This article explores the extent to which one can see English personal
insolvency law in this manner, particularly as contemporary economic con-
ditions pressurize a shrinking social safety net and challenge the law to act as
a social insurer of last resort. In terms of express policy statements, English
law appears not to be fully committed to this view of the law. Rather, it
seems to adhere to a `firmly established tenet of time-worn bankruptcy lore
. . . that the bankruptcy system serves two functions: the protection and
payment of creditors; and the provision of shelter and a ``fresh start'' to
After an initial dominance of the debt collection
the history of the law's development has involved efforts to seek
`an appropriate balance of bankruptcy's collection and debtor rehabilitation
The precise calibration of this balance has varied at different historical
A landmark in establishing debt relief as `a legitimate indepen-
was bankruptcy law's introduction in 1976 of automatic
debt discharge on completion of the insolvency process,
creditor consent or returns to creditors.
This objective was advanced
period for discharge to just three years.
This reform followed a key policy
report that recognized the fresh-start principle as a basic aim of insolvency
More recent policy developments have tilted the balance ever further
towards this aim, while nonetheless reiterating the importance of debt
reducing the discharge waiting period to just 12 months.
It also replaced
the automatic restrictions and disqualifications previously applicable to all
28 Hallinan, op. cit., n. 6, p. 50. See, also, E. Warren, `A Principled Approach to
Consumer Bankruptcy' (1997) 71 Am. Bankruptcy Law J. 483, at 483; I. Fletcher,
`Bankruptcy Law Reform: The Interim Report of the Cork Committee, and the
Department of Trade Green Paper' (1981) 44 Modern Law Rev. 77, at 81.
29 M. Howard, `A Theory of Discharge in Consumer Bankruptcy' (1987) 48 Ohio State
Law J. 1047, at 1049; C. Tabb, `The Historical Evolution of the Bankruptcy
Dischar ge' (1991) 65 A m. Bankruptc y Law J. 325; A.J. D uncan, `Fro m
Dismemberment to Discharge: The Origins of Modern American Bankruptcy
Law' (1995) 100 Commercial Law J. 191.
30 Howard, id., p. 1082. See, also, D. Skeel, Debt's Dominion?: A History of
Bankruptcy Law in America (2001) 210.
31 McKenzie-Skene, op. cit., n. 27, p. 297.
32 Hallinan, op. cit., n. 6, p. 60; English law eliminated the creditor consent condition
in 1842 (5 & 6 Vict., c. 122, s. 39 (1842)), but reintroduced it in 1869 (32 & 33
Vict., c. 71, s. 48 (1869)). It was revoked in 1883 but replaced by a system of
limited, conditional, and suspended debt discharges: Tabb, op. cit., n. 29, p. 354.
33 Insolvency Act 1976, ss. 7±8; I. Fletcher, Law of Bankruptcy (1978) 308±9.
34 Duncan, op. cit., n. 29, p. 199; Tabb, op. cit., n. 29, p. 337.
35 Insolvency Act 1986, s. 279.
36 Cork, op. cit., n. 19, p. 192.
37 See, especially, The Insolvency Service, Bankruptcy: A Fresh Start (2000).
38 Enterprise Act 2002, s. 256, substituting Insolvency Act 1986, s. 279.
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