Thursday, October 23, 2008

Wee Nicola Krankie: "Dangerously Wrong" on Law

Nicola Krankie Sturgeon (above with Alex Salmond in the Usher Hall Christmas Pageant) has headed full steam into an elephant trap by refusing to match Gordon Brown's repossession protection moves. The Scotsman report:

... Deputy First Minister Nicola Sturgeon today insisted that Scotland's court system was different, and tough legislation was already in place to protect homeowners.
Under moves announced yesterday by the Prime Minister, new court "protocols" will make repossession a last resort and the Government is proposing that firms involved in sale-and-rent back schemes should be brought regulated by the Financial Services Authority.
Labour's Cathy Jamieson told BBC Radio Scotland's Good Morning Scotland programme: "Gordon Brown has made it very clear he wants to see repossession as a last resort and everything else should be looked at.
"I absolutely agree with that.
"I want the Scottish Government to move in that direction, to do it quickly, to take measures to fast-track that process and give people in Scotland the same protection, and ensure they get access to appropriate legal representation."
But Ms Sturgeon told the programme Scottish court procedures were different, and statutory protection for home-owners was provided by the Mortgage Rights (Scotland) Bill from 2001.
"That system already effectively ensures that repossession is a last resort," she said. [... removes Sturgeon bilge ...]
Ms Jamieson later accused Ms Sturgeon of "astonishing complacency" on home repossessions.
"Gordon Brown has acted decisively to ensure additional protection for homeowners, but the Scottish Government's response is to sit on their hands and do nothing," she said.
Lawyer Mike Dailly, of Govan Law Centre in Glasgow, said Ms Sturgeon was "dangerously wrong", and homeowners in Scotland would have less protection than in England and Wales.
"The UK Government in England and Wales have imposed a duty on the courts to seek alternatives to repossession," he said.
"Court procedures in Scotland rely on lawyers asking the court to look for alternatives."
While the Mortgage Rights Act required people to have access to legal representation, in England families were entitled to free representation, he went on.
"There is no protection to ensure that repossession is a last resort in Scotland," he said.
"On the contrary the sub-prime lenders can be extremely aggressive and unreasonable in raising court actions."

1 comment:

Scott @ loveandgarbage said...

I broadly think that Mike Dailly is correct, although the Sturgeon line is being trotted out by SNP supporters in various places. For example, see one SNP candidate, Calum Cashley at and . He suggests that Brown's mortgage protections proposals are not all they seem. Unfortunately Mr C has a problem with understanding legal issues (especially those in his own country). I have on a few occasions attempted to correct his errors (see my post with one story and links to a couple of corrections to Mr Cashley, where he has not moderated my comments). Anyway, in case you are taken in by Cashley's errors on Scots law, or on the FSA and the proposals similarity to FSA rules, I have replied to him - but fully expect that reply won't go through either. I commented as follows

"Pre-action protocols are not wholly toothless (as you imply in your posts) in England and Wales given the Practice Direction issued by the courts that buttresses their use.

"On the FSA regulatory provisions, a punter cannot enforce this directly against a lender - accordingly replication of the controls there in a manner giving some entitlement to a punter (albeit through a practice direction backed protocol) is a good thing, better than merely having the FSA rules - which require FSA enforcement. The regulatory regime does not give directly enforceable rights to punters.

"And on the misleadingly named MOrtgage RIghts Act - is the protection there really better than the equivalent English provisions? How so?

"Is our system (the Scots system) sensible in permitting non-judicial enforcement of standard securities (the default position under the 1970 ACt - although I note in your reply to a comment I posted earlier on your blog in reation to your suggestion that Lloyds TSB was in a bad financial state you seem to be of the view that the 1894 Act provides the general remedies: not so, as I pointed out in my reply, posted 3 times and not yet approved)? Is the 2001 Act sensible in effectively requiring a duplication of court processes - if the creditor has used a court action? Is it better to have a procedure where the 2001 considerations apply automatically, or is the approach of the 2001 ACt requiring the debtor to initiate the application (at his or her own expense!) really preferable, especially when one considers the tight timescale for initiation of the summary application? And if the 2001 Act starts getting used heavily - through suspension of enforcement - given the 2001 ACt has no effect on the loan agreement and the building up of arrears, what is to stop a creditor from exercising alternative remedies available to all creditors that are not paid.

"The 2001 Act is flawed. Commentators have noted this since 2001, indeed some noted it during consultation. The drafting has been criticised. If calling up is used, then the wording of the 2001 ACt suggests little prospect of suspension being granted.

"The protections down south come partly from s 36 of the Administration of JUstice Act 1970 and partly from case law interpreting the provisions. This seems wider than the Scottish alternative, particularly given the Court of Appeal interpretation of the AJA in Cheltenham & Gloucester v Norgan and the failure of the Scottish provisions to mirror the amendments made in response to Halifax v Clark in England."