HC Deb 07 May 1926 vol 195 cc635-41

Order for Second Reading read.

The SOLICITOR - GENERAL for SCOTLAND (Mr. MacRobert)

I beg to move, "That the Bill be now read a Second time."

In asking the House to give a Second Reading to this Bill, I shall have regard to what was said from the front Opposition bench by the hon. Member for Kirkcaldy Burghs (Mr. T. Kennedy), and be very brief. The purposes of the Bill are to facilitate, and to lessen the cost of, diligence in Scotland. It follows upon a Report of a Departmental Committee, and the Bill gives effect to the unanimous recommendation of that Report. I do not think there is any question with regard to the principle of the Bill. I do not think it is controversial. There may be some points of detail, in fact, I know that there are some small points of detail, as stated by the hon. Member for Kirkcaldy Burghs, which, of course, will receive consideration in Committee.

There are three main points in connection with the Bill. The first is in regard to Clause 1, where there is a provision to the effect that, if there is no messenger-at-arms, the sheriff officer may carry out the duties of that officer. The messenger-at-arms is an official of the Court of Session or the High Court of Justiciary, corresponding to the sheriff officer in the sheriff court, and, accordingly, when there is no messenger-at-arms to fulfil an Order of the Supreme Court or the Justiciary Court, this duty is placed upon the sheriff officer. Clause 2 is equally simple. It provides that, as regards an arrestment or the charge upon a decree in the Sheriff Small Debt Court, that may be done, as provided in the Bill, by a registered letter instead of personally as at the present time.

The remaining point, which I think is probably the most important point in the Bill, is that wherever the Sheriff is satisfied that there is not a messenger-at-arm or sheriff officer reasonably available, the Sheriff may in that case appoint an officer. That may well occur, because, as those who are familiar with the position of messengers-at-arms and sheriff officers in Scotland will know, within the last 30 or 40 years the number of messengers-at- arms and sheriff officers has greatly diminished, owing to the introduction of service by post. We are bound to recognise that there are very few messengers-at-arms. The fact is that, if you draw a line from Aberdeen through Perth to Greenock, to the north of that line, as Scottish Members will probably know, there is not a messenger-at-arms at all, and that area comprises two-thirds of Scotland. Accordingly, the necessity for this Bill is obvious. I think I have sufficiently explained it, but I will give any further details that may be necessary. I ask the House to give the Bill a Second Reading.

Sir ROBERT HAMILTON

As the hon. and learned Gentleman has said, there will, I suppose, be no opposition to this Bill. It is perfectly obvious that the objects of the Bill are desirable, but there are one or two points which I think will require clearing up. I may say that in my Colonial experience we made use of registered letters very largely for serving processes of court, but there we had a facility in the Post Office which I do not think we have in this country. That was a system called the "A.R. Receipt," under which a registered letter must be handed to the addressee, and the signature of the addressee was then returned. Under that system is was perfectly clear that the service had been effected upon the right person. Under the provisions of this Bill, it is not very clear that the letter containing the writ will necessarily be served upon the right person, and I see from paragraph (c) of Clause 2 that if the delivery of the letter cannot be made it is to be returned. Does that mean, if delivery cannot be made to the addressee? I believe that under our system in this country a registered letter may be handed to anybody, not necessarily the addressee, as long as the Post Office get a receipt saying that the letter has been delivered. It is moat important, of course, that in the case of all processes of court, when they are served by methods such as this, it should be perfectly clear and above all doubt that they have been handed to the right person. I think that that is a point of very great importance which will have to be considered in Committee.

Mr. JOHNSTON

There are one or two points upon which I should like to ask the Solicitor-General for a brief explanation before this Bill passes to the Scottish Grand Committee. For example, in paragraph (c) of Clause 2, we find that in the case of arrestment, when service is to be made by registered letter upon an alleged debtor, a notice is to be written or printed on the back of the registered letter to something like this effect: This letter contains"— and then it specifies the writ, going on to say: If delivery of the letter cannot be made it is to be returned immediately to"— giving the name and address of the law agent, messenger-at-arms or sheriff officer. I can imagine that a method such as this might quite well be used to ruin a man's credit. As the Solicitor-General will be perfectly well aware, in many of the country districts, in the Islands particularly, a number of these people deal on long-term credit. There are all sorts of men going about selling sewing machines, and so on, Scottish drapers selling suits of clothes, boots, and so on, on long-term credit, and it may be that from one cause or another—perhaps a failure of the steamer service, or a bad harvest or what not—one of these poor men in these outlandish parts may be unable properly to pay up to date, or to pay the usually exorbitant interest charged upon these long-term credits. If he is sued in a Sheriff Court, let us say 150 or 200 miles away, with no opportunity for defending himself, perhaps for a very small debt, he then gets a registered envelope with this printed notice stuck on the back, for everyone in the Post Office, and everyone else, to see. One can imagine how the news of a notice of that kind would spread and do immense harm to a man's business without any adequate justification whatever. The Solicitor-General might perhaps explain precisely why this is put in at all and what purpose is served by it, and whether the purpose, even if a good one, is not destroyed by the extraordinary harm which may result in destroying the credit or reputation of any number of poor men whose only offence may have been that they, or more particularly their wives, may have got into the hands of a firm of sharks who go about selling goods at extraordinary profits.

Then the Solicitor-General told us there is now a considerable diminution in the number of messengers-at-arms and sheriff court officers. I should like the Solicitor-General to tell us why it is that proper arrangements cannot be made whereby these legal processes can be served very much cheaper. Why cannot we extend the number of persons who are capable of serving these notices? Messengers-at-arms and sheriff court officers are a close corporation. How are they appointed? Can anyone get into the job, because there are any number of unemployed persons, for example, who would be glad to take service in any kind of remunerative employment? How is it these messengers-at-arms have been for so long in a kind of privileged occupation which outsiders apparently cannot enter?

The SOLICITOR-GENERAL for SCOTLAND

The amount of business available for these officers is not sufficient to warrant any more being appointed. The whole point of the Bill is to recognise that fact and to try to cheapen the process of execution of diligence, and accordingly Clause 3 allows the sheriffs, wherever there is not a Messenger-at-arms, to appoint any person to that office. I appreciate the hon. Member's point that in the case of service by post the nature of the letter may become known to other people, and I will pass it on to the Lord Advocate for his consideration. The other point, as to the difficulty of showing whether the particular person did in fact receive the registered letter, is always a difficulty to a certain extent, and there is a provision in Sub-section (2) dealing with a case in which the writ is not received by the person himself or by someone on his behalf. It would not do to give it to any person. It would not be sufficient to give it to any Tom, Dick or Harry. You require to give it to some person who is entitled to receive it as representing the addresses.

Mr. JOHNSTON

Can the hon. Gentleman answer the question I put, perhaps not very clearly, as to how this association or company of messengers-at-arms are enrolled and what are their privileges and remuneration, and could there not be an opening made for persons who would be willing to undertake the function by breaking up a close monopoly, if it is a close monopoly, which I understand has existed for a very considerable time. Further, while it is true that the purpose of the Bill is to cheapen legal process—and to that extent, we are in entire agreement—the very fact that the Bill provides for postal citation by registered envelope seems to show that there is still a considerable amount of business in the country. The purpose of the Bill Seems rather to destroy the hon. and learned Gentleman's own argument.

The SOLICITOR-GENERAL for SCOTLAND

There is not a close corporation of messengers-at-arms and sheriff officers. The difficulty in getting more into the business is that there is not business for more. Every messenger-at-arms and sheriff officer has to find "caution." In that sense only is it a close corporation. They have to be men who can find caution for the due performance of their office, and as they are entrusted with money and property it is right that they should find caution for their good behaviour. There is no objection to anyone properly qualified entering the profession.

Mr. MAXTON

There is a point on Clause 3 on which I am anxious for information. It says: The sheriff may, if he shall think fit, grant authority to any person whom he may deem suitable (including the law agent of the party presenting the extract, decree or warrant, or any police constable) to execute such decree or warrant, and the person so authorised shall as regards any diligence or execution competent on such decree or warrant have all the powers of a messenger-at-arms or sheriff officer. Do I gather that the Clause in brackets means that the law agent who appears in the Court against a particular person may be also the person executing the decree against him? If that is so, it seems to be rather objectionable and, I should think, quite unusual.

The SOLICITOR-GENERAL for SCOTLAND

In this Clause we are giving effect to a recommendation. I admit there may be difference of opinion with regard to the desirability of a law agent of the party, or even a police constable, executing a diligence, but that is a question for the Committee. As regards the law agent, if there is no other suitable person, I, myself, do not see any objection to execution by a lawyer. If the arrest is done illegally, an action for damages will lie. I do not think there will be any practical danger in executing the diligence. Again, that is a point of detail which may quite properly be dealt with in Committee.

Mr. MAXTON

It seems to me this is something more than a point of detail. This is the exact point where the Bill begins seriously to affect the rights of the individual proceeded against. I have not any personal experience of the operation of the Civil Law of Scotland, but it seems to me that this Clause confers a tremendous power. Am I to understand that the man who has actually conducted the case in Court, and got a decree for, say, £10 against a particular citizen, is empowered under this Clause to walk into that person's house and say, "You have not paid the £10 and I am going—

Mr. SPEAKER

I thought the hon. Member had only risen to put a further question. He is not entitled to make a second speech.

Mr. MAXTON

Surely, Mr. Speaker, you are not going to describe the original question which I put to the Solicitor-General as a speech.

Mr. SPEAKER

There was argument in it as well as question. The hon. Member, of course, can press his question.

Mr. MAXTON

I will put the point as a question, and as briefly as possible. Am I to understand that a lawyer can walk into that person's house, failing payment of the £10, for which he has obtained a decree, and say, "I am going to take your piano or your sideboard," or any of the appurtenances of a highland home—I suppose it is only in the remote reasons that this will operate—and that he is to be the judge of the things that it is necessary for him to poind? Is he going to get the £10 that the Court has awarded to his client in that way?

The SOLICITOR - GENERAL for SCOTLAND

Under the Clause, the result would be that the law agent would be in exactly the same position as a messenger-at-arms. With regard to arrestment, it rests with the arrestee; there cannot be much objection to that. The only question will be in poinding, in which the debtor is charged to pay. If he does not pay within so many days, the law agent would go, just as a messenger-at-arms would go, and select certain articles of furniture. In doing that, I do not see how the law agent could really do any harm other than the messenger-at-arms would do, because the articles are sold, and if, say, they were sold for £15, either the messenger-at-arms or the lawyer would require to account for the balance. It is not a practical difficulty. The point can be, dealt with in Committee, and I will mention it to the Lord Advocate.

Mr. MAXTON

I will take the opportunity of raising the matter in Committee. The law agent is different from the messenger-at-arms in this connection, because the messenger-at-arms is a detached unprejudiced official of the State, while the lawyer is a prejudiced party in the case. Supposing he also happens to be the local auctioneer. Let us remember the type of community with which we are dealing. It seems to me that this appears to be a tremendously vicious circle, and that we should be very wise in Committee if we did not allow it.

Question put, and agreed to.

Bill read a Second time, and committed to a Standing Committee.