Bankruptcy and Diligence (Scotland) Act 2024

15 Attachment of property or funds: duty to consult and power to make further provision

(1) The Scottish Ministers must, within 1 year of this section coming into force—

(a) consult such persons as they consider appropriate about the merits of—

(i) attaching particular types of funds or other property in pursuance of any provision under Part 3A of the Debtors (Scotland) Act 1987 (“the 1987 Act”),

(ii) establishing, or modifying, a process for a debtor to apply to a decision-maker for an order requiring an arrestee to release to a debtor funds due to, or other property of, the debtor attached by an arrestment in accordance with that Part,

(b) after having had regard to the views expressed, prepare a report which—

(i) summarises the consultation responses received, and

(ii) sets out what steps (if any) the Scottish Ministers propose to take as a result of the findings (including, for example, the exercise of their regulation making powers under section 73U of the 1987 Act to modify Part 3A of that Act).

(2) The Scottish Ministers must, as soon as reasonably practicable after preparing the report, lay the report before the Scottish Parliament.

(3) The Scottish Ministers must comply with the duties in subsections (1) and (2) before laying a draft of a Scottish statutory instrument containing the first regulations under section 73U of the 1987 Act before the Scottish Parliament.

(4) The Debtors (Scotland) Act 1987 is modified by subsection (5).

(5) After section 73T, insert—

“73U Power to make provision about attaching particular property or funds

(1) The Scottish Ministers may by regulations modify this Part to make provision—

(a) about the types of funds or other property that may not be attached by an arrestment,

(b) establishing, or modifying, a process for a debtor to apply to a person specified in the regulations (a “decision-maker”) for an order requiring an arrestee to release to a debtor funds due to, or other property of, the debtor attached by an arrestment.

(2) Regulations under subsection (1) may (among other things)—

(a) in respect of regulations under paragraph (a) of that subsection, include provision specifying—

(i) cases or circumstances in which particular funds or property may not be attached by an arrestment,

(ii) particular types of funds which must be disregarded when calculating the protected minimum sum mentioned in section 73F(3)(a),

(b) in respect of regulations under paragraph (b) of that subsection, include provision about—

(i) the manner in which debtors may apply to a decision-maker for an order,

(ii) the information to be provided as part of an application,

(iii) the factors which a decision-maker must have regard to in deciding whether to give an order (for example, that the attachment of particular funds or property is unduly harsh),

(iv) the process for determining if an order should be given (for example, by conferring a discretion on a decision-maker or other person to decide any matter),

(v) how an application for an order may be challenged,

(vi) the effect of an order given by the decision-maker (including the obligations, or restrictions, on a debtor, creditor or arrestee to whom the arrestment concerned), and

(vii) appeals against an order (including providing for the fees payable in relation to such an appeal).

(3) Regulations under subsection (1) may—

(a) make different provision for different purposes,

(b) include incidental, supplementary, consequential, transitional, transitory or saving provision.

(4) Regulations under subsection (1) are subject to the affirmative procedure (as defined by section 29 of the Interpretation and Legislative Reform (Scotland) Act 2010).”.