Section 172 — Release of money where attachment unduly harsh

Bankruptcy and Diligence etc (Scotland) Bill: Stage 3 – in the Scottish Parliament at 3:30 pm on 30th November 2006.

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Photo of Murray Tosh Murray Tosh Conservative 3:30 pm, 30th November 2006

Group 22 is on undue harshness of money attachment.

Amendment 171, in the name of Alex Neil, is the only amendment in the group.

Photo of Alex Neil Alex Neil Scottish National Party

Throughout the bill, we have tried to establish a balance between the interests of the creditor and the interests of the debtor. In doing so, both the minister and the committee have been conscious of the need to ensure that there is a degree of humanitarianism in the administration of bankruptcy and diligence. [ Interruption. ]

Photo of Murray Tosh Murray Tosh Conservative

I repeat my earlier advice on mobile phones and urge members to accept it and follow it this time.

Photo of Alex Neil Alex Neil Scottish National Party

You will be glad to learn, Presiding Officer, that I see from my phone that the latest poll shows that there is a 10 per cent gap between the Scottish National Party and the Labour Party.

We must achieve a balance between the interests of the creditor and the interests of the debtor. However, it is also necessary to ensure that people are left with enough to live on while they live up to their responsibilities.

Section 172(3) states:

"Where the sheriff is satisfied that, in the circumstances, the money attachment is unduly harsh to the debtor, the sheriff must, subject to subsection (4) below, make an order such as is mentioned in subsection (2) above."

The purpose of my amendment 171 is to provide a degree of definition of the phrase "unduly harsh" and, in particular, to leave the debtor with enough for them and their family to subsist on, so that they are not left destitute or nearly destitute as a result of the decision of the sheriff. This is a humanitarian amendment that does not alter the balance between the interests of the creditor and the interests of the debtor, but acts as a guarantee to ensure that the affected person has enough left to live on. That is a sensible measure.

The issue was not highlighted at stage 2, but I am moving the amendment as a result of what has happened to two of my constituents in Central Scotland, to provide an extra guarantee that in future there will be a degree of safeguard for the debtor.

I move amendment 171.

Photo of Allan Wilson Allan Wilson Labour

I do not necessarily have a problem with the spirit behind amendment 171. I can see what Alex Neil is trying to achieve. Having said that, section 172 without the amendment will better deliver the protection that he seeks.

The sheriff already has to consider all the circumstances of the case. That will clearly include the financial circumstances of the debtor and their family in cases where the debtor is an individual. It is worth remembering that money cannot be attached on a person or in a home, and many debtors will not be individuals.

The wording of amendment 171 would cause confusion. Aliment has a particular legal meaning, which is defined in the Family Law (Scotland) Act 1985. It is the duty of a husband or wife to support the other and the duty of a parent to support a child. Therefore, it is not clear whether the use of the word "family" in the amendment is intended to mean the same as that or is meant—as is the case with, for example, land attachment protection—to include other relatives.

Aliment is also not a minimum level of support. The level of aliment depends on the resources and the needs of the people involved. For example, divorce courts award large sums of money to support people's lifestyle. I do not think that Alex Neil wants amendment 171 to have the effect that a wealthy debtor could persuade a court to release money whereas a debtor who was on benefits could not. That could be the result of amendment 171. Section 172 should be left as it is, so I ask the member to withdraw amendment 171.

Photo of Alex Neil Alex Neil Scottish National Party

I hear what the minister says but, quite frankly, I think that his comparison with divorce settlements is rather spurious. In a divorce settlement, aliment is related to the rights of the spouse. The definition of aliment is not as simplistic as that propounded by the minister. Amendment 171 would improve the bill by providing the guarantee that is required, and I do not accept that it would confuse the issue, so I intend to press it.

Photo of Murray Tosh Murray Tosh Conservative

The question is, that amendment 171 be agreed to. Are we agreed?

Members:

No.

Division number 19

For: Adam, Brian, Baird, Shiona, Ballance, Chris, Byrne, Ms Rosemary, Canavan, Dennis, Cunningham, Roseanna, Curran, Frances, Fabiani, Linda, Fox, Colin, Gibson, Rob, Grahame, Christine, Harper, Robin, Harvie, Patrick, Hyslop, Fiona, Leckie, Carolyn, Lochhead, Richard, MacAskill, Mr Kenny, Martin, Campbell, Mather, Jim, Matheson, Michael, Maxwell, Mr Stewart, McFee, Mr Bruce, Morgan, Alasdair, Munro, John Farquhar, Neil, Alex, Robison, Shona, Ruskell, Mr Mark, Scott, Eleanor, Sheridan, Tommy, Stevenson, Stewart, Swinburne, John, Swinney, Mr John, Turner, Dr Jean, Watt, Ms Maureen, White, Ms Sandra
Against: Aitken, Bill, Alexander, Ms Wendy, Arbuckle, Mr Andrew, Baillie, Jackie, Baker, Richard, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brocklebank, Mr Ted, Brown, Robert, Brownlee, Derek, Butler, Bill, Chisholm, Malcolm, Craigie, Cathie, Curran, Ms Margaret, Davidson, Mr David, Deacon, Susan, Douglas-Hamilton, Lord James, Eadie, Helen, Finnie, Ross, Fraser, Murdo, Gillon, Karen, Glen, Marlyn, Godman, Trish, Gorrie, Donald, Henry, Hugh, Home Robertson, John, Hughes, Janis, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Johnstone, Alex, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lyon, George, Macdonald, Lewis, Macintosh, Mr Kenneth, Maclean, Kate, Macmillan, Maureen, Martin, Paul, May, Christine, McAveety, Mr Frank, McCabe, Mr Tom, McConnell, Mr Jack, McMahon, Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Milne, Mrs Nanette, Mitchell, Margaret, Monteith, Mr Brian, Muldoon, Bristow, Mulligan, Mrs Mary, Murray, Dr Elaine, Oldfather, Irene, Peattie, Cathy, Petrie, Dave, Pringle, Mike, Purvis, Jeremy, Radcliffe, Nora, Robson, Euan, Rumbles, Mike, Scott, John, Scott, Tavish, Smith, Elaine, Smith, Iain, Smith, Margaret, Stephen, Nicol, Stone, Mr Jamie, Wallace, Mr Jim, Whitefield, Karen, Wilson, Allan

Photo of Murray Tosh Murray Tosh Conservative

The result of the division is: For 35, Against 74, Abstentions 0.

Amendment 171 disagreed to.

[Amendment 172 moved—[Allan Wilson]—and agreed to.]