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ENFORCEMENT OF CIVIL OBLIGATIONS IN SCOTLAND

SUMMARY

Part 1 sets out the background to the diligence review and its scope. It confirms that the consultation paper does not cover proposals for a replacement of poinding and warrant sale arising from the abolition of that diligence, which are being taken forward separately in a Bill currently in preparation. It acknowledges sources used in drawing up the paper and contributions by various bodies and individuals.

Part 2 addresses the role of enforcement as part of the wider Scottish civil justice system. It sets out the policy aims and principles which informed the Executive’s proposals for reform.

Part 3 reviews the structure and organisation of the enforcement system. The manner in which civil obligations are currently enforced is examined together with the structure and regulation of enforcement officers (messengers-at-arms and sheriff officers). The importance of distinguishing between informal means of debt collection (which are usually undertaken before a debt has been legally constituted and are not provided for by law) and formal legal means of enforcement is stressed. It sets out and assesses concerns which have been expressed about the current enforcement system. It makes proposals for reform of the organisational structure and oversight of officers of court, including the setting up of a new Scottish Civil Enforcement Commission. Proposals for regulation of debt collection are also made. A further important issue, about the need for creditors to access information about debtors is considered and, whilst further work on this is required, the Executive’s intention to do so is confirmed. A recurring problem of lack of awareness about many aspects of the enforcement system is highlighted and an information and education strategy proposed.

Part 4 examines existing debtor protections and makes proposals for their reform, as well as proposing setting up a new national statutory debt arrangement scheme. The purpose of, need and continuing calls for a debt arrangement scheme, as well as the costs and benefits, are assessed. Detailed proposals of how a debt arrangement scheme would operate are set out.

Part 5 assesses the various types of enforcement, the existing procedural arrangements and makes proposals for their reform. It addresses the question of whether there should be any formal hierarchy of diligence.

Part 6 considers the means of enforcement permitted by a summary warrant, granted to local and central government, and seeks views on options for reform.

Part 7 sets out the Executive’s intentions for a number of miscellaneous enforcement and procedural issues. These include improvements regarding arrangements for issue and intimation of the warrant authorising enforcement; provision of information and advice; revision of forms and fees; and future arrangements for gathering and monitoring information regarding enforcement.

Part 8 summarises all of the questions asked throughout the paper.

Annex A to the consultation paper contains example statements and quotes concerning issues discussed in the paper.

Annex B to the consultation paper contains a list of consultees.

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