ENFORCEMENT OF CIVIL OBLIGATIONS IN SCOTLAND

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ENFORCEMENT OF CIVIL OBLIGATIONS IN SCOTLAND

3 STRUCTURE AND ORGANISATION OF THE ENFORCEMENT SYSTEM

3.1 The fundamental need for and purpose of the enforcement system has been addressed. 20 The way in which this operates and the structure within which it is set, including its regulation, have been assessed with a view to identifying any improvements which could increase the aim of a fair, impartial, efficient and transparent system.

3.2 Proposals for reform of the structure and organisation of the enforcement system are brought forward in this Part. In order to assess the nature and extent of appropriate reform, the general operation and functions of the enforcement system were considered, including the personnel involved in the process. Particular attention was paid to concerns raised in a number of contexts about the enforcement system. Upon examination many such concerns were found to relate to means of informal debt collection, rather than the formal enforcement system. It was, therefore, of some importance to consider the distinction between these two activities and their relationship. Also to examine the root problems underlying concerns about the current system. In the light of this review, a number of proposals for structural and other reforms are put forward.

General Operation and Functions

3.3 An obligation to do, or not do, something may be enforced where authority to do so has been granted by the civil courts 21 and other means recognised by law. Decrees, or final orders, of the civil courts and court orders granted as provisional or protective measures contain a warrant for execution. That is, the court's authority to enforce. This is either in general terms, "for all lawful execution", 22 or specific to the activity ordered by the court. A general warrant is usually applied in the case of orders for payment of money. 23 An example of a non-payment order might be for removal and delivery of a child in implement of a child custody order where the warrant would be for officers of court to search for, take into possession and deliver the child to a named person. Certain orders of the criminal courts, such as unpaid criminal fines or compensation orders, may also contain a warrant for enforcement by civil diligence.

3.4 Decisions which are classified as equivalent to a decree may be extracted or certified and enforced in the same manner. These principally include arbiters awards registered in the court books for execution, decisions given the same effect as arbiters' awards under statute and foreign court judgements registered in the court books. Certain documents, which contain civil obligations and the granter's consent to registration in the court books for execution, once registered may also be extracted and enforced, 24 such as dishonoured bills of exchange or promissory notes registered under statute.

3.5 An official copy of the authority to enforce which has been granted is necessary to provide sufficient evidence for enforcement action to be taken. Orders of court and other documents mentioned are formally extracted from the court books or other official records or a certified copy is produced. This is obtained by the person in whose favour the award is made who instructs officers who hold authority from the courts to carry out enforcement action.

3.6 The type of enforcement action which may be appropriate will depend on the nature of the order granted. The different methods of enforcement and proposals for their reform are considered in later Parts.

3.7 In Scotland enforcement of civil obligations is a purely private matter for which parties themselves have sole responsibility for taking any action and its funding. The state does not assist or intervene in the enforcement process except in terms of regulating enforcement officers' activities. Those who may be engaged to undertake enforcement action, although judicially commissioned and regulated, are self-employed private contractors providing a service within the free market. Whilst officers of court are not directly employed as public servants there is a substantial public dimension to their organisation. They might be regarded, roughly speaking, as the civil equivalent of police officers.

3.8 Enforcement officers are generally known as officers of court. They have responsibility for the exercise of a number of public functions related to the execution of necessary court business, such as witness citation or service of court notices and documents and enforce orders of the court. They certify their activities and owe a duty to the court in that regard and may be disciplined, including having their commission suspended or revoked, by the court. Their fees for carrying out these public functions are set by statutory instrument 25 and commissions are granted by the judiciary.

3.9 Before considering any issues and problems identified with existing arrangements concerning the current structure of the enforcement system, the background and reasons for its development are examined.

Structure of the Enforcement Officer Profession

3.10 Messengers-at-arms are responsible for the execution of warrants issued by the Court of Session, the High Court of Justiciary and the Court of the Lord Lyon and are empowered by their commissions to act in all parts of Scotland. A messenger-at-arms may not, in his capacity as messenger-at-arms, execute warrants granted by a sheriff or sheriff clerk. The Court of Session is responsible for investigating and disposing of complaints about the conduct of messengers-at-arms and for disciplining messengers. 26

3.11 By contrast, sheriff officers execute warrants of the sheriff court and the general rule is that officers are authorised by their commissions to act only within the sheriff court district or other area for which their commissions were granted. 27 "When a sheriff officer crosses the boundaries of the sheriffdom his commission, like that of the sheriff principal, ceases to have effect". 28 Not all sheriff officers are also commissioned as messengers-at-arms. It is understood that currently there are 183 serving officers and of these 124 are messengers-at-arms. 29 The general territorial role is relaxed in the case of a sheriff court district where there is no resident messenger-at-arms or in the islands of Scotland. In these circumstances, a sheriff officer, commissioned to operate in any part of the sheriffdom of which the district or island is part, has the power of a messenger-at-arms for performance of the duties of an officer of court, including execution of enforcement. 30 The sheriff principal from whom a sheriff officer holds a commission may deal with complaints about the conduct of that officer. 31

Award of Commission

3.12 The award of a commission as a sheriff officer or messenger-at-arms is a matter within the discretion of the sheriff principal 32 and Court of Session 33 respectively. Although the commission of a messenger-at-arms is granted formally by the Lord Lyon King of Arms, recommendation that an individual be granted a commission must be made by the Court of Session.

3.13 A necessary condition of the grant of a commission is that the Court of Session or sheriff principal be satisfied of the candidate's competence. Rules made under the 1987 Act provide that any applicant for a commission as an officer of court must submit, as part of the application process, a certificate from the Society of Messengers-at-Arms and Sheriff Officers to the effect that the applicant, "has passed such examinations as may be required by the committee of examiners". 34 The system of professional training and examination administered by the Society is considered below.

Training and Qualifications

3.14 Prior to the passing of the 1987 Act there was no formal system of training for applicants for, and holders of, commissions as officers of court. The 1987 Act gave the Court of Session power to regulate, by Act of Sederunt, the "training and the qualifications required to obtain a commission as messenger-at-arms or sheriff officer". 35 Currently, rules of court provide that an individual may not be an officer of court unless he is between the ages of 20 and 70, has satisfactorily completed a 3 year period of training with a qualified officer of court and has passed those examinations set by the committee of examiners appointed by the Society of Messengers-at-Arms and Sheriff Officers. 36

3.15 Setting examinations and determining the standard of attainment to be achieved by trainee officers of court is the responsibility of the committee of examiners, although they must consult the Society. 37 Officers of court are responsible for training any person whom they employ for the purpose of becoming an officer of court. 38

3.16 Following passing examination, an individual must practise for a further 2 years as a sheriff officer before he may be appointed as a messenger-at-arms. 39

Professionalism

3.17 Membership of a professional body. Officers of court are not obliged to become or remain members of the Society of Messengers-at-Arms and Sheriff Officers. It is understood that 79% of commissioned officers are members of the Society. 40 Further, every applicant for a commission as an officer of court must obtain a certificate from the Society confirming that he has passed those examinations required by the "committee of examiners". The committee, which has responsibility for setting examination papers, standards of attainment and fees for examinations, 41 is appointed by the Society and up to three of its five members may be members of the Society.

3.18 Code of professional ethics. The Society has a written constitution regulating its objects, membership and management. Bye-laws require members to abide by the Society's code of professional ethics 42 and complaints against members are dealt with by the disciplinary and complaints committee which has power to expel or suspend members from the Society. 43

3.19 Continuing professional development. There is no statutory requirement for officers of court to engage in any post-qualifying training or education. However, the Society has a programme of Continuing Professional Development for members.

Regulation and Control

3.20 Regulation. Officers' of court appointment, organisation, qualification, training, conduct, inspection, investigation of misconduct, discipline, procedure, scope of official functions and non-official activity and keeping of accounts are regulated by the Act of Sederunt (Messengers-at-Arms & Sheriff Officers) Rules 1991. 44

3.21 Misconduct. The 1987 Act makes provision for formal investigation and disposal of complaints of misconduct against officers of court. 45 Complaints concerning messengers-at- arms are dealt with by a judge nominated by the Lord President of the Court of Session. Complaints concerning sheriff officers are dealt with by the sheriff principal from whom the officer holds his commission. Complaints could originate from a report of a sheriff, from a person appointed to inspect the work of an officer, where a judge of the Court of Session or a sheriff principal has reason to believe that the officer may have been guilty of misconduct, or where a complaint is made by a member of the public. An independent solicitor would be nominated to investigate the matter. Investigation of complaints includes misconduct not in the course of official duties. Misconduct includes conduct tending to bring the office of messenger-at-arms or sheriff officer into disrepute.

3.22 If found guilty of misconduct an officer could be deprived of office, suspended from practice, fined, censured or ordered to repay excessive fees. Appeal lies to the Inner House of the Court of Session.

3.23 Officers of court require to hold a bond of caution and professional indemnity insurance as they may be liable in damages for their actions. 46

3.24 Advisory Council. An Advisory Council on Messengers-at-Arms and Sheriff Officers was created by the 1987 Act. 47 This followed a recommendation by the Scottish Law Commission for establishment of a standing body to advise the Court of Session on the making of rules concerning the administration of diligence and to keep under review all matters relating to officers of court. 48 In terms of the 1987 Act, the Advisory Council is comprised of 9 members. These include one Court of Session judge, the Lord Lyon King of Arms, two sheriffs principal, two officers of court, two solicitors and one person appointed by the Scottish Ministers. Members hold office for a fixed period of 3 years but are eligible for reappointment. The Advisory Council is serviced by a secretary who is appointed by the Scottish Ministers. Although it has power "to regulate the summoning of its meetings and the procedure at such meetings," 49 no formal procedural rules have been made. It has tended to meet once per year or as necessary.

3.25 Production of information. The Scottish Ministers have a wide power, under section 84 of the 1987 Act, to require officers of court to provide them with information. They must provide information, "in such form and at such times as the Scottish Ministers may specify, regarding the officer of court's official functions". 50 That information may be published in whatever form Ministers see fit, provided that the anonymity of individual officers of court and those against whom diligence has been done is preserved. Currently, in implement of this provision, the Justice Department asks each firm to submit a 'section 84 return' every quarter. This return seeks information concerning diligence executed and is published annually as part of the Civil Judicial Statistics. The return is also used to gather information concerning the number of officers of court in the firm and the number of commissions held by them.

3.26 Registers of officers of court are kept under Part VII of the 1991 Rules by the sheriff and Lyon clerks and officers are obliged to intimate any changes. These maintain details of all officers who hold commissions, their business details, any practising restrictions, any extra-official activities permitted and interests disclosed and arrangements for accounting and professional indemnity insurance policies.

3.27 Business practices. Officers of court are not permitted to engage in other business or professional activities outwith their office. 51 Sheriff officers can perform the extra-official activity of collecting debts which are not constituted by court decree if specifically permitted by the sheriff principal. 52

Formal Enforcement and Informal Debt Collection

Distinction between Pre-Decree Collection and Post Decree Enforcement

3.28 An important distinction exists, both conceptually and in terms of current regulation, between the informal collection of debts before a court decree ordering payment has been granted and the formal enforcement of debts which have been legally constituted by a decree or equivalent. The essence of this distinction lies in the nature of the two situations, the former being by voluntary agreement and the latter being by legal compulsion.

3.29 A debt which is accepted as payable may be paid, on a purely voluntary basis, according to terms agreed between debtor and creditor (usually pre-decree). The creditor may exercise his right to take formal action to have the sum held as legally due and payable, usually by raising court action and obtaining a decree containing a warrant for all lawful execution. Legal constitution of the debt by decree ordering payment to be made entitles the creditor to enforce payment by compulsory means (post-decree). Pre-decree voluntary arrangements for payment/collection are a matter between the parties. Post-decree compulsory enforcement procedures are governed by the law of diligence and overseen by the Scottish courts.

3.30 Informal pre-decree collection may be arranged between individuals but is often undertaken as a fee charging business service offered by collection agencies to creditors seeking to collect, often from multiple debtors. Informal debt collection can be undertaken at any stage of the process when creditors pursue obligations for payment of money, before and often after formal authority to enforce has been obtained or acted upon.

3.31 The current organisation and regulation of official post-decree enforcement is set out in preceding paragraphs. Debt collection is only partly regulated. Debt collectors can operate in the consumer credit field by obtaining licenses granted by the Office of Fair Trading. The Consumer Credit Act 1974 53 provides a system of licensing granted by the Office of Fair Trading 54 for consumer credit businesses, consumer hire businesses and ancillary credit businesses, under the 1974 Act. An ancillary credit business includes debt collecting 55 and is treated as a consumer credit business. 56 Debt collecting is covered under the Act in so far as it concerns debts due under consumer credit or hire agreements. 57 Regulations may be made under the 1974 Act regarding conduct of the business but none have been made for debt collecting. 58 The Office of Fair Trading has identified debt collecting as a sector where guidelines should be issued and recently issued guidelines for debt management companies. Voluntary codes of conduct are adopted by those who are members of consumer credit organisations. For example, one association 59 requires consumer credit debt collectors not to engage in specified activities which constitute harassment of a debtor. Similarly, another association 60 has a code of practice with guidelines for members about consumer credit debt collection procedures.

3.32 Debt collection practice outwith the consumer credit regime is not regulated. There are all sorts of debts which are collected by informal means which would not fall into the consumer credit/hire purchase category under the 1974 Act. Examples would include council tax, rent arrears, services provided by painters and decorators, roofing contractors, tree surgeons, plumbers, joiners, treatment given by vets and dentists and so on. Also, debts owing for goods received where payment is not made up front and no credit or hire purchase arrangement is entered into. Shops usually take a deposit for items which are delivered and the balance is paid once the goods have been received intact, for example white goods, furniture etc. In their aims, informal debt collection and formal enforcement are closely associated. There may be a case for regulating debt collecting activities in a similar manner to regulation which exists (plus future arrangements planned) for formal enforcement. Any necessary provision for the unlicensed arena should be made in parallel with proposals for adjusting the post-decree enforcement regime and consideration of this has, therefore, been included within this exercise.

Devolved and Reserved Competence

3.33 Formal enforcement falls within the remit of this exercise and is within devolved competence for which the Scottish Parliament may legislate. Informal debt collection, broadly speaking, is not reserved, although the subject matter of the 1974 Act is reserved as a matter of consumer protection by regulation of the credit industry. The 1974 Act was intended to establish, "for the protection of consumers", 61 a new system of licensing and control of those engaged in the provision of credit. Informal debt collection, undertaken for monies due under arrangements which don't fall into the consumer credit area, is a matter within Scots private law as an obligation to make payment usually arising from a contract.

Concerns about the Current Enforcement System

3.34 Concerns about the current structure and organisation of the system of enforcement of civil obligations have been raised in a number of contexts. These are examined and include issues raised in the statutory complaints procedure against officers of court, SMASO's complaints procedure and local authority complaints procedures; Scottish Law Commission Reports; statements made in the parliamentary proceedings and public debate about abolition of poinding and warrant sale; the Report of the independent Working Group which recommended an alternative for poinding and warrant sale; advice sector Reports; the CRU research into the operation of the Debtors (Scotland) Act 1987; IRRV research plus the Report of the CoSLA and Executive Joint Working Group on Council Tax Collection.

Concerns Raised Within the Formal Complaints Procedures

Statutory Judicial Complaints Procedure

3.35 Despite the discontent expressed, the statutory judicial complaints procedure is little used and an extremely small number of complaints have been made over the years. Statistics are not published for complaints against officers of court. Nonetheless, information gathered from sheriffs principal and the Lord Lyon reveals the following:

Table I Complaints about Officers of Court received by Sheriffdom

Sheriffdom

Year

Lothian & BordersNorth StrathclydeTayside, Central & FifeSouth Strathclyde, Dumfries & GallowayGrampian, Highland & IslandsGlasgow & StrathkelvinTotal
199740200410
199822233113
19991401028
200052123316
2001*02332111
Source: Sheriffs principal.

Notes: * To November/December 2001.

Table II Complaints about Messenger-at-Arms received by Lord Lyon

YearLord Lyon
19970
19980
19990
20000
20010
Source: Court of the Lord Lyon.

3.36 The nature of complaints received by sheriffs principal over the period from 1997 to date included concerns about the following types of matters:

  • non-appearance of officer on specified date, difficulty contacting firm of sheriff officers
  • misconduct in relation to arrestment procedures
  • failure to respond to letter, incorrectly addressed correspondence
  • breach of confidentiality
  • diligence carried out unnecessarily
  • earnings arrestment served on wrong employer
  • unprofessional attitude and behaviour
  • failure to provide proper identification

3.37 The information gathered from sheriffs principal discloses that nearly all complaints referred to them over this 5 year period were subsequently resolved without any form of disciplinary action being taken against the officer of court concerned. A substantial number appear to have been dealt with by means of investigation and exchange of correspondence between the relevant sheriff principal and the senior partner of the firm of sheriff officers concerned. Such correspondence has, typically, been copied to the complainer, with no further action then being taken. Other complaints were held to have been without foundation or did not proceed as a result of insufficient information having been provided. There were isolated instances of officers being reminded by the sheriff principal of the need to be courteous in their dealings with debtors, but no significant cases of misconduct appear to have been dealt with over the period concerned.

3.38 Information obtained from the Lyon Clerk confirms that, for the period from 1997 to November 2001, no complaints were received by the Lord Lyon concerning the actings of any messenger-at-arms, with none having been deprived of office or suspended for any other disciplinary matter in that period.

SMASO Complaints Procedure

3.39 SMASO's complaints procedure, which forms part of its own code of conduct and disciplinary framework, reveals that over a 5-year period, from 1997 to November 2001, the level of complaints received annually by SMASO, for which it has a locus to become involved, numbered between 5 and 7 each year. The nature of these complaints was varied, examples include: concerns over fees, accounting issues, tone of correspondence, failing to explain consequence of unsuccessful diligence. The majority of complaints were made by debtors, a small number by creditors and others being complaints by officers against fellow officers (relating to allegations of professional discourtesy). Nearly all complaints handled by SMASO over this period appear to have been resolved either by determining there to be no valid grounds of complaint, or by an exchange of correspondence with the parties involved. Over this 5-year period, the information provided by SMASO indicated that only one complaint was considered by its Disciplinary Committee, which was not upheld after investigation.

Complaints made Directly to Local Authorities

3.40 In order to get to the bottom of the disparity between complaints expressed publicly but not made under the statutory complaints procedure, the Executive conducted a survey of local authorities as part of the diligence review. Information was obtained about complaints made directly to them. Local authorities are substantial users of the enforcement system and it was possible that complaints were being directed to them instead of channelled through the statutory procedure. All local authorities were asked to provide details of the numbers and nature of complaints received by them, over the previous five year period, concerning officers of court and debt collectors who they had instructed and how they had dealt with them along with information about their complaints' policy.

3.41 The survey produced responses from 26 of the 32 local authorities. Of these, 14 reported no complaints having been received over the whole 5 year period covered. Of those who did report complaints, 11 authorities had received up to 4 complaints during the whole 5 year period, mostly against sheriff officers. One authority had received 16 complaints during the 5 year period all of which were against debt collectors. The nature of the complaints reported included, primarily, difficulties in negotiating payment terms by instalments and an inflexible or unhelpful attitude. Complaints were resolved following investigation by the authorities and exchange of correspondence with the complainer and the firm of officers of court or debt collectors concerned. No complaints were referred to the judiciary under the statutory complaints procedure. Most authorities reported that they operated a clearly defined complaints policy. Several also reported having entered into contracts for the provision of the sheriff officers' services employed by them which incorporated agreed codes of conduct.

Complaints about Debt Collectors

3.42 It is understood that complaints about licensed debt collectors should first be directed to Trading Standards Offices and, should those offices receive a number of complaints against the same individual or firm, they will be referred to the Office of Fair Trading for consideration of their licence. The Executive is advised that records of complaints about all consumer credit organisations are not broken down to distinguish those for debt collection.

3.43 Unlicensed debt collectors are not regulated and there is no complaints procedure.

Concerns Raised Informally

Parliament & Public Debate, SLC, Working Groups, Advice Sector, Research

3.44 During the parliamentary and public debates on the abolition of poinding and warrant sale some controversy arose about the enforcement system in relation to the role of sheriff officers in conducting that form of enforcement and about what could happen during the procedure. Interventions did not always reflect an accurate picture of the law or practice. A general flavour of comments made can be seen from excerpts produced in Annex A. The Scottish Law Commission endeavoured to clarify popular misconceptions in its evidence to the Parliamentary committee 62 and their Report on Poinding and Warrant Sales without apparent success.

3.45 The role of officers of court was explored in the Report produced by the independent Working Group set up to identify a replacement for poinding and warrant sale. 63 The Working Group noted the importance of the officer of court function for the civil justice system and observed:

"We are aware of allegations about unprofessional conduct of sheriff officers made during the debate on the Abolition of Poindings and Warrant Sales Bill. Some of our "members" own knowledge suggested that there was an element of truth to the anecdotal evidence in this regard: but in other cases members had heard that debtors had found officers to be helpful and supportive. We note that there are a very low number of formal complaints made using the official complaints procedure; and we are well aware that people will tend to feel ill-disposed towards those charged with carrying out a procedure which is bound to be unwelcome. Whatever the factual position may be, the key point is that the significance of the onerous duties carried out by a court enforcement officer demands that all activities undertaken on the authority of the court must be conducted in a thoroughly professional, responsible and accountable manner. Past criticisms arising from the historical circumstances surrounding the poinding and sale procedure have brought the important role of court enforcement into question: we must not allow that state of affairs to persist." 64

3.46 The Working Group recommended that the Executive should:

"carry out an early and thorough review of this office [enforcement officers] and bring forward proposals for significant reform. This should include title, organisational structure and accountability as well as national standards, professional qualifications, training and continuing professional development. Careful consideration should also be given to whether the separate roles currently undertaken by sheriff officers, in relation to debt collection and enforcement of court decisions, are compatible and should be performed by the same people." 65

3.47 The Executive consulted on the Working Group's proposals and this recommendation met with approval from most respondents. Many respondents offered comments on the organisation of the enforcement system and the role of enforcement officers. Relevant excerpts are reproduced in Annex A.

3.48 Some aspects of the enforcement system have been considered by the advice sector. A Report of the 2001 annual conference of Money Advice Scotland 66 recorded discussion during a money advisers' workshop session when delegates exchanged clients' experiences regarding sheriff officers when carrying out diligence. It was reported that sheriff officers proved supportive, providing useful information to people about benefits and where to go to obtain money advice. The root problem with clients' complaints lay with issues about the debt itself, often connected to an unco-ordinated approach taken by local authorities in collecting debts due to different departments. 67 Papers produced by Citizens Advice Scotland have touched on matters relating to the enforcement system by highlighting client's experiences, such as activities of debt collectors. 68

3.49 The Report of the interest group, Improving Debt Recovery Working Group, 69 recommended that the code of conduct for enforcement officers should be reviewed with SMASO and placed on a statutory footing if required. It suggested that the SMASO complaints system should be subject to further reference to the Legal Services Ombudsman and diligence forms should make reference to the complaints procedure. 70

3.50 Research into the Debtors (Scotland) Act 1987 considered how the Act was working in practice from the perspectives of all of its users and operators. 71 The Scottish Office Central Research Unit had been commissioned in 1993 to conduct a thorough review of the implementation of the 1987 Act. The purpose of the research was to evaluate to what extent the new legislation was achieving the Commission's stated objectives of maintaining an effective system of debt recovery for creditors whilst protecting debtors from the harsher aspects of diligence. Seven separate research studies were conducted. Four studies were described as qualitative. They were not statistically based but were designed to evaluate the experiences and views of participants in the diligence system, namely: (1) commercial creditors; (2) individual creditors; (3) debtors and (4) facilitators (i.e. advice workers, solicitors, debt collectors, employers, sheriffs, court staff and enforcement officers). The remaining three studies were quantitative, that is to say they provided some statistical analysis of: (5) payment actions in the sheriff court, (6) the use of diligence generally and (7) the use of poinding and warrant sale specifically. From these seven studies, an overview of the operation of the 1987 Act was produced which attempted to draw together the results of the research.

3.51 The research team had encountered various difficulties throughout the project, including inaccuracies in statistical information provided by sheriff courts and problems securing the involvement of sufficient numbers of affected parties to ensure that sample groups were representative. There was considerable delay between the conduct of the research and the publication of the Reports in April 1999. The research represents the only formal study in this field and the types of difficulties then revealed may not have significantly changed. However, it should be borne in mind that it represented a small sample study and is now a number of years old.

3.52 Concerns about the enforcement system were raised by commercial creditors, individual creditors and debtors. Excerpts are reproduced in Annex A. The research revealed creditors' disappointment of results of enforcement and one creditor's view that the state should ensure that people pay their debts. Debtors expressed a need for wider availability of information about court and enforcement procedures. Debtors' reports of sheriff officers' conduct revealed disparities from discreet and sensitive to aggressive and insensitive. An increase in informal debt collection and a trend towards creditors referring debtors to advice agencies was noted. One debt collector observed that sheriff officers were regulated by the courts whereas debt collectors were not and suggested that problems were, therefore, more likely to arise with collectors than officers.

3.53 Local authorities are substantial users of the services of both informal debt collectors and formal enforcement officers. The Scottish enforcement system was considered as part of the research and recommendations made in respect of collection of council tax debt. There had been concerns about the relatively low levels of collection per se and in comparison with the rates of collection in England and Wales. A joint CoSLA and Scottish Office Working Group Report It Pays to Pay72 produced recommendations based on commissioned research of the Institute of Revenues, Rating and Valuation. 73 The Report did not make any recommendations about the structure or organisation of the enforcement system. It made some recommendations about specific aspects of how some forms of diligence operated. It also considered the issue about creditor access to information about debtors' circumstances. These issues are considered in subsequent parts of this paper. Many of its recommendations were directed at internal working practices within local authorities.

3.54 Recommendations were made in It Pays to Pay about the way in which local authorities should manage both informal pre-decree collection and formal post-decree enforcement, particularly in relation to their communication with and instruction of debt collectors and enforcement officers. It was recommended that local authorities entered into service level agreements or codes of practice with debt collectors and enforcement officers in order to set out their policies on collection and enforcement, as well as protocols to be carried out for matters such as arranging instalment repayments. 74 It was noted that sheriff officers were assisting in an advisory capacity with, for example, helping people to complete council tax benefit claim forms. 75 It was recommended that the local authorities do more to handle cases on an individual basis in order to consider the whole range of informal collection and formal enforcement options available which might be appropriate depending on the circumstances of individual cases. 76


20 Part 2, para 2.2.
21 Including tribunals.
22 See for example, A.S. 1993/1956, rule 30.6 and form 1 and A.S. 1988/2013, rule 68(1) and form 62.
23 Excepting in summary warrants for payment of taxes, duties and other levies where the diligences of arrestment and poinding and sale are specified.
24 Known as summary diligence.
25 SSI 2001/439, SSI 2001/440.
26 See para 3.21.
27 A.S. 1991/1397, rule 14(3).
28 Malcolm Innes of Edingight, Stair Memorial Encyclopaedia , Vol 14, para 1508.
29 As at November 2001. (Information obtained from the Court of the Lord Lyon and Society of Messengers-at-Arms and Sheriff Officers.)
30 Execution of Diligence (Scotland) Act 1926, c16, s1.
31 See para 3.21.
32Stewart v Reid , 1934, SC 69 and A.S 1991/1397, rule 8.
33 1987 Act, s77(1) and A.S. 1991/1397, rule 7.
34 A.S. 1991/1397 and rules 7(2)(c) and 8(2)(d).
35 1987 Act, s75(1)(b).
36 A.S. 1991/1397, rule 3.
37Ibid , rule 6(3).
38Ibid , rule 5(1).
39Ibid , rule 4.
40 As at November 2001, of the 183 commissioned officers, 144 are members of the Society. (Information obtained from the Society of Messengers-at-Arms and Sheriff Officers.)
41 A.S. 1991/1397, rule 6(3).
42 Constitution of the Society of Messengers-at-Arms and Sheriff Officers, Bye-law 2(e).
43 Constitution of the Society of Messengers-at-Arms and Sheriff Officers, Disciplinary & Complaints Committee.
44 A.S. 1991/1397.
45 ss 79-81.
46 See paras 4.95.
47 1987 Act, s76.
48 Scot Law Com No 95, para 8.33.
49 1987 Act, s76(9).
50 1987 Act, s84(1) as amended by the Transfer of Functions (Lord Advocate and Secretary of State) Order 1999, (SI 1999/678) and the 1998 Act, s53.
51 A.S. 1991/1397, rule 15.
52Ibid , rule 16.
53 c39.
54 s21.
55 ss 145 & 189.
56 ss 145 & 147.
57 ss 147(7) & 189.
58 s26.
59 Consumer Credit Association.
60 Credit Services Association Ltd.
61 1974 Act, Long Title.
62 Justice and Home Affairs Committee (lead committee), Social Inclusion, Housing and Voluntary Sector Committee, Local Government Committee.
63Striking the Balance, 18 July 2001.
64Ibid, paras 56-57.
65Ibid, para 121.
66 7-8 June 2001.
67Money Advice Scotland Spring Journal, incorporating Conference 2001 , awaiting publication.
68Would You Credit It? - creditor behaviour in Scotland , December 2001.
69 December 2000, an interest group comprising representatives of Scottish Socialist Party, Scottish National Party and certain religious, not for profit advice sector and poverty action organisations.
70 See excerpt in Annex A.
71Evaluation of the Debtors (Scotland) Act 1987, (1999).
72 January 2000.
73 IRRV.
74It Pays to Pay , paras 106-108.
75Ibid , para 104.
76Ibid , para 104 & Annex F, para 10.