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Official Report: search what was said in Parliament

The Official Report is a written record of public meetings of the Parliament and committees.  

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Dates of parliamentary sessions
  1. Session 1: 12 May 1999 to 31 March 2003
  2. Session 2: 7 May 2003 to 2 April 2007
  3. Session 3: 9 May 2007 to 22 March 2011
  4. Session 4: 11 May 2011 to 23 March 2016
  5. Session 5: 12 May 2016 to 5 May 2021
  6. Current session: 12 May 2021 to 20 April 2025
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Displaying 1119 contributions

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Delegated Powers and Law Reform Committee

Moveable Transactions (Scotland) Bill: Stage 1

Meeting date: 4 October 2022

Paul Sweeney

I thank Mr Fitt and Mr McIntosh for coming in and offering such helpful contributions so far. I am mindful of your overall position regarding consumers being removed from the proposed bill.

Concerns have been raised in written correspondence in relation to the enforcement implications in particular. Those concerns are around the fact that people could agree not to be subject to a court order to recover goods with the security attached, and around what arguments people would be able to offer in defence in court against a move against them by a creditor. Being mindful of those issues, are the processes in the bill sufficient to protect consumers? Do the enforcement issues present concerns?

Delegated Powers and Law Reform Committee

Moveable Transactions (Scotland) Bill: Stage 1

Meeting date: 4 October 2022

Paul Sweeney

I am interested in the position of the Faculty of Advocates. The advocates are against the idea of waiver-of-defence clauses because they believe that that would very quickly become established practice across all financial institutions, that transactions would become pro forma on that basis, and that that would diminish the rights of third parties. They say that that is weighing the protection of small businesses against the marketability of claims. Do you recognise that as a major risk? Might that become normal behaviour, thereby diminishing the ability of businesses to protect themselves against faulty products that they might have sought security against?

Delegated Powers and Law Reform Committee

Moveable Transactions (Scotland) Bill: Stage 1

Meeting date: 4 October 2022

Paul Sweeney

That is an important point. It also carries over to the point about sole traders. If you remove the means by which they can earn money to service the debt, you are compounding the problem, not solving it. There is no public interest in that happening.

Delegated Powers and Law Reform Committee

Moveable Transactions (Scotland) Bill: Stage 1

Meeting date: 4 October 2022

Paul Sweeney

That is very helpful.

Delegated Powers and Law Reform Committee

Moveable Transactions (Scotland) Bill: Stage 1

Meeting date: 4 October 2022

Paul Sweeney

The potential for licensing to provide a product to the Scottish market is interesting.

Delegated Powers and Law Reform Committee

Moveable Transactions (Scotland) Bill: Stage 1

Meeting date: 27 September 2022

Paul Sweeney

That is reassuring. Perhaps committee members can reflect on the matter as we proceed with the bill.

More broadly, we are interested in understanding more about what the commission did to seek the views of consumer groups. What feedback or evidence did you receive in the course of preparing the draft legislation?

Delegated Powers and Law Reform Committee

Moveable Transactions (Scotland) Bill: Stage 1

Meeting date: 27 September 2022

Paul Sweeney

I mentioned sections 63, 65 and 66.

Delegated Powers and Law Reform Committee

Moveable Transactions (Scotland) Bill: Stage 1

Meeting date: 27 September 2022

Paul Sweeney

I have no further questions. That was a helpful series of responses, so I am happy to rest on that.

Delegated Powers and Law Reform Committee

Moveable Transactions (Scotland) Bill: Stage 1

Meeting date: 27 September 2022

Paul Sweeney

I thank the commissioners for their helpful evidence and statements so far. I will touch on some of the aspects around consumer protections, in addition to the issues mentioned by Mr Mundell, with regard to how we can create a mechanism that is effective at protecting consumers.

There has been some focus on the £1,000 placeholder, which, with hindsight, has perhaps been a bit of an unfortunate red herring. In private session, the committee has considered lodging an amendment to provide automatic controls on that figure—some sort of deflator that would automatically correct every financial year. Would you endorse such a mechanism? Would that be a reasonable undertaking, and would you, perhaps, assist us in designing it?

Delegated Powers and Law Reform Committee

Moveable Transactions (Scotland) Bill: Stage 1

Meeting date: 27 September 2022

Paul Sweeney

That is helpful background and provides some degree of reassurance on the commentary that we have heard on the proposed legislation.

Responses from law centres were mentioned. We have received a response from Govan Law Centre, which, in effect, compared the enforcement of statutory pledges to warrant sales. I assume that you do not think that that is a fair characterisation.

Particular sections of the bill have been highlighted in that regard. Section 63 entitles a creditor to serve a pledge enforcement notice on a debtor if payment has not been made. Section 65 enables an authorised person—in other words, a sheriff officer—to enter someone’s home to remove moveable goods, subject to the statutory pledge. Section 66 gives a creditor the right to sell someone’s moveable goods at a public auction.

Bearing in mind the fact that we have discussed the protections that we can introduce in relation to particular goods, household vulnerability and exposure, will you explain why the characterisation of the enforcement of statutory pledges as warrant sales is not fair? That will allow us to understand the context better.