CLAUSE 6.—(Form of proceedings in the Court of Session.) (Hansard, 18 July 1933)

§ The LORD ADVOCATE
I beg to move, in page 5, line 13, to leave out 'the second word "to,"and to insert instead thereof the word "in."
This is purely formal, as are the following three Amendments on the Paper.

§ Mr. GUY
I beg to move, in page 6, line 25, at the end, to insert the words: (8) Any application to the Court for a decree conform on a decree pronounced in the Court of the Lord Lyon King of Arms shall be in the form of a petition which shall be presented to a Lord Ordinary in the Outer House. The object of this Amendment is not to make any alteration in the law or the procedure of the Court of Session, but to make it clear what is the appropriate procedure for enforcing a decree of the Lyon Court. Perhaps it might not be amiss if I said a word or two about the Court of the Lord Lyon. It is the Scottish equivalent of the English 1709 College of Heralds, but there are two important distinctions as regards the Court of the Lord Lyon. First, it is based upon statutory authority, and in the second place the fees and the penalties from this Court go to the Treasury, which does not apply to the English College of Heralds. The functions of the Lord Lyon are diverse; they are partly ministerial or executive and partly judicial. The main duty of the Lord Lyon is to keep the public register of all arms and armorial bearings for Scotland. In carrying out that duty, which is imposed upon the Lord Lyon by an early Act of 1672, the Lord Lyon has the power to charge fees and to impose penalties, and it may be of some interest to note that the old statutory penalty still remains for a breach of the register or for using arms or armorial bearings which are not registered, of £100 Scots, which only amounts to £8 6s. 8d. sterling.
The point about the fees going to the Treasury rests in this, that the Court of the Lord Lyon is not only self-supporting, but each year makes a profit, which goes to the benefit of the taxpayer, and therefore the taxpayer has an interest, not only in seeing that the dignity of the court is maintained, but that the decrees of the court are properly enforced. Here is where the difficulty comes in because there has been some doubt as to the appropriate method of enforcing a decree of the Court of the Lord Lyon, which is, of course, an inferior court to the Court of Session. The matter was considered a few years ago in the case in the Court of Session of Macrae's Trustees against the Lord Lyon, and I should like to quote a word or two which was said by the late Lord Constable in his judgment, when he stated: I think it is clear that the authority of the Court of Session is required before execution. Later he said: The only method of enforcement would appear to be by application for a decree conform. In the earlier days the machinery for the enforcement of the decree of the Lyon Court was an application for Letters of Horning, but that procedure is now almost entirely obsolete, and a petition for a decree conform would be not only simpler but less expensive—a not unimportant point. Another point is that as 1710 far back as 1822 in the tenth report of the Commission on the Courts of Justice in Scotland, there was a recommendation that the Lyon Court should be provided with some machinery for enforcing decrees. Unfortunately, this was overlooked when the Personal Diligence Act was passed in 1838, and was overlooked again in 1867 when the Lyon Court Act was passed. If the late Lord Constable was right that the appropriate machinery is by an application to the Court of Session for a decree conform, then this Amendment, if the Lord Advocate will see his way to accept it, will clarify the law and will remove any doubt as to what is the appropriate step to take to enforce such a decree.

§ Mr. BURNETT
I beg to second the Amendment.
I do so with a certain amount of diffidence as one who has not been called to the Scottish Bar and whose legal training has been entirely in England, but fortunately my hon. Friend has made the task very easy as he has covered the ground so fully. As he has stated, it is a very reasonable proposition that the court which has the pronouncing of decrees should also have the power of executing diligence when enforcing decrees. This was clearly pointed out by the commissioners in 1822, and it is perhaps unfortunate that in the Personal Diligence Act of 1838 the Lyon Court was not included, as should have naturally been the case. This might have been remedied when the Lyon Court became a source of profit to the revenue in the Lyon Office Act of 1867, but this was not done, and the procedure has gone on on the old lines from letters of Horning to the present day. Letters of Horning and the Bill Chamber are to be abolished in this Bill, and consequently the decree of the Lyon Court will be more or less left in the air. I think that it will be very unfortunate if something is not done to regularise the proceedings in this matter. There is no question that as long as doubt remains in this matter there is bound to be legal expense in having it set at rest. For that reason I hope that the Lord Advocate will see his way to accept the Amendment, which will bring the Lyon Court into line with other courts issuing decrees.

§ The LORD ADVOCATE
Under the provisions of this Bill the forms of process in our courts are to be the subject of inquiry by a Rules Council to be set up under the Bill. It would be unfortunate if we were to insert any provision dealing with this particular matter. It is much better that the appropriate forms of process in this case, whether the decree of the Lyon Court is to be enforced by a decree conform or by means of petition, should be considered together. I do not say that we are out of sympathy with the purpose of this Amendment, but in order that the Rules Council may have an entirely free hand in dealing with all the forms of process, I regret that I do not see my way to accept it.

§ Mr. J. REID
I am glad that the Lord Advocate has taken up that point of view. The Lord Lyon has not attempted to enforce decrees in matters that do not concern him intimately, and the only necessity for the Amendment that I can see is that there is a certain amount of trouble over flying the Scottish flag. No doubt if he attempts to enforce his views on that question there will be difficulties, but if he does not do that no difficulty can be anticipated. In my view, he ought not to be encouraged to take up the attitude that he is taking up; therefore I am against the Amendment.