2, which clearly causes some concern.

I have talked before about defining the terms of a relationship that has all the characteristics of the relationship between a husband and wife, but in which the persons are of the same sex. As the minister will recall, when I raised the matter before, I found it difficult to see how that definition could be made. The intention of the bill is to deal with gay relationships. I have no particular difficulty with that, but I reiterate that I do not think that the definition has anything to commend it in terms of the law. I do not think that the definition will be recognised by the law.

My problem with amendment 2 is chiefly that certain rights will accrue to individuals who are to some extent at arm's length from the original difficulty. Brian Adam raised that point. Where there has been a breakdown in a relationship—conventional or otherwise—the person who finds themselves in difficulty due to the financial implications of being in serious mortgage arrears could attempt to cut their losses. If the amendment is passed, that person's aspirations could be thwarted. In some cases, there may be a moral justification for that, to satisfy the rights of the other party involved, but I am a little concerned that some relationships end acrimoniously and that an application could be made out of sheer spite or bloody-mindedness. I perhaps anticipate what the minister will say when I say that I accept that the sheriff would be entitled to take the circumstances into consideration in determining the matter, but I am a little concerned that there could be injustices and I would prefer that the amendment were not passed.

The other problem arises when a renunciation of occupancy rights has been signed at the inception of the loan, when the standard security was taken out. There is a clear difficulty if the matter is not resolved and it is not clear whether, if we allow amendment 2 to go through, the subsequent act would breach the Matrimonial Homes (Family Protection) (Scotland) Act 1981. I am grateful to Cathie Craigie for the opportunity to discuss that matter yesterday, when I raised my concerns with her. In the same constructive manner that she has adopted throughout the process, she attempted to get answers, but I am not entirely satisfied with them.

It would be regrettable if amendment 2 were to be included in the act. Even at this stage, the promoter of the bill should exercise a degree of caution. There might be advantages—and I mean this in the most constructive manner—in withdrawing the amendment. I will listen to what Cathie Craigie and the minister have to say.

Photo of Robert Brown Robert Brown Liberal Democrat

I thank Cathie Craigie for taking on board this aspect, which—as she rightly says—I raised at stage 2.

I am bound to say that the attitude taken to amendment 2 by the SNP and the Tories is somewhat niggardly. It does not seem to relate to reality. This is about a summary application; it is a speedy, summary procedure. The application will go to a hearing before a sheriff. We are not talking about proofs or long, drawn-out procedures. We are talking about a speedy procedure for getting decisions on the continued ability of people to live in their own homes. That is the central point that the chamber should recognise.

Amendment 2 aims to give people who have a certain connection with a household certain rights, similar to those that owners have. One difficulty is that they are not the people charged with the contractual responsibility of paying the mortgage on the house. I know that issues arise out of that, but they are fairly small ones given the time scales that we are talking about.

The amendments try to recognise the social reality of modern life. Social norms were different when the Matrimonial Homes (Family Protection) (Scotland) Act 1981 was passed. Now, more people live in other relationships than are married. That means that the majority of people do not have a marriage certificate to show the court to identify the specific legal relationship that they are in. That causes difficulties in procedure and practice. All the amendments do is give people the right to apply to the court in limited circumstances. Applying to the court is one thing; getting orders of the court is something else.

When the matter comes before the court, it will have to consider the background. It will have to consider who paid the mortgage, the situation, the reason for the debtor not being involved in the process and so on. With sufficient shrieval and solicitor training and background advice for the people involved, there is no reason why the situation should not be considered adequately—the circumstances in which it may arise are relatively limited.

Although there may be a technical difficulty—I appreciate that we have had representations from the Council of Mortgage Lenders—I do not think that it should be overstated. The provision relates to a period of weeks. It does not alter the substantive position, which relates to people who are substantially in deficit on their mortgage payments. The amendments aim to introduce greater equity, without causing the problems that might have existed with the wording of my original amendment, which was significantly wider than the wording of these amendments.

I support the amendments and I hope that the chamber will accept the logic of their being passed.

Photo of Alasdair Morgan Alasdair Morgan Scottish National Party 3:15 pm, 20th June 2001

Although I support the thinking behind the amendments, I am concerned about the first part of amendment 2 for two reasons.

First, the detail of amendment 2 came before us only yesterday. Because the Parliament is unicameral, if we agree to amendment 2 today, it will become law; it will not be chucked out because it is ultra vires or any such nonsense. As a result, this is our only chance to get it right. If there are any technical difficulties—as Robert Brown suggested—this is the only occasion on which we can cure them. In a Parliament that prides itself on consultation, it is a bit rich to lodge complex amendments that will be decided on once and for all on the following day. Who on earth has been consulted on the content of these amendments?

Photo of Cathie Craigie Cathie Craigie Labour

The amendments were lodged in good time—I am not sure whether it was done last Wednesday or Thursday. Furthermore, the issue was very fully discussed at stage 2. As a result, I do not want anybody to think that the issues were before either committee members or the Parliament for only a few days.

Photo of Alasdair Morgan Alasdair Morgan Scottish National Party

I was not trying to imply that the issue has not already been discussed in the Parliament, especially by its committees. However, I do not think that the detail of the specific amendments has been discussed, otherwise they would have been included in the bill long before now.

My second point relates to the specific wording of section 1(2)(c). We must give sheriffs clear instructions if they are to make decisions on such matters. A minister cannot simply write to sheriffs and say, "Here is my ministerial guidance"; it does not work like that. Sheriffs must interpret law and an appeal court might scrutinise parliamentary debates to understand what Parliament was thinking when it passed a particular piece of legislation. However, if the courts listen to the debate so far, they will have precious little to go on that will help them to interpret proposed section 1(2)(c). We have a duty to say what we mean by

"the characteristics of a relationship between husband and wife".

I am not going to make music hall jokes about those characteristics, but I do not think that that phrase is well-defined enough to be passed into legislation and to give a sheriff the guidance that will allow him or her to make a judgment. We should do better than that if we are going to pass legislation.

Photo of Margaret Curran Margaret Curran Labour

I must re-emphasise Cathie Craigie's point. There was substantial debate on the issues at stage 2, during which Robert Brown's significant contribution helped us to deal with those issues. Furthermore, at stage 2, we indicated the Executive's support for this group of amendments and recognised that Cathie Craigie had worked towards—and found—a suitable balance between the rights of debtors and the rights of debtors' partners and children.

I will pick up on a number of points that have been made in the debate. First, the CML was fully consulted throughout the bill's progress, and before the bill was introduced almost a year ago. In fact, that organisation made several helpful and constructive comments, some of which have been taken on board. The bill has been under discussion for a considerable time.

Bill Aitken said that a plethora of third parties could delay a possession action. That is not so. The bill includes criteria that must be fulfilled before a third party can apply for such action. The bill seeks to balance the rights of debtors and creditors. Spouses and partners also have important rights and should have the right to apply as third parties under the provisions of the bill.

Furthermore, the CML was advised of the stage 3 amendments relating to the rights of partners to apply to the courts, and was told that those rights would not affect occupancy rights or debtors' obligations under standard security. The CML has also been advised that renunciations will not be affected. A spouse will have the right to apply to delay a possession action even if they have signed a renunciation of occupancy rights, because the provisions that are proposed in the group of amendments do not affect the occupancy rights of the spouse.

On judicial training, I am delighted that Brian Adam is now—having been so resistant to it during the passage of the Housing (Scotland) Bill—advocating guidance. I will clarify exactly how the system will work. We can provide the relevant sections of the parliamentary reports to the Judicial Studies Committee for Scotland, together with a statement of the thinking behind the legislation, which should be taken into account in the compilation of guidance or training for sheriffs. That is standard practice, which means that the Judicial Studies Committee for Scotland will be aware of the concerns that have been raised in the debate.

Photo of Brian Adam Brian Adam Scottish National Party

Will the minister make that material available to the Social Justice Committee?

Photo of Margaret Curran Margaret Curran Labour

I am sure that Brian Adam and other members are aware that Jackie Baillie and I try to include the Social Justice Committee in all our efforts. There are provisos attached to judicial issues that I would need to check, in terms of caveats, but I will always do my best to include and consult that committee as appropriate. However, given the fact that this is a judicial issue, I shall have to double check before I do that. I will get back to Brian Adam on that.

It is important that we bear it in mind that this aspect of the bill draws on the Matrimonial Homes (Family Protection) (Scotland) Act 1981, as has been said. As I am sure that members are aware, that act is being reviewed with other family law, and it is not open to us to amend that legislation today. Cathie Craigie has drawn on existing rights under the 1981 act, which provides for cohabiting partners. In the bill, Cathie Craigie has taken into account the importance of protecting children when a relationship has ended, and we think that she has got the balance right.

It is worth noting that, in practice, partners—especially those who have responsibility for children—might well have made some provision to formalise a situation such as the group of amendments provides for. We expect the courts to take any such agreement into account when they consider the circumstances of cases. More generally, we expect the courts to consider the same issues in relation to partners who apply as they would for the current category of applicants in the bill. We also expect the courts, when they consider the circumstances of applicants, to consider debtors' circumstances as part of all the circumstances of cases. We understand that debtors would automatically be notified of proceedings under the rules of court.

Photo of Cathie Craigie Cathie Craigie Labour

Presiding Officer, you will acknowledge that several points have been made; I hope that you will allow me time to respond to them.

The group of amendments seeks to provide partners with the right to apply to the courts under the provisions of the bill in the circumstances as laid out, and to ensure that a partner is informed of his or her rights under the bill through the notice to occupiers. The amendments do not provide partners with occupancy rights; rather, they complement existing legislation. At the same time, they provide a level of protection for partners and their children in cases of mortgage repossession.

The amendments also seek to provide partners—where they can apply under the provisions of the bill—with similar protection to that which is currently provided to a non-entitled spouse, from a debtor's agreeing without their consent to shorten the time period for application. The amendments will ensure that the applications of all parties who might have a right to make an application under the provisions of the bill are not prejudiced. In all cases, the court will consider all the circumstances, including the views of debtors and creditors. The right to apply does not change occupancy rights or a debtor's obligation to a mortgage. [Interruption.] I apologise to members. There is a difficulty with my speaking console. I shall try to speak directly into the microphone.

Photo of Cathie Craigie Cathie Craigie Labour

I am just trying to make a point.

Photo of Dorothy-Grace Elder Dorothy-Grace Elder Independent

Will Cathie Craigie define what she means by partnership? Does she mean a relationship that has a sexual component or does she mean another kind of relationship?

Photo of Cathie Craigie Cathie Craigie Labour

We have heard enough about that. I will put on record exactly who would be able to apply under the provision. Bill Aitken and Brian Adam have raised the issue, and I have made myself a wee grid to make it simple.

How will spouses be affected by amendment 2? They will be able to apply to the courts if they live with the debtor. They will also be able to apply if they remain in the debtor's property, but have split up with the debtor, and they will be able to apply whether or not they have children. A cohabiting couple with no children will be able to apply if they live with the debtor, but they will not be able to apply if they do not live with the debtor, but remain in the debtor's property after they have split up. That is because they would not, in those circumstances, be a cohabiting couple. Same-sex couples with no children will be able to apply if they live with the debtor, but they will not be able to apply if they do not live with the debtor, but remain in the debtor's property after they have split up. Cohabiting couples and same-sex couples will have to prove that they have been living with the debtor for six months.

Cohabiting couples with no children will be able to apply to the courts if they live with the debtor. Same-sex couples with no children will be able to apply if they have split up with the debtor, but remain in the debtor's property. They must demonstrate that they have lived with the debtor for at least six months and that they still have joint responsibility for the children. I hope that members will feel that those provisions take account of every possible circumstance.

Brian Adam said that the CML raised a point about the loophole. That point has been raised extremely late and I do not think that there are any loopholes that people who are not entitled to apply to the courts and who do not deserve protection from the legislation will be able to use.

Photo of Brian Adam Brian Adam Scottish National Party

It is true to say that the point has been raised late, but that is a consequence of the fact that the detailed amendment, although timeous, was not available in time for us to consult on it properly. I ask the minister to encourage the Executive to review at an early stage the bill that is likely to be passed today to determine how the idea works in practice. If the CML's concerns are not appropriate, there will not be a problem. However, its concerns might be valid and I have heard from one source that debtors might have to pay an additional year's interest on a debt because of the delay in the payment of legal aid and other devices.

Photo of Cathie Craigie Cathie Craigie Labour

Interventions are supposed to be brief.

I have a great deal of respect for the CML and I have worked closely with the organisation during the consultation process. However, I am disappointed that that organisation gave a response only to this aspect of the bill, because that has not allowed members—who are obviously concerned about this matter—enough time to become convinced of the fact that the CML has got it wrong. Alasdair Morgan might be confused because members got a copy of the briefing paper only yesterday. I am sure that when they have had time to reflect on them fully, members will agree that the concerns that were raised by the CML are misguided.

Although I have a great deal of respect for the CML, I feel that it has got matters wrong in this circumstance. The bill will not allow a plethora of third parties to apply to the courts. I have stated clearly the protection that the bill will give to groups of people who will be entitled to benefit from the bill, as enacted.

I hope that members appreciate the length of time that was spent discussing the matter at stage 2. The Social Justice Committee—with perhaps one dissenter—agreed that the proposal should be implemented to ensure that everybody was treated the same way, regardless of whether they were married couples, same-sex couples or cohabiting couples.

Alasdair Morgan again mentioned the issue of the definition of the characteristics of a husband and a wife. That definition is included in the Housing (Scotland) Bill and the Adults with Incapacity (Scotland) Act 2000 and I do not recall there being a big discussion about that definition when that act was being dealt with. The definition is established and has been accepted by the Scottish Parliament.

Photo of George Reid George Reid Scottish National Party

I will allow a last-minute contribution from Dorothy-Grace Elder. I ask her to be brief, because I have to go back to Margaret Curran and Cathie Craigie after her.

Photo of Dorothy-Grace Elder Dorothy-Grace Elder Independent

I want to ensure absolute clarity and I would like either the minister or Cathie Craigie to respond. I respect the amount of work that Cathie Craigie has done but, in the definition of partnership, will her move protect a couple—two people living in a house—who have not come together on the basis of sexuality in their relationship? For instance, will it protect two elderly sisters who have lived together for years or a couple of old soldiers or former workmates? There are many different relationships that cause people to live together for decades. Does the word "partner" relate to sexuality in a cohabiting relationship or does it apply to people who have lived in a long-term and established partnership, whom I hope we are also trying to protect? If the definition does not apply to them, I ask the Executive to reconsider the provisions.

Photo of Margaret Curran Margaret Curran Labour

Cathie Craigie has outlined all the definitions of partnership. We discussed the matter, as Cathie Craigie said, at stage 2. The amendment clearly puts caveats into the bill in that it recognises established partnerships and relationships.

I remind members that the bill is about maximising rights, which is why we disagreed with the CML's point. The bill is about making sure that people's housing rights are protected. I strongly welcome the moves by Cathie Craigie and Robert Brown to maximise those rights.

I did not pick up every class of person in the long list that Dorothy-Grace Elder gave. My understanding is that rights will be protected. I will go back and check the Official Report. Dorothy-Grace Elder talked about soldiers, for example. I will need to check the position in relation to such people.

Photo of Cathie Craigie Cathie Craigie Labour

On the definition, husband and wife implies a partnership of a sexual nature. The amendments are concerned with that type of partnership.

Photo of George Reid George Reid Scottish National Party

The question is, that amendment 2 be agreed to. Are we agreed?

Members:

No.

Division number 2

For: Baillie, Jackie, Barrie, Scott, Boyack, Sarah, Brown, Robert, Butler, Bill, Canavan, Dennis, Chisholm, Malcolm, Curran, Ms Margaret, Deacon, Susan, Eadie, Helen, Elder, Dorothy-Grace, Ferguson, Patricia, Finnie, Ross, Fitzpatrick, Brian, Gillon, Karen, Godman, Trish, Gorrie, Donald, Grant, Rhoda, Gray, Iain, Harper, Robin, Henry, Hugh, Home Robertson, Mr John, Hughes, Janis, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Jenkins, Ian, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lyon, George, Macdonald, Lewis, Macintosh, Mr Kenneth, MacKay, Angus, MacLean, Kate, Macmillan, Maureen, Martin, Paul, McAllion, Mr John, McAveety, Mr Frank, McCabe, Mr Tom, McConnell, Mr Jack, McLeod, Fiona, McMahon, Mr Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Morgan, Alasdair, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Radcliffe, Nora, Raffan, Mr Keith, Robson, Euan, Rumbles, Mr Mike, Scott, Tavish, Sheridan, Tommy, Simpson, Dr Richard, Smith, Elaine, Smith, Iain, Stephen, Nicol, Thomson, Elaine, Wallace, Mr Jim, Watson, Mike, White, Ms Sandra, Whitefield, Karen, Wilson, Allan
Against: Aitken, Bill, Davidson, Mr David, Douglas-Hamilton, Lord James, Ewing, Fergus, Fergusson, Alex, Gallie, Phil, Goldie, Miss Annabel, Harding, Mr Keith, Johnstone, Alex, Matheson, Michael, McIntosh, Mrs Lyndsay, McLetchie, David, Monteith, Mr Brian, Mundell, David, Scanlon, Mary, Scott, John, Tosh, Mr Murray, Wallace, Ben, Welsh, Mr Andrew, Young, John
Abstentions: Adam, Brian, Campbell, Colin, Craigie, Cathie, Crawford, Bruce, Cunningham, Roseanna, Ewing, Dr Winnie, Gibson, Mr Kenneth, Hyslop, Fiona, Lochhead, Richard, MacAskill, Mr Kenny, MacDonald, Ms Margo, Marwick, Tricia, McGugan, Irene, Neil, Alex, Paterson, Mr Gil, Stevenson, Stewart, Sturgeon, Nicola, Swinney, Mr John, Ullrich, Kay

Photo of George Reid George Reid Scottish National Party

The result of the division is: For 72, Against 20, Abstentions 19.

Amendment 2 agreed to.

[Amendment 3 moved—[Cathie Craigie].]

Photo of George Reid George Reid Scottish National Party

The question is, that amendment 3 be agreed to. Are we agreed?

Members:

No.

Division number 3

For: Aitken, Bill, Baillie, Jackie, Barrie, Scott, Boyack, Sarah, Brown, Robert, Butler, Bill, Canavan, Dennis, Chisholm, Malcolm, Craigie, Cathie, Curran, Ms Margaret, Davidson, Mr David, Deacon, Susan, Douglas-Hamilton, Lord James, Eadie, Helen, Elder, Dorothy-Grace, Ferguson, Patricia, Fergusson, Alex, Finnie, Ross, Fitzpatrick, Brian, Gallie, Phil, Gillon, Karen, Godman, Trish, Goldie, Miss Annabel, Gorrie, Donald, Grant, Rhoda, Gray, Iain, Harding, Mr Keith, Harper, Robin, Henry, Hugh, Home Robertson, Mr John, Hughes, Janis, Jackson, Dr Sylvia, Jamieson, Cathy, Jamieson, Margaret, Jenkins, Ian, Johnstone, Alex, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lyon, George, Macdonald, Lewis, Macintosh, Mr Kenneth, MacKay, Angus, MacLean, Kate, Macmillan, Maureen, Martin, Paul, McAllion, Mr John, McAveety, Mr Frank, McCabe, Mr Tom, McConnell, Mr Jack, McGrigor, Mr Jamie, McIntosh, Mrs Lyndsay, McLeod, Fiona, McLetchie, David, McMahon, Mr Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Monteith, Mr Brian, Morgan, Alasdair, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Mundell, David, Munro, John Farquhar, Murray, Dr Elaine, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Radcliffe, Nora, Raffan, Mr Keith, Robson, Euan, Rumbles, Mr Mike, Scanlon, Mary, Scott, John, Scott, Tavish, Sheridan, Tommy, Simpson, Dr Richard, Smith, Elaine, Smith, Iain, Stephen, Nicol, Thomson, Elaine, Tosh, Mr Murray, Wallace, Ben, Wallace, Mr Jim, Watson, Mike, White, Ms Sandra, Whitefield, Karen, Wilson, Allan, Young, John
Against: Ewing, Fergus, Matheson, Michael, Welsh, Mr Andrew
Abstentions: Adam, Brian, Campbell, Colin, Crawford, Bruce, Cunningham, Roseanna, Ewing, Dr Winnie, Gibson, Mr Kenneth, Hyslop, Fiona, Lochhead, Richard, MacAskill, Mr Kenny, MacDonald, Ms Margo, Marwick, Tricia, McGugan, Irene, Neil, Alex, Paterson, Mr Gil, Stevenson, Stewart, Sturgeon, Nicola, Swinney, Mr John, Ullrich, Kay

Photo of George Reid George Reid Scottish National Party

The result of the division is: For 90, Against 3, Abstentions 18.

Amendment 3 agreed to.

Amendment 4 moved—[Cathie Craigie]—and agreed to.

Amendment 5 moved—[Cathie Craigie].

Photo of George Reid George Reid Scottish National Party

The question is, that amendment 5 be agreed to. Are we agreed?

Members:

No.

Division number 4

For: Aitken, Bill, Baillie, Jackie, Barrie, Scott, Boyack, Sarah, Brown, Robert, Butler, Bill, Canavan, Dennis, Chisholm, Malcolm, Craigie, Cathie, Curran, Ms Margaret, Davidson, Mr David, Deacon, Susan, Douglas-Hamilton, Lord James, Eadie, Helen, Ferguson, Patricia, Fergusson, Alex, Finnie, Ross, Fitzpatrick, Brian, Gallie, Phil, Gillon, Karen, Godman, Trish, Goldie, Miss Annabel, Gorrie, Donald, Grant, Rhoda, Gray, Iain, Harding, Mr Keith, Harper, Robin, Henry, Hugh, Home Robertson, Mr John, Hughes, Janis, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Jenkins, Ian, Johnstone, Alex, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lyon, George, Macdonald, Lewis, Macintosh, Mr Kenneth, MacKay, Angus, MacLean, Kate, Macmillan, Maureen, Martin, Paul, McAllion, Mr John, McAveety, Mr Frank, McCabe, Mr Tom, McConnell, Mr Jack, McGrigor, Mr Jamie, McIntosh, Mrs Lyndsay, McLeod, Fiona, McLetchie, David, McMahon, Mr Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Monteith, Mr Brian, Morgan, Alasdair, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Mundell, David, Munro, John Farquhar, Murray, Dr Elaine, Oldfather, Irene, Peacock, Peter, Peattie, Cathy, Radcliffe, Nora, Raffan, Mr Keith, Robson, Euan, Rumbles, Mr Mike, Scanlon, Mary, Scott, John, Scott, Tavish, Sheridan, Tommy, Simpson, Dr Richard, Smith, Elaine, Smith, Iain, Stephen, Nicol, Thomson, Elaine, Tosh, Mr Murray, Wallace, Ben, Wallace, Mr Jim, Watson, Mike, White, Ms Sandra, Whitefield, Karen, Wilson, Allan, Young, John
Against: Ewing, Fergus, Matheson, Michael, Welsh, Mr Andrew
Abstentions: Adam, Brian, Campbell, Colin, Crawford, Bruce, Cunningham, Roseanna, Elder, Dorothy-Grace, Ewing, Dr Winnie, Gibson, Mr Kenneth, Hamilton, Mr Duncan, Hyslop, Fiona, Lochhead, Richard, MacAskill, Mr Kenny, MacDonald, Ms Margo, Marwick, Tricia, McGugan, Irene, Neil, Alex, Paterson, Mr Gil, Stevenson, Stewart, Sturgeon, Nicola, Swinney, Mr John, Ullrich, Kay

Photo of George Reid George Reid Scottish National Party

The result of the division is: For 90, Against 3, Abstentions 20.

Amendment 5 agreed to.