The Act
3.The Act is intended to implement the central recommendations of a broadly based Working Group which was set up, in response to the request of the Justice and Home Affairs Committee of the Scottish Parliament in the Committee’s Stage 1 Report on the Abolition of Poindings and Warrant Sales Bill (SP Paper 82, paragraph 48), to consider an alternative for poinding and warrant sale. The Working Group’s recommendations were published in its report Striking the Balance – a new approach to debt management on 6 July 2001.
4.The Act is in five parts:
	Part 1 (THE DEBT ARRANGEMENT SCHEME) creates a national debt arrangement scheme to enable multiple debts to be assessed with the support of money advisers and paid in accordance with a debt payment programme over a period of time. During participation in the debt arrangement scheme enforcement action against and sequestration of the debtor will be prohibited. Regulation making powers are included within the Act to enable the scheme to be introduced without the need for additional primary legislation, so allowing for early implementation. Matters of detail to be contained within the regulations will be informed by the responses to the consultation document Enforcement of Civil Obligations in Scotland, published on 22 April 2002. The first regulations to be made under the Act which make further provision in relation to debt payment programmes under the scheme will be subject to affirmative procedure.
	Part 2 (ATTACHMENT) provides for attachment of corporeal moveable property.
	Part 3 (ATTACHMENT OF ARTICLES KEPT IN DWELLINGHOUSES: SPECIAL PROCEDURE) provides for attachment, on an exceptional basis, of articles kept in dwellinghouses. This is competent only where a sheriff grants an exceptional attachment order and where assets exist which are not essential. An exceptional attachment order will be granted only after there has been a judicial enquiry in each individual case. This will take into account such matters as whether money advice has been given to the debtor, any previous time to pay arrangement, the nature of the debt and any information produced that relates to the debtor’s financial circumstances. Factors to be taken into account by the sheriff in deciding whether there are exceptional circumstances include whether the creditor has taken reasonable steps to negotiate a settlement, whether an earnings or ordinary arrestment has been attempted and whether there is a reasonable prospect that a sum (currently £100) plus expenses will be recovered. The sheriff does, however, have an overriding discretion, after considering all the matters before him, to decide whether or not to grant an exceptional attachment order on the basis that it would be reasonable or not in the circumstances to do so.
	Part 4 (ABOLITION OF POINDINGS AND WARRANT SALES) makes provision for the abolition of poinding and warrant sales. It also contains saving provisions in respect of warrant sales already completed before 30 December 2002 and for poindings where a warrant sale has not been completed before that date where the poinding was executed in premises that are not a dwellinghouse and provided that the warrant sale is completed on or before 31 March 2003.
	Part 5 (MISCELLANEOUS AND GENERAL) makes provision for the short title, regulations and orders, commencement of the Act and other miscellaneous matters.
	The SCHEDULES contain details of the expenses of attachment chargeable against the debtor, non-essential assets and minor and consequential amendments and repeals.