§ Order for Second Reading read.
§ 6.21 p.m.
§ The LORD ADVOCATE (Mr. Craigie Aitchison)
I beg to move, "That, the Bill be now read a Second time."
I propose to state very briefly to the House, and as clearly as I can, the main purpose of the Measure. The Bill, as the title indicates, relates to the administration of justice in Scotland. It is a matter of more than professional interest. It affects the general community. Every community has a profound interest to see that a machinery of justice exists which is at once efficient and adequate to meet the requirements of the people. The primary purpose of the Bill is the simplification of procedure in the Court of Session. We aim at greater directness and simplicity, the cutting away of cumbrous and unnecessary forms, so that our forms of process and procedure shall not impede but assist and accelerate the doing of justice.
When we reflect that it is now more than 65 years since the last Act relating to the procedure of the Supreme Court in Scotland was passed—the Court of Session Act, 1868, the need of reform becomes self-evident. The methods which were suitable a century ago, or even half a century ago, are no longer in harmony with the requirements of to-day. The method to be followed in obtaining the desired simplicity is that we propose to entrust to the Court, and by the Court I mean the judges of the Court, with the assistance of the Rules Council to be set up under the Bill, the task of framing the simplified processes which are regarded as necessary for the due expedition of the business of the court. The proposal has called forth a certain amount of criticism. The view has been expressed in certain quarters that it would be better if the Government were to frame the simplified forms 1762 of process and put them into a Schedule or Schedules of the Bill. We have given very careful consideration to the matter, and we take the view that it is not desirable to stereotype forms by statutory enactment. While there must be uniformity, it is desirable to have flexibility, and we think that that can best be accomplished by leaving it to the Court, with the assistance of the Rules Council, to fashion such rules and procedure and forms of process as circumstances may require. Apart from that purely formal matter, the Bill contains some changes which go beyond mere matters of form.
I will indicate to the House very generally, without entering into details which will be appropriate to the Committee stage of the Bill, what these matters of substance are. In the first place, we propose to make provision for the summary trial of civil cases. The important Clause is Clause 10 of the Bill. If parties choose, they may short-circuit procedure. If they are agreed they may invoke the assistance of an Outer House Judge, who is really to be in the position of an arbiter whose decision shall be final and binding on the parties, and not reviewable. It is a very valuable and far-reaching provision, and ought to be of the very greatest value to a commercial community such as we have in the city of Glasgow. It means that if a dispute arises, say, between two members of the business community, regarding any matter, say a matter of contract, it will not be necessary for the one party to institute an action according to the existing forms of process which are relatively cumbersome and out of date, but the parties can agree to go before a Judge with a very simplified process which will enable the matters in dispute to be adjudicated upon and a decision obtained. This proposal is not in any way confined to actions relating to mercantile disputes. The Clause applies to any disputes or questions that may arise on which it is desired to obtain a decision of one of His Majesty's Judges, except questions of status which, for obvious reasons, we exempt from the scope of the new provision.
Another change of substance in the Bill is the provision for enabling trustees under any trust deed to obtain the direc- 1763 tion of the court on questions relating to the investment, distribution, management or administration of a trust estate. That is provided for in Clause 17. We think that such a provision is long overdue, and we hope that it may be of very great value to trustees who are charged with important and often very difficult questions of trust administration. I ought to mention another point of real importance. By the provision contained in Clause 16 (e) the court is empoweredto provide for the admission, on such conditions as may be prescribed, of affidavits, in lieu of parole evidence, in any issue not affecting the status of any person.We have borrowed that from English practice. The method of proving facts by affidavit has hitherto been contrary to our practice in Scotland, but we have thought that there is room for introducing into our practice a method which has for long satisfactorily obtained in England. Accordingly, we propose to empower the Court to make regulations dealing with that matter. [An HON. MEMBER: "By what process?"] By an Act of Sederunt.
§ Sir A. SINCLAIR
Will the Lord Advocate, for the benefit of those who are not lawyers, explain what issues affecting status mean?
§ The LORD ADVOCATE
I can answer that question by illustration. For example, a matrimonial cause such as the question of the right of a party to divorce, or again there are questions affecting legitimacy; the claim of a person to be declared legitimate or a question of paternity. Any question of that kind affecting what we call status would be removed from the ambit of the provision which allows arbitration, and the ordinary process would need to apply.
I would also like to draw the attention of the House to one further provision contained in Clause 16. We propose to empower the Court, by paragraph (f),to provide for the payment into Court and the investment or application of sums of money awarded in any action of damages in the Court to a pupil or a minor.That is, I fear, a very much needed reform. In many cases that have come to my personal notice sums awarded to children in pupilarity or to a minor have been dissipated, and it is important that 1764 the Court should be given power in the suitable case, which would be the exceptional case, to safeguard any funds that might be awarded either by the Court or by a jury, in the interests of the pupil or the minor on whose behalf and to whom the award has been made. Those are some of the more important changes proposed by this part of the Bill.
The most important thing, apart from the simplification of forms, is the setting up of machinery to enable litigants to invoke the jurisdiction of a judge in the Court of Session as arbiter. I do not propose to enter into further detail on this part of the Bill, because the questions that arise are more suited to discussion and consideration in Committee than to exposition on the Second Reading. I should like, however, to mention what I might call a negative feature of the Bill. I should have explained earlier that the Bill is based upon the Report of the Royal Commission on the Court of Session, which was presided over by Lord Clyde, the Lord President of the Court. The Commission in their Report made certain recommendations in regard to jury trial in civil courts. Under our existing law and practice there are certain types of action which are appropriated, as we say, to jury trial, and the Commission has reported, on page 95, as follows:We further recommend that the last traces of appropriation should be swept away by repeal, leaving the parties themselves (if they agree), or the Court (if they do not agree) to select—in any case whatsoever—that method of inquiry which the character and circumstances of the dispute render most suitable.We have not embodied that recommendation in the Bill. If parties are agreed under the existing law and practice to dispense with jury trial, there is nothing in our existing procedure to prevent that being done, but, on the other hand, if parties are not agreed then, for my part, I think there should be no interference with the existing law and practice. We ought not to forget that the right of a citizen to jury trial in civil cases is a very important and valuable one. It is a right which is sanctioned by the practice of more than 100 years and, in my view, it ought not to be lightly interfered with. It may be true that in an odd case a jury may be swayed to some extent by considerations of sympathy, but I cannot help thinking that it is better 1765 that juries should be swayed by sympathy than that judges should be swayed by too purely legal and technical considerations. I am opposed to the embodiment of that particular recommendation in the provisions of the Bill, but in this matter, as upon every other matter, we shall welcome the freest discussion in Committee.
Another chapter of the Bill relates to criminal jury trials. That is dealt with in Clause 19. I can explain in a very few words what we propose to do in this matter. At the present time the jury in a criminal case consists of 15 jurors. It is rather an odd thing that the number 15 is not statutory. It goes far back in our legal history. It seems to have grown up through centuries of practice as the number that was regarded as a reasonable number for the adjudication of criminal matters. But experience has shown that if a trial is prolonged there is always the risk of a breakdown through the illness of a juror. If that occurs, it means that the trial has to start all over again, in the event of the juror not recovering so as to be able to proceed. If he does recover, the situation may be met by the Court adjourning. When you are dealing with a lengthy trial, or what is likely to be a lengthy trial, nothing could be more inconvenient than that. We had an experience within the last 18 months in a case which ran for six or seven weeks where after 10 days a juror broke down, through no fault of his own, with the result that we had to adjourn for a period of 10 days. If the juror had been unable to resume we should have had to begin all over again.
That, I am satisfied, is bad from the point of view of the administration of criminal justice. It is bad from the point of view of the prosecutor, because the prosecutor is working under a constant sense of the danger of a breakdown. It is equally bad from the point of view of the defence, because the defending counsel knows that if in a serious case there is a breakdown the prosecution would be almost bound to proceed with another prosecution. Therefore, the defence has nothing to gain by a breakdown. The question bow a situation of that kind is to be dealt with is one upon which there has been a considerable variety of suggestion. It has been suggested on the one band that more than 15 jurors should be sworn, that 20, say, should be sworn, and that if one of the 1766 15 dropped out another one should come in. I do not like that method. The method we propose is this—again it is a matter for consideration in Committee—that if a juror breaks down, we should go on with 14. If another breaks down we should go on with 13, and if another breaks down we should go on with 12, but if another breaks down then we should not go on at all, but should have to start over again. Down to the number of 12 we can go on, with this very important safeguard that in any case we must have eight of the jury for guilty before you can find a verdict of guilty. We maintain a majority of the original number of 15. It is a safeguard for an accused person that a jury cannot find a verdict of guilty unless there are eight jurors in favour of a verdict of guilty, that is a majority of the original number of 15 jurors.
The next part of the Bill relates to the staff of the Court, and to what are matters of office administration. I will not trouble the House with the details. Part IV of the Bill relates to sheriffs and sheriff court. Again, we propose to make provision for a simplification of procedure on much the same lines as we propose to follow in the Court of Session. The Bill also proposes to confer power upon the Secretary of State to unite sheriffdoms. This proposal has called forth a good deal of criticism. At the present time, while There is power in the Secretary of State to reduce the number of sheriff-substitutes, there is no power to reduce the number of sheriffs. Although the proposal has been put in the Bill the Government have an entirely open mind on the matter. There is a good deal to be said for the view that each shire in Scotland should have its sheriff, and it must not be forgotten that, a, sheriff holds not only a judicial office but a very important administrative office, and discharges important administrative functions. Accordingly, this is a matter upon which we shall welcome very full consideration and criticism in Committee.
The remaining part of the Bill, Part V, deals with various miscellaneous matters, and I will only mention one. At the present time agreements are sometimes made between law agents for the sharing of fees, and it is proposed that where arrangements of that kind are made they 1767 should be disclosed to the client. It is only right to say that this proposal came from the solicitors' branch of the profession, who feel as strongly as we do that when these agreements are made they should be stated openly so that the client may know the position. I am sure the House will not think it necessary for me to enter into further detail—
§ Mr. KIRKWOOD
In order to save time, will the Lord Advocate explain how the Bill proposes to deal with the case of sheriffs and deputy sheriffs. Can they be promoted judges?
§ The LORD ADVOCATE
It is not necessary to make any statutory provision in that matter. According to the existing law there is nothing to prevent a sheriff-substitute being promoted sheriff. There is nothing to prevent a sheriff or a sheriff-substitute being promoted to the bench of the Supreme Court.
§ Mr. BUCHANAN
Hitherto, in the sheriff court it has been possible for a solicitor to become a sheriff, but as I read the Bill we are departing from this practice. He must be an advocate. The Bill says that the person so appointed must be an advocate of at least five years standing. The point is that a practising solicitor may now be a sheriff, but the Bill says that in future he must be an advocate.
§ The LORD ADVOCATE
The hon. Member is under a misapprehension. He is quite right in saying that under the existing law a solicitor of five years standing can be appointed sheriff-substitute. We do not propose to interfere with that. I am not aware of any Clause in the Bill which interferes with the existing law in that respect.
§ The LORD ADVOCATE
That Subsection only deals with interim appointments of sheriff-principals, not sheriff-substitutes.
§ Mr. BUCHANAN
It means, in effect, that no sheriff-substitute who is a solicitor now can become a sheriff-principal or a judge.
§ The LORD ADVOCATE
The hon. Member must read Sub-section (4) of the Clause carefully. It says: 1768When a vacancy shall occur in the office of sheriff or any sheriffdom the Secretary of State may, if he deems it expedient to do so, pending the consideration of the question whether an order under this Section affecting such sheriffdom should be made, or the coming into force of any such order, appoint a sheriff of some other sheriffdom, or an advocate of not less than five years' standing, to act as interim sheriff of such sheriffdom.That is merely a provision for the interim regulation of the matter, and I want to assure the hon. Member that there is no intention of interfering with the existing law which makes a solicitor eligible for appointment to the office of sheriff-substitute. The Bill does not touch that matter in any way.
§ Mr. KIRKWOOD
I am interested in this matter, and I want to put the point to the Lord Advocate that there is nothing in the Bill which is going to alter the present law, that a deputy-sheriff or sheriff-principal can now reach the office of judge. There is nothing which debars him from being made a judge?
§ The LORD ADVOCATE
At the present time there is no legal barrier to any sheriff or sheriff-substitute being appointed to the Supreme Court, possibly with this limitation, that a sheriff-substitute who has been a solicitor and not a member of the bar may not be eligible for appointment.
§ Mr. MACQUISTEN
There was the case of a solicitor, I canot remember now the name of the judge, who once was made a judge of the Court of Session in the middle of the last century.
§ The LORD ADVOCATE
That may be so, but I do not think that you will find that many people have been appointed to the bench who were not members of the Faculty of Advocates.
§ The LORD ADVOCATE
The right hon. Member for Hillhead (Sir R. Horne) reminds me that there was a Lord President of the Court of Session, I cannot recall his name, who was a Church dignitary—
§ The LORD ADVOCATE
If the hon. Member for Dumbarton Burghs (Mr. 1769 Kirkwood) desires to put down an Amendment to this Clause we will give the matter due consideration. I hope the House will absolve me from the necessity of referring to these matters in detail and will not think that I am dealing with the matter in a somewhat summary fashion. The Bill, after all, is one for Committee. If I thought it represented the end of legal reform in Scotland I should have very little satisfaction in introducing it. I hope it will not be the end of legal reform in Scotland but, on the contrary, will be regarded as the beginning of legal reform. There are many directions in which we may look to effect legal reforms. A great deal might be done in the direction of cheapening litigation. I do not know whether it is appreciated by the House that at the present time litigants in Scotland have to pay considerable sums of money to maintain the machinery of justice. They have to pay what are called court dues, which are used in order to maintain the machinery necessary for the administration of justice in Scotland. That is fundamentally wrong.
The cost of running the machine which is required for the administration of justice should be a State charge, and I hope in easier times that it may be possible to make effective representations on that matter in the proper quarter. I should like to see all financial barriers that may exist at the entrance to a great profession removed. I feel that the doors of a great profession such as the Bar should be flung open to those of the most modest and humble means. That is a matter which is receiving the anxious consideration of the Solicitor-General and myself. I should like to add this. It is now more than 400 years since the institution of the College of Justice in Scotland. During those centuries the College of Justice, or as we now call it the Court of Session, has played a great part and has discharged a great function in the life of Scotland. Whatever criticisms may be made upon it—and no human institution is immune from criticism—I believe it commands to-day in a high degree the respect and confidence of the people of Scotland. That is why I invite all sections of the House to give this Bill a Second Reading and, in Committee, to co-operate with the Government in creating machinery which 1770 will be adequate for the administration of justice in Scotland.
§ 7.1 p.m.
§ Mr. MACLEAN
Speaking as a layman, I wish to say that at this stage we will offer no opposition, by way of dividing the House, to the Bill which has been moved by the Lord Advocate after his very able explanation of the different terms contained in it. I would also like to inform my right hon. and learned Friend, and his colleague, that we will take advantage of the opportunity afforded in Committee to put our views forward and endeavour to get the Bill altered as we would like it. Afterwards we hope to get the House to accept any proposals we may make. The Bill, as now introduced, is a really laudable effort, not merely to simplify procedure in the courts of Scotland, but also to reduce expense to the litigants. That is a very laudable object indeed, and one which I agree with the Lord Advocate has been "a lang time cumin."
The cost of litigation was shown recently when we had to vote law charges for Scotland with regard to one particular trial. That was evidence of the necessity for some improvement being made. I do not intend to take up much of the time of the House. Most of the things we have to say can be as well said on Amendments in the Committee stage. I would, however, like to draw the attention of the Lord Advocate to one or two things of which I have made a note, and which the hon. Member for Dumbarton Burghs (Mr. Kirkwood) has already mentioned. At the present time it seems almost impossible for any man without money, although he has been educated and gone through the necessary stages of education in the law, to stand in the Court of Session and speak on behalf of anyone there. It is impossible for him, unless he has the necessary fees to pay to the Faculty of Advocates. Of two individuals going through the same classes of the University, taking the same degrees, qualifying and being capped on the same day, one, because he fails to have the necessary money for a deposit with the Faculty of Advocates, will not be permitted to go into the honourable profession of advocate, and go on to the highest positions in the Justiciary in Scotland. The other man, who has gone to the same classes, taken the same 1771 degrees at the same time, and probably gained the same points in his various classes, is called to the offices that the first individual, by reason of the poverty of his parents, is prevented from reaching in the higher stage of the profession. That is an evil in the Scottish legal procedure, and is one which has long demanded removal.
§ The LORD ADVOCATE
With regard to the financial barrier, it was that I had in view when I said we had it under consideration. The problem is complicated by two factors. One is that the entrance fees are mixed up with insurance, and the other is that they are mixed up with maintaining the Library, which is absolutely essential if our Courts are to be run. I entirely sympathise with the hon. Member's point of view.
§ Mr. MACLEAN
I was going to refer to the remarks made by the Lord Advocate, and to say how welcome they were in many parts of this House, and outside this House as well. Where people are having sons educated in the legal profession they feel that there is a very severe barrier. The Lord Advocate has taken up that point, and we are pleased to have support in such high quarters as the Lord Advocate's office in our endeavour to remove any financial barrier. As to the Library, libraries have to be kept up and yet the same sums have not got to be paid in England. The sum paid to the Faculty of Advocates has to be portioned out for various purposes, but the fact that we have such a high financial barrier in Scotland has long been a sore point. The Lord Advocate and the Solicitor-General for Scotland know that it has long been a sore point, not only in the legal profession but among families who desire to have sons educated in the legal profession, and who are providing for these sons by various methods of sacrifice while they are at the universities. I am glad that point has been cleared up, and hon. Members of this House among whom are included Members of the Faculty of Advocates will not stand, I am sure, upon their dignity, or privilege, but render all the assistance possible in giving opportunities to the sons of poorer families to have the same privileges, and the same right of entry to the profession and the highest places, as they enjoy at the present time.
1772 There is another point. It is not one confined to this Act. It is one which has occurred very often in recent Acts, and in fact practically in every Act passed in this House giving administrative powers to any Department. With regard to the issuing of regulations, almost every Act passed by this House which is to be administered by one of the Government Departments, is an Act which only gives enabling powers. The actual powers themselves are contained in regulations which are laid before this House and, after lying upon the Table in the usual form for a certain number of days, become operative in the country. Unless one is following very carefully the regulations laid upon the Table of this House one does not actually know what the law of the land really is, until one probably receives a message from some constituent telling him of things which are happening. If an hon. Member looks up any particular Act he does not find the matter there, but he finds that a regulation has been passed some months, or years, before giving a Department power to carry out a particular matter, and that it has been done in a way which has caused grievance to this particular individual. I find in this Bill practically the same grievance and also, I should say, a continuation of the same evil of regulation. The regulations upon which the law acts are called Acts of Sederunt. I find here, in Clause after Clause and paragraph after paragraph, reference to the Secretary of State who may, or shall, by Act of Sederunt do certain things—in other words he is empowered to issue the type of regulation which we know in Scotland under that name.
§ The LORD ADVOCATE
As far as regulations are made, they are made by the Judges of the Court, with the assistance of the Rules Council, and embodied in the Acts of Sederunt. These will be laid on the Table of the House for the approval of the House, and for the approval of the House in the sense that they will be void if a Resolution is passed by either House.
§ Mr. MACLEAN
Under Part I of the Bill entitled "Court of Session," and all through, we have this thing occurring. It goes on Clause after Clause. The question I would like to put to the Lord Advocate and the Solicitor-General for Scotland is this: Is it not possible, as 1773 far as can be humanly done, to put into the Bill itself the various powers which we are prescribing for the Court of Session to apply by Act of Sederunt? It would make the law of Scotland, and also the law of England if it could be carried into that law, more understandable by the people who have to read it, and those people who are sometimes hauled up for the violation of what is called an Act, and which is really a violation of regulations which a Minister, or the Court of Session, has been empowered to issue under a particular Act of Parliament. Government by regulation is becoming really a danger in the country—a menace. People do not know by what Acts of Parliament they are being governed. They are not being governed by Acts of Parliament in reality; they are being governed by regulations which very few Members of the House of Commons have ever seen. There was an Act, passed two or three years ago, every section of which commenced with the words, "That the Minister shall by regulation." There were six Sections in that Act and every one was carried into effect, not by the Act of Parliament upon which the House had deliberated and discussed before finally passing, but by regulations the Minister was empowered to issue after laying them for a certain period on the Table of the House.
This House has the duty of passing Acts of Parliament. It is looked upon as the law-making assembly of the nation and is regarded as the power which imposes laws upon the people of the country. It is high time that the House had this grievance brought to its attention. It is not that anything can be done in this Bill to deal with it, but at least some attention should be paid to my complaint and to the fact that this grievance exists and the House should see to it that future Bills, whether English or Scottish, shall contain the actual powers which are to be exercised under them. The country should be ruled according to Acts of Parliament and not by a series of regulations issued from time to time by Departments. Few Members of the House know anything about these regulations and even lawyers are not acquainted with them, unless in connection with some special case upon which they have been asked to give an opinion. If I may say so we 1774 should see to it that a saner form of legislation is passed by this House.
The Lord Advocate has brought before us a Bill which will be welcome. I am particularly glad at the interpolation which he made, a short time ago and that the matter then referred to is being considered by the Faculty of Advocates. I hope that at no distant date we shall see the avenue to the Lord Presidency, the highest judicial position in Scotland, opened to the son of the poorest family in Scotland. Poor families as I have said may be making sacrifices day after day to send a son to the University to study law, and the son of a poor family ought to have the opportunity of rising to the highest and most respected position in the legal profession in Scotland.
§ 7.18 p.m.
§ Sir MURDOCH McKENZIE WOOD
Every Member of the House, I am sure, will congratulate the Lord Advocate on having had the honour of introducing such an ambitious Measure. It is not only ambitious, but is of far-reaching importance. It is rather unusual, by the way, for this House to consider in one day two Bills pertaining to Scotland alone. This is a highly technical Bill and one which can only be discussed adequately by experts. We are fortunate in having in this House a very strong team from the Faculty of Advocates in Edinburgh, and I have no doubt we shall listen to their views on this Bill with attention. Those of us who are not members of the Faculty will, no doubt, be very largely guided by those views, but it would be a pity if the discussion of this subject were left entirely to the experts from Parliament House. Membership of the Faculty, although it may be a qualification for discussing this Measure, is also to some extent a disqualification. There are certain matters of some delicacy upon which those who do not belong to that august body may speak with greater freedom, and I should like to make some comments as an outsider. Everyone will agree with the object of the Bill which is to cheapen and accelerate justice. There is one proposal on which the Government may be congratulated particularly because it is a revolutionary proposal and the experiment which it indicates will be watched with great interest. That is the proposal for the summary trial of certain cases in 1775 the Court of Session. I believe the commercial community will welcome this experiment and it will be of interest to see to what extent they take advantage of it and what success will attend it.
As I have said this is a Bill for experts and it is also a Bill the interest of which lies to a great exent in its details. Therefore its consideration must be left largely to the Committee stage, but there are two questions of major importance to which I invite the attention of the Lord Advocate and the Solicitor-General. Everyone has noticed the rise in the prestige and importance in the judicial life of Scotland of the sheriff courts in recent years. Hardly a Scottish Act has been passed recently which has not put some additional work on those courts. I have often had doubts as to whether, under present conditions, the prospects and emoluments of sheriffs-substitute are sufficient to ensure the maintenance of the high standard necessary in the administration of the work of these courts. The status of the sheriff-substitute in Scotland ought to be much the same as that of the county court judge in England. Their duties in some respects are more difficult because they include criminal as well as civil administration and they have a wider civil jurisdiction. Yet they are paid much less than the county court judges in England. It is not that I want to give more money to this class. I want to give them as much as they are entitled to, but I aim not thinking of their interests so much as the interests of the courts and the litigants. If you do not make a position of this kind sufficiently attractive, the best men will not come to it, and the status of the courts will fall. I am not going to deal any more with the question of emoluments except to express the hope that the Government will consider it and will realise that by starving the sheriffs-substitute in this manner they may do great harm to the sheriff courts.
Then there is the question of the prospects of these sheriffs-substitute. The hon. Member for Dumbarton Burghs (Mr. Kirkwood) referred to this matter and it is not necessary to say much more on the subject, but I think something could be done to improve the prospects of sheriffs-substitute so that they may know that there will be a reward for good and 1776 effective service on the bench, in additional chances of promotion. I realise that there is no legal objection to these judges being promoted, but it is not merely a question of whether they are legally eligible or not; it is a question of whether, in point of fact, there is any chance of promotion. Not long ago the experiment was made in England of the promotion of a county court judge to the High Court bench and one of the present judges of the High Court in England was formerly a county court judge. I hope the Government will consider whether they might not do something to assist the sheriff courts and the sheriffs-substitute by promoting some of the sheriffs-principal who are engaged entirely in judicial work and not merely those who are carrying on work at the Bar.
The other major question to which I wish to direct attention is one upon which many people in Scotland feel strongly. It is a proposal with which I myself have great sympathy, though I notice that it was considered and turned down by Lord Clyde's Committee. That is the reduction in the number of judges in the Court of Session. There are at present 13, and many people in Scotland think that there are more judges than the work which falls upon them makes necessary. I have tried to institute a statistical comparison between the work done by these judges in Scotland and the work of the judges in the High Court in London. I tried to work out the judicial statistics but it is very difficult to get a proper comparison. It is difficult to be sure that one is comparing like with like. I did my best by making all allowances and the result was such as to startle me, so much was the comparison in favour of the judges in London, as far as the number of cases was concerned. Indeed, it was so much in their favour that I am not going to give the figures to the House. I feel that I must have made some mistake, but the investigation certainly confirmed my belief that the work which the judges in Scotland do is very much less than the work done by judges of the same status in London. I suggest that the Government might again consider seriously whether the number of the Scottish judges might not be reduced. There is also this consideration to be taken into account. If we compare the Court of Appeal in England with the Inner House in Scotland, we find that both sit in two 1777 divisions, but in the Court of Appeal in England, which deals with as big cases as and probably bigger cases than the Inner House in Scotland, both divisions are constituted of three judges. In Scotland there are four judges in each division.
§ The LORD ADVOCATE
Is the hon. Member keeping in view the fact that in Scotland the appeal judges go on circuit, whereas in England they do not? That is a very important distinction, and if each division of the Inner House were confined to three judges only, one might be taken away on circuit, leaving only two.
§ Sir M. WOOD
I am aware of that, and I do not think that the consideration that the Lord Advocate advances touches the question. I think that I am right in saying that the report of the Clyde Commission said that the amount of work in the justiciary courts in Scotland amounted on the average to 150 days for one judge. If that is so, one of those judges would have been sufficient to do all the work which is entailed upon them. Even if what my right hon. and learned Friend said is correct, it does not really have any bearing on the question whether there is a real reason for our having four judges in each of the Divisions of the Inner House in Scotland whereas only three are considered sufficient in England. I suggest that the right hon. Gentleman ought to consider this very carefully for I feel certain that here is an opportunity for real economy. I advance this with the greater confidence because in the earlier part of my speech I advanced something that would entail greater expenditure. I congratulate the Government in bringing forward this Bill, and we look forward with great interest to having the details of it thrashed out in Committee.
§ 7.32 p.m.
§ Mr. JAMES JOHNSTON
I feel sure that the hon. Member for Banff (Sir M. Wood) must have suspected himself of some error for he proceeded upon a somewhat false basis in the conclusion he made as to the relevant work performed by the judges in England and Scotland. I know that such calculations are difficult, because I tried in vain to find a workable basis of comparison in the Civil Estimates as between the cost of administration in England and Scotland and 1778 how far in each country it is met by Appropriations-in-Aid. My inclination is to give to this Bill a reception rather more chilly than it has so far met at the hands of the hon. Member for Govan (Mr. Maclean) and the hon. Member for Banff. It could scarcely, I think, be received with great enthusiasm when it is based upon the recommendations of the Royal Commission whose report was received in no quarter with acclamation and in many circles qualified to express an opinion with considerable misgiving. The report commences with an investigation of the history of the volume of litigation in the last hundred years or so and appears to me to start with a doubtful assumption.
It seems to be assumed that a decline in the volume of litigation or the failure of the volume of litigation to keep pace with the growth of the population and trade is necessarily a bad thing for which it is necessary to set out to find a remedy. It is certainly a bad thing, indeed, for the legal profession, but I do not think that one ought to assume without a great deal of thought that, as a social and economic tendency, it is a misfortune that people should be increasingly disposed to settle their differences otherwise than in courts of law. We are told, however, that this Bill is designed to make litigation cheaper and more expeditious, and, if this can be accomplished without sacrifice of efficiency or deterioration in the quality of justice, it will be a great public advantage. Whether the Bill will go very far in that direction may be open to doubt, and I entertain no great expectations of the results that may flow from the proposals in this Bill. The greatest difficulty at present in forming an opinion as to the value of the Bill arises from the fact already referred to that, while it proposes to abolish many of the forms and much of the procedure to which we are accustomed, it proposes to put in their place to a great extent—we do not know what because so much is left perhaps inevitably to be provided for by Act of Sederunt.
The Bill is not altogether clear as to how the transition from the existing code to the new code is to be effected, and it would be much easier to judge the merits of the Bill if, as far as possible, the new forms to be introduced could have been scheduled, or some means could have been devised, so that we 1779 might see in draft, at all events, the new code that is to come into operation before the Bill leaves the House. I am well aware that it may be argued that, inasmuch as the court must be given full power in any case to alter and vary whatever procedure may be set up, it makes no difference whether you schedule forms and a code of procedure or not, because the court would be at complete liberty to alter them, but from a practical point of view it makes a very great difference. What holds the field is apt to stay there. What I may describe as the law of human inertia operates—a law from which the court in the matter of making Acts of Sederunt is certainly not immune. Many reforms might have been introduced ere now without the necessity of legislation.
It is impossible with a Bill of this sort, which really embodies no principle and consists of different parts and clauses dealing with distinct matters, to avoid commenting upon individual clauses, and I should like to say one or two words about Sub-section (1) of Clause 4. Clause 4 proposes to lengthen the period of the formal sittings of the Court of Session, and in my view that change is for the time being not necessary or desirable. I am not going to develop an argument about the other demands on the time of people whose business lies in the courts, but it seems to me that Sub-sections (2) and (5) of Clause 4 are by themselves sufficient to meet any requirements of the present situation without lengthening the formal sittings of the court. This subsection enables the court or any part of it to sit outside the ordinary sessions and also enables certain business to be done on Monday. At present the sessions are long enough to enable the work that comes forward to be undertaken. If longer sessions are intended to reduce the delay which is so much complained of, it should be said that to a very great extent the delay which is complained of by some people arises, not from the procedure of the court or from the congestion in the courts, but from the dilatoriness of parties themselves and their agents and counsel. Anyone walking into a court on any morning will hear 10 applications by counsel to the judge to put cases off for a fortnight for every one that is made to the judge to expedite a hearing.
1780 On a very narrow ground affecting particularly the members of the Bar, I also think that the lengthening of the sessions might be unfortunate. I think that it might make even more uneven the distribution of work among members of the Bar which is already extremely uneven. I do not think that it would be an exaggeration to say that 70 per cent. of the fees earned are earned by 20 per cent. of the practising members. The mere fact that there is a limit to what any one person can do in a short session forces a certain amount of distribution that otherwise might not take place. The lengthening of the sessions would be all the more unfortunate because of what I regard as the ridiculous convention that obliges any member of the Bar who wishes to have any chance of doing any work there to stand the whole time hanging about the precincts of the court. If he could only stay at home, he might employ his time profitably and industrially writing articles in praise of the Prime Minister and his colleagues, or in some other useful and congenial way. Under the present arrangements, a number of people of much erudition and great intelelctual attainments are condemned to spend weary and uncomfortable days of enforced idleness in a draughty and dusty building.
It is a proceeding, in my view, which is just as dispiriting and potentially just as deteriorating as it is for the unemployed artisan to spend months standing against the wall at a street corner. I have been surprised to learn what a big demand there seems to be for readier facilities for people to become members of the Scottish Bar. I have nothing more to say about Clause 4. Clause 6 proposes to put in the place of our present form of summons some new form to be prescribed by Acts of Sederunt. It is always a mistake for a craftsman to destroy the mysteries of his craft. To some extent the lengthy, obscure and pedantic language of the present summons if; a sort of mystery of the lawyers' craft, and to that extent, for sentimental reasons, I shall regret to see it pass.
Now a few words of criticism of certain proposals in the Bill which have met with very special approval from hon. Members who have spoken. Clause 10 proposes to authorise a new kind of summary pro- 1781 cedure. It proposes to enable the parties to any dispute which does not raise a question of personal status to engage one of His Majesty's judges to settle the dispute for them, not under the ordinary procedure, but by such rough-and-ready methods as the parties themselves may agree to. Judges are in the service and the pay of the Crown to dispense public justice in the courts according to the procedure there in force. In my view, who-ever wants to obtain justice in the public courts at the hands of the official judges should be prepared to submit to the ordinary forms of procedure there prescribed and established. The repute of the judges and the purity of the justice should be so great that parties will gladly submit, in order to have the benefit of it, to any additional formality of procedure that it might be possible to dispense with.
I think that this proposal is extremely derogatory to the dignity and status of judges of the Supreme Court, putting them in an invidious position, in which not even a. Justice of the Peace or a magistrate in a burgh court should find himself. I do not say that in certain classes of cases there may not be a good argument in favour of looser and less formal procedure than ordinarily, but, if it be so, the type of case and the procedure itself should be defined, and it should not be left free to parties to settle what procedure is to be adopted by one of the judges in settling a dispute that has arisen between them. I particularly welcome the provision in Clause 17 to enable trustees to obtain the guidance of the court, and I am particularly glad that it has been found possible to incorporate that in the Bill in disregard of the recommendations of the Royal Commission. Upon one subject I find myself in sharp disagreement with the Lord Advocate. The Royal Commission very nearly came down in favour of abolishing jury trials altogether in civil cases. I think it would be an improvement for everybody concerned if what the Royal Commission recommended were done.
If I have little to say about other parts of the Bill, it is not because I do not read them with much regret. There are the changes to be made in the staff of the courts, and things of that sort. Clause 24 proposes that clerks of the court in future should be appointed by the Secretary of State, after consultation 1782 with the Lord President, with the sanction of the Treasury as to numbers. It seems to me that the sanction of the Treasury as to numbers should be requisite only where there is any proposal to increase the number for the time being in force; there should be a check only when there is a proposal to increase the staff. The Lord President should have final power to ensure that the courts are adequately staffed. I think, too, that under Clause 27 the Lord President should have some voice in the fixing of the remuneration of the clerks and other staff of the courts. There is Clause 31 about sheriffs. I think the uniting of sheriffdoms is far too important and serious a thing to be left to be done by the Secretary of State by Order at any time he likes. If Clause 31 remains as it is the Secretary of State will have power to abolish a sheriffdom in effect by uniting it with another, without coming near this House and without being subject to any check. If he had these powers he might well on occasion find that the pressure to which he would be subject by the Treasury would become insufferable. There may be a case now for uniting sheriffdoms. If so, let it be done and done by Statute. There may be 9 case in future for uniting two sheriffdoms. Again let it be done by Statute.
Without being too hostile, I hope that I have succeeded in my ambition to give this Bill a chilly reception. I receive it with no enthusiasm, and I bestow on it no blessing, but I hope that it may prove less subversive than I fear. I accept it as something that is more or less inevitable, in an age when what little remains of dignity and formality that is not directly and patently utilitarian, is increasingly denied any right of survival at all.
§ 7 55 p.m.
I agree with the Lord Advocate that the Court of Session of Scotland is a great and venerable institution, which is regarded by all Scots people with great respect. It has a, long history behind it, and it has laid down sound law for centuries. Let anyone look at the old reports of the 17th and 18th centuries, and he will be astounded at the wisdom of the much shorter decisions given by the judges in those days. It has been said that the judges have not enough to do. The explanation is very 1783 simple. It is all very well for the last speaker to say that he does not like to see people litigating, but surely it is better that people should litigate than suffer serious injustice? What might be called the middle class man in Scotland, the man of small means, is at present suffering great injustice because the doors of the Court of Session are practically closed to him for financial reasons. I have had experience both in the lower branch and the higher branch of the profession, and I know how things work out. The Lord Advocate touched upon this subject.
An action is served, and then when it is coming near the trial a representative of the insurance company comes to the solicitor for the plaintiff or the pursuer. He offers a small sum for the solicitor's client, and then a substantial sum to cover the solicitor's costs. The solicitor sends for his client and says to him: "I have this offer. I admit that it is a miserable offer, but if I go on with this case the Geddes Committee has imposed court dues which are double what they used to be, and there is 10s. an hour charge as well for your counsel's speech," as if he was a taxi-cab. Is not that a shocking state of things? A poor man may have to find £30, £40 or £50 to cover the court dues. He considers the offer and goes home to consult. Then he comes back to the solicitor and accepts the offer with great reluctance. He is not getting his due. The only people who are geting any money out of the case are the solicitors on both sides. Of course this does not apply to the very poor man or to the very rich corporation, one does not pay because he cannot and so he gets on the Poor Roll and the other can. But the vast mass of the people in Scotland, people of comparatively small means, are shut off from the courts by the enormous charges that are imposed.
There should not be any Court dues at all. They are a survival of the old days when the people went to the King for justice and gave gifts to his courtiers to get to him. The court should be open and free to all citizens without charge. The Geddes Committee, with their commercial mind, treated the courts of justice as they would a bacon factory that ought to be made to pay. They said: "You are costing too much; 1784 you must find another £9,000." I was sad when I heard what they had done because I was the means of abolishing printing in the Court of Session. The cost of that printing was very high. It was fixed about the time of Caxton. I happened to see the stencil process in a company with which I was associated, and I thought that that would be good enough for the Court of Session, and the judges approved of its use. The cost of printing had gone up during the War to a monumental figure. It cost more in an appeal than the lawyer's bill. I pointed out the absurdity of carrying on the Court of Session and having litigation for the benefit of printers. I managed to get the stencil process adopted and the cost of printing was cut by half. These fees imposed by the Geddes Committee are preposterous, and shut the doors of justice against a vast number of our citizens in Scotland. I hope that eventually the Government and the country will realise that the dues are an anachronism. Counsels' fees, too, are heavy. In the old Roman days advocates did not accept fees. It was considered to be an honoured position, and that is why counsels' fees at the present time are not legally recoverable, so they are supposed to be paid in advance. I think the theory is that we are not to take up the sordid earning of money, but to take up the task of advocacy in order to help the administration of justice.
A point was very properly made by the last speaker about the need for throwing open the gates of the Court of Session to the poorest among the people. If you can do so, do it by all means, but if a man becomes an advocate, it should be remembered that he engages in one of the dangerous trades, because advocacy is like acting, singing, or any of the other professions in which personality tells. A man may be a most brilliant scholar and have all the learning in the world, but if he has not got the personality, he is not likely to succeed as a pleader. There is no more melancholy figure than the fellow walking up and down Parliament House without a brief or the hope of a brief. Many of them disappear. Some of them are scholarly men. Some of them make fine county court judges, because very often a judge is to some extent a good judge not altogether because of his knowledge of 1785 the law, but because he has the judicial temperament. It is a thing that a man is born with, and he will make a good judge, whereas no amount of experience of pleading can take the place of a natural judicial temperament.
The main cause of the expense of entering the profession is, of course, the Widows Fund. Whenever a man enters the Faculty of Advocates he has to pay a very large sum into this fund. I know, because I have done it myself. I was middle-aged when I joined, and I paid about double what most people pay. The idea is that if an advocate leaves a widows behind him, she shall have a fairly substantial sum of money as a pension. From £80 to £120 is about the maximum pension. I was told many years ago what was the origin of the fund. I think it was in the 'thirties that the fund was established, and the reason was something like this: The advocates are a very friendly band of brothers. They are really very friendly with each other, and now and again one of them who had been taken away might leave a widow behind him, and she was very apt, if she had not been left a reasonable provision, to come up to the Parliament House and walk up and down among his old friends, more or less in a state of destitution. It became a case of more or less constantly sending the hat round for a destitute brother-advocate's widow—the importunate widow. It was a great trial and hardship, and it, was very difficult and humiliating, so they thought, "We ought to do something to put an end to this," and they started this Widows Fund. Of course, it is hard lines for a man to have to put down a substantial sum of money when he feels that possibly he may never he able to afford to marry; but that is what was done. I am not advocating the taking away of the Widows Fund. I think it is a wise provision, because, as I say, this is a very precarious profession, and it would be very unwise to abolish the fund. It is a sound provision, very much like a survival of the old, not trade unions, but friendly-societies of mediaeval times.
I was very pleased to hear the Lord Advocate stand up for the jury system, and I was the opposite of pleased when I hoard a learned junior holding that it should be abolished. I think that to abolish trial by jury would be a great calamity, and to nobody more than to 1786 the courts of justice. In my view, it is the jury trial that keeps the judges in touch with the people and with the realities of everyday life. Abolish the juries, and the judges would become more or less a class apart, like monks or Druids, away from the rest of mankind. A judge leads a very secluded life, especially in Edinburgh. He cannot mix with ordinary human beings, and the result is that his training and mentality become purely legal; and on many questions juries can do things that Judges cannot. The most celebrated case that I recollect is a case where 15 railwaymen testified that a locomotive had blown its whistle at a level crossing, and two men, totally unconnected with the railways, said that it had not blown its whistle. The jurymen, ordinary human beings, with a knowledge of human weaknesses, said to themselves, "If I had been a railwayman, I too would have spoken up for the company." They believed the two, therefore, and disbelieved the 15, and gave their verdict against the driver of the locomotive. No Judge would have thought of doing such a thing. Forgetting that he held a life appointment and had full security, he would never have thought that any man would so testify, but the jury, with sound horse sense, gave that decision. That is exactly where any 12 men are so useful. You occasionally get a sentimental decision, but in such a case the Appeal Court can usually set it aside. If you do away with juries, especially with regard to questions of damage, you will do a great wrong. We had a brief experience at the beginning of the War of doing without jury trials, and the result was that we got very small awards given. The general belief in the profession was that you got about a third awarded, as compared with what would have been the case with a jury.
With regard to the sheriff-principal, I do not think he should be abolished. There is no more valuable man in the Courts of Justice than the sheriff-principal. He is a man who does not get a large salary, he practises himself in the courts, and the only cases that he does not touch are appeals from his own diocese. The advantage of having him to consider the judgment of the sheriff-substitute is this, that if the sheriff below has made a grievous mistake, and the sum involved is not large, the parties 1787 cannot go to the Appeal Court, because of the expense involved, but they can go to the sheriff-principal and get a reversal for a few pounds. It is not the number of cases that go to the sheriff-principal, but it is the number of cases where some miscarriage of justice might take place if it were not for the existence of the sheriff-principal. He is there as a kind of safety valve, and the fact that he is busy practising the law and in the Court of Session keeps him up to date, so that you have some very brilliant men as sheriff-principal.
I finish on the note with which I began, namely, that I do not think there is a great deal in this Bill. It will not affect the courts or the vitality of the courts to any serious extent at all. The real root cause why the courts are idle and there is very little doing is simply the financial barrier that is put up in the face of litigants by these court dues. When I was a youthful practitioner the courts were busy all the time, on the old court dues. It was not that the people were more litigious than they are now, but that they knew they had a chance and were not going to be bled by the Treasury in advance. Take away this octopus of the Treasury draining the pockets of litigants, and the Court of Session will become the great and busy institution that it has been in the past, a terror to evildoers and a protection to them that do well in Scotland, as it has been for the last 400 years.
§ 8.12 p.m.
§ Mr. GUY
I welcome this Bill, although I may have a few words of criticism to say about it. I think the Bill will undoubtedly make a start in a most valuable and much needed reform in the law of Scotland. I take a particular interest in this Bill for two reasons—first of all, because the Court of Session, about which the Bill is mainly concerned, is in my constituency. It has been so situated, as the Lord Advocate pointed out, for the last 400 years, and despite what Glasgow lawyers say from time to time, I think it is likely to remain there for even longer than I represent the constituency. My second reason for having such a particular interest in the Bill is that I am satisfied that there is a very definite demand throughout Scotland, as reflected by public opinion, for an overhaul of the machinery of the administration of 1788 justice. It is interesting to go back to the Report of the Royal Commission, made in January, 1927, and to compare the terms of reference with what this Bill sets out to do. It is especially significant that the terms of remit to the Commission were to inquire and make recommendations to secure the more speedy, economical and satisfactory dispatch of business in the Court of Session and before the sheriff-principal.
I think that on an examination of the Bill it will be clear that that purpose has been very largely served. There can be no blinking our eyes to the fact that in the minds of the general public in Scotland, as in England, the processes of the law and the administration of justice are too slow, too cumbersome, and too expensive, and also too uncertain having regard to the numerous appeals that may be taken from the original decision. In my opinion this Bill goes a long way to remedy those defects, but it does not go far enough, and if there were any idea that this Bill was the last word in the reform of legal procedure in Scotland, I should be frankly disappointed. I was specially glad to hear the Lord Advocate say that this was not the last word but was the first step, and that he hoped it would lead the way to even more important reforms. As regards one reform which is not in the Bill, I would like to endorse what has been said by previous speakers on the importance of reducing, if not taking away, those court dues which are not only such a deterrent to litigation but amount sometimes to a denial of justice to a prospective litigant.
While I say that I welcome the Bill, I should like also to make one or two brief criticisms of it. It is impossible to deal satisfactorily with the Bill in detail on Second Reading, and I shall reserve minor points of criticism for the Committee stage, but there are one or two general criticisms which can be made now. One feature about the Bill which I do not care for very much is the power given to the Court of Session to regulate the procedure and even to alter the law as applicable to the Court of Session. It is true that the Royal Commission recommended that the power of the Court of Session to regulate its own procedure should be wholly restored, but there was the very important qualification, that any alteration should be submitted to Parliament for its approval. That qualifica- 1789 tiou is not in the Bill, and my objection to the power given to the Court of Session would be very largely mitigated if that qualification were inserted. I cannot help thinking that those who drafted this Bill thought, after they had dealt with a number of the points referred to the Royal Commission in the terms of the original remit, came to the conclusion that it, would take too much time to think out all the details of procedure, and that, in view of the six years which had already elapsed since the report of the commission, the other details should be left to the Court of Session. In my opinion this is an instance in which Parliament is not doing its full duty.
The main purpose of the Bill is to amend the law of Scotland relating to the Court of Session and the procedure therein, and if Parliament takes upon itself that task it should make a better job of it, and complete the details within the framework of the Bill, and more definite directions should be given as regards procedure in the courts. There is a particular reason for this because an Act of Sederunt, although very carefully drawn by the judges of the Court of Session, does not get anything like the publicity that is given to an Act of Parliament, and lawyers and members of the public are entitled to know what changes, if any, are to be made in those rules of procedure. That is why I think it would be far better to cover the whole ground of procedure within the framework of the Bill. I would add that in my opinion a Schedule should be added to the Bill embodying the forms of procedure. The Lord Advocate said it was better that these forms of procedure should be flexible, and not stereotyped in a Bill, but with all respect I think it is advisable to have a certain amount of uniformity and finality and publicity, and that it would be better to have those forms incorporated in a schedule to the Bill. If a change were required in five or 10 years' time we could have another Bill. After all, the Court of Session does not bother Parliament very much. The last major Act dealing with it was passed in 1868.
Next I will say a word about the Rules Council. I think the setting up of such a council is a most excellent idea. It introduces a democratic note into the 1790 administration of the Court of Session and the business therein. But I am not altogether satisfied with the wording of the Bill as regards the duty of the Rules Council. The recommendation of the Royal Commission was that the council was to consist of so many judges, so many advocates, and so many solicitors, and that this Rules Council was actually to prepare any Act of Sederunt. As I read the Bill, the intention of the Government is that the Rules Council shall only make recommendations to the judges, which may or may not be accepted by tile judges, and that the responsibility for making Acts of Sederunt is to rest on the judges alone. I think it would be better to go back to the recommendation of the Commission.
Turning to Part III of the Bill, which deals with the appointment of officers in the High Court of Justiciary and the Court of Session, I wish to enter a mild protest against the power which at present is vested in the Lord President of appointing the principal officers being taken out of his cars and put into the hands of the Secretary of State for Scotland. With all respect to the Secretary of State, I do not think he has the suitable qualifications or the knowledge of the needs of the Court of Session to be able to make a proper appointment. This is a question of efficiency, and I think it will be better for the efficiency of the court that the Lord President, who is in charge of the court, and who is responsible for the running of the court, should have the power not merely to make recommendations but to make the appointments hi the Court of Session. In regard to Part IV of the Bill, which deals with the sheriff-principal, I am in entire agreement with hon. Members who have dealt with the point as regards the maintenance of the sheriff-principal. I think that sheriffs-principal perform a very valuable work, both judicially and administratively, and it would be most unfortunate if this office were terminated. I should like to see some proposal incorporated in the Bill to make more valuable use of them as appeal judges.
At present the sheriff-principal acts as a one-man appeal judge, reviewing the decisions of the sherifs-substitute. There are very few people who have a good word to say for this form of appeal, 1791 other than on the ground of expense. No doubt it has provided an economical and local appeal from the sheriff-substitute. In my opinion, some scheme might be worked out, as suggested in one of the minority reports of the Commission, on the lines of an appeal tribunal consisting of sheriffs-principal. There might be three or four for Scotland, and three sheriffs-principal would constitute an appeal tribunal and would be responsible for their area in Scotland—for the North or for the South as the case might be. That would provide a form of appeal tribunal which would be comparatively inexpensive, as compared with appeals to the Court of Session, and would give still further confidence to the appellant to take his appeal from the sheriff-substitute.
In conclusion, I would repeat that I am strongly in favour of this Bill. I hope that the Lord Advocate and the Solicitor-General will deal, in their usual friendly way, with suggestions that we put forward in the Committee stage. I hope that I have not given the impression, by criticising the Bill, that I am against it in any way, in principle or in theory. As a matter of fact, I pressed for the introduction of the Bill. I am very glad that the Bill has been introduced and will get the Second Reading to-day, and I hope that it will have a comparatively rapid and agreeable passage through Committee.
§ 8.27 p.m.
§ Mr. JAMIESON
I congratulate the Government on having introduced this Bill, although we have had to wait five years from the Report of the Royal Commission. The hon. Member for East Stirlingshire (Mr. Johnston) referred to some statements in the Report of the Commission to the effect that the volume of litigation in Scotland had not kept pace with the growth of the population. That may be due to various reasons; no doubt litigation is no longer one of the recreations of the Scottish laird, as it used to be. The natural inference to be drawn from the fact, if it be a fact, is that the courts of Scotland are not performing functions which they ought to perform. The reason that our courts, and especially the Court of Session, have not been regularly made use of by 1792 litigants for the settlement of disputes and for the administration of justice is that the forms of procedure have for so long required reform. When a defender, as we call him, gets a paper that begins with His Majesty sending greetings to Messengers-at-Arms and goes on to describe the people as "lovites" the man who is being sued, and who gets the writ as a summons, begins to wonder whether a practical joke is being played on him. It is only when he reads through a considerable amount of typewritten matter that he finds that he is beng sued for £500 or £1,000, or whatever it may be. The hon. Member for East Stirlingshire made a reference to those forms. No doubt they are of literary and historical interest, but as a piece of practical modern writing they are archaic.
Not only are our forms of appeal out of date, but great delay takes place through want of a proper distribution of the business of the court. I welcome very much the provisions in this Bill which will allow the work of the judges to be distributed from a central office. I believe that a much greater use of the Court will result. Like the hon. and learned Member for Argyll (Mr. Macquisten) I have seen this from both sides, and I believe that a more important point with many litigants is the delay which is going to ensue before they get their judgment, rather than the cost that would have to be met in obtaining it. I welcome very much the provision for the redistribution of the judges' work and I also welcome the provision under which litigants may, after a summary trial, take the final decision of one judge. The hon. Member for East Stirlingshire said that it was derogatory to the dignity of the judge, but I think it would be rather an honour to him and a mark of appreciation of his ability that litigants were willing to accept his decision as final.
I hope that this provision will very largely be made use of. No doubt, in some respects it is a form of arbitration, but it lacks the very great defect in ordinary arbitrations. Ordinary arbitrations are bad for the law. They may afford a very simple and perhaps economical method by which two parties to a dispute get a settlement, and the dispute may be settled in the most admir- 1793 able manner. If it raises a question of law, that may be settled by a solicitor, a barrister or an advocate, and the parties may get just as good a decision as if they went to a court. But that decision decides that case and that case only. The law is not built up by the decisions in those cases. Under the present procedure, where the judgment of a single judge is taken where questions of law are involved, the judgments will find, their way into the reports, and while they will not have the same weight as judgments of the Appeal Court, or Inner House, as we call it, nevertheless they will be followed, and, as occasion arises, perhaps in larger disputes where an appeal has been taken, they will be reviewed, So that while it is apparently cheap for parties to settle their disputes by arbitration, the same dispute has to be settled over and over again, and in the long run it is no saving to the community. I believe that the form of process which is being introduced will be such a saving.
I would like to refer to the provision for the procedure rules. I am all in favour of those rules not being embodied in the Bill—neither the rules themselves nor the forms of writ and pleading. One of the things from which we are suffering just now is a want of elasticity in our pleadings. We have pleadings enacted in Acts of Parliament going back to 1868, and I think that, there should be power to adapt the process to the requirements of the times. When, however, I come to see how that is to be done, I have considerable misgivings. The Bill makes it merely permissive for the Lord President of the Court of Session to appoint a Rules Council, and, if that Rules Council is appointed, it is merely to act in an advisory capacity. But the report of Lord Clyde's Commission recommended something quite different, namely, that there should be a Rules Council who should initiate and frame the Rules, which should then be submitted to the Court for confirmation as an Act of Sederunt, and I hope that that will be reverted to. Moreover, why should the position of the Rules Council be left to the Lord President? Why should not the Faculty of Advocates, who are to have representatives, appoint their own representatives; and why should not the solicitors do so also? Last week we passed through this House a Bill setting up a General Council for solicitors in Scotland. If that Bill 1794 passes, as I have no doubt it will, in another place, and receives the Royal Assent, that General Council will be set up, and I see no reason why the solicitors should not themselves appoint their own representatives to the Rules Council.
There is another point to which I should like shortly to refer. The appointment of clerks is to be made by the Secretary of State, and that appointment is to include judges' clerks. Previously these have been appointed or selected by the judges themselves; they are personal clerks; and I think the judges should still have the right of appointing them. But there is a much worse menace, though it is not in the Bill itself. There is to be a reduction in number, and, if one looks at Clause 24 of the Bill, one finds that all the clerks, including the clerks to the judges, are to be under the general supervision of the Principal Clerk of Session, and are to perform such duties in relation to the business of the Court as he may require. That includes the judges' clerks. But the hidden menace is to be found in the Report of the Commission, where it is recommended that one clerk might be sufficient for two judges; so we find that judges' clerks are now to be put in the unenviable position of serving three masters, to wit, two judges and the principal Clerk of Session. I think that that, would be an impossible position. The judges' clerks are, as I have said, to a large extent personal clerks. They have to be available to the judge at any time of the day, and, indeed, practically at any time of the night, because they have to go down to his house and take down the judgments which he dictates. What is to be the position of a judges' clerk if both judges say they want him on the same night? It would hold up decisions. I hope that we may have some assurance that the Government do not intend to give effect to the recommendation of the Commission in that respect, and that that will be made clear in the Bill.
On the question of the amalgamation of sheriffdoms, there are at present 15 different sheriffdoms in Scotland. The sheriffs, with the exception of the Sheriff of Midlothian and Peebles and the Sheriff of Lanarkshire, who are prohibited from taking private practice, are entitled to practise at the Bar. It was pointed out in the Report of the Commission that not 1795 only is their work judicial, but it is also administrative and executive, and the Commission expressed grave doubts as to the appropriateness of any amalgamation. They did so for this reason, that these sheriffs are at present part-time officials, and if you amalgamate sheriffdoms and load them with extra work, you run the danger of turning them into full-time officials. If you turn them into full-time officials, you are not going to get the same class of men to take on the work. In the first place, it would not pay them to take on whole-time work of that sort. The men who hold these positions are men who have been successful at the Bar, and it is because of their position that they are given the appointments. Moreover, not only would the remuneration for a whole-time appointment not induce them to take these positions, but a sheriff is debarred from advising or taking any case in any matter arising out of his own sheriffdom. If, therefore, sheriffdoms are going to be amalgamated, that would increase the amount of work at the Bar which would not be open to sheriffs. I hope that the Government are not going to press such a proposal. Any question of amalgamation of sheriffdoms should, I think, be dealt with, not by an Order made by the Secretary of State for Scotland, which would lie on the Table of this House, but by a Bill brought in for the express purpose.
In conclusion, I should like to say a word about what was said by the hon. and gallant Member for Banff (Sir M. Wood) with regard to judges. He suggested that there might be economy, and, as I understood him, he said that three judges were sufficient for a Court of Appeal in England. That may be, but the three judges who sit in the Court of Appeal in England do not require to go on circuit, as do the Judges in the Inner House of the Court of Session. The commission went very carefully into the question of whether or not there should be any reduction in the number of judges, and their report was that any reduction would render the work of the court inefficient.
§ 8.44 p.m.
§ The SOLICITOR-GENERAL for SCOTLAND
The course of the Debate has shown that in every quarter of the House this Bill is welcomed. It 1796 is recognised by all hon. Members, that the purpose of the Bill is to make litigation a less costly and a less slow and difficult affair for those who become involved in it. I do not think that any hon. Member has expressed dissent, unless it be the hon. Member for Stirlingshire (Mr. Johnston), and, if I interpreted his intervention aright, I gather that he is content that things should remain as they are, and is not in favour of any alteration of the existing law and practice. If that is his attitude I think he is unique. I know of no one else who does not desire to see some considerable reform of the procedure of our courts. I do not think it is necessary for me to deal with a great number of the points which have been put forward in the course of the Debate. My right hon. Friend told the House that the Government would welcome any suggestions that may be put forward in Committee and would give them their fair and most anxious consideration with a view to improving the Bill. The main points which have been put forward are, indeed, Committee points.
There are only some three matters to which I should like to refer. The hon. Gentleman the Member for Banff (Sir M. McKenzie Wood) referred to the number of judges. He told us that he had entered into a comparison of the work done by the members of the judicial bench in Scotland and that done by the Judges of the High Court of England. If he entered into any such comparison, I can tell him straight away that his basis of comparison is radically erroneous. He cannot get a basis of comparison on that footing at all, because a large proportion of the work that is done by judges in Scotland is work that is done by subordinate officials of the English courts. In the second place, he assumed that there were at all times only two divisions sitting as courts of appeal. Again, that is radically erroneous. For a portion of the year there is a Land Valuation Appeal Court sitting and there is power already in existence, which is confirmed by this Bill, to appoint a third division. I have frequently known in practice a third division of the Court of Session sitting. Moreover, there is one thing that requires to be taken into account. Litigants have always felt that the re- 1797 view of their case which might result in a decision by the Court of Appeal different from the decision of the judge of first instance, it might be by a majority of one in a court of three, was very unsatisfactory. That left the litigant in the unfortunate position that, out of four judges in all who had decided, two had decided in his favour and only one against. I know that many people are of the view that that is unsatisfactory.
§ Sir M. McKENZIE WOOD
If you have four judges, you have the same difficulties, because then you have three to two.
§ The SOLICITOR - GENERAL for SCOTLAND
You have a majority in your favour, which shows that there has not been an equal division among the judges who have considered the case. Moreover, this matter of the number of judges has been carefully considered by the Royal Commission. Therefore, the Government do not propose to alter the statutory number of judges. That statutory number has existed, I think, for century or more, since a time when the population of Scotland was very much smaller than it is to-day and the demands on judicial time were certainly very much less than now.
Other hon. Members have taken the point that more should appear in the Schedules to the Bill and that less should be left to Acts of Sederunt. I think there is a strong objection to that. It means stereotyping a particular form, and the very thing that we have suffered from is just that stereotyping which took place in 1868, which we have not been able to alter until this present Bill passes into law. It is said, however, that there is a general objection to Parliament leaving to another body what is substantially legislation, and the objection that is so often taken to the legislative powers of the Government Departments was instanced by an hon. Member as analogous to what we have here. I would appeal to the hon. Member to consider whether this is not really something radically different from that. In the first place, the judges are not a Government Department and are not susceptible to any influence from the Government or from any executive quarter. The kind of regulations that are complained of are regulations by which people obtain certain rights, 1798 it may be to a pension or to some other benefit which the State confers. But what is left here to Acts of Sederunt is merely the means of enforcing rights in a court of law. There is nothing more common in any system of jurisprudence than that the Supreme Court of any country should have itself the power of regulating its own procedure. That power has existed in many countries long before this question of Departmental legislation ever arose, and I am not aware that it has even given rise to the kind of criticism which Departmental legislation has recently given rise to in this country. I suggest, without closing the door to my hon. Friend, that he should consider these aspects of the matter and that he will not he disposed to insist on the procedure of our courts being again subjected to that rigidity which comes of embodying its forms in an Act of Parliament.
The only other matter with which I would deal is the question of summary procedure. The criticism has been made that it is somehow lowering to the dignity of one of His Majesty's Judges to be selected by the parties to a dispute to adjudicate upon it. I am perfectly unable to understand that argument. What I know is that this particular Clause, although the drafting of it has been subjected to criticism, has been welcomed by every legal body and by every public body that has yet considered it. The whole object is to enable the parties, when both parties to the dispute agree, to get a rapid, informal and final decision. What is it which hinders the man with moderate means too often from asserting his rights at court? It is the slow formality of the procedure before the judge of first instance. There is the risk of appeal to the Court of Appeal, and the final risk of an appeal lying still further ahead to the House of Lords. What is the position? Are His Majesty's subjects to be entitled to go to the judge of first instance and say: "Here is a dispute; I am willing to take your judgment as final if you will settle it for me"? Surely, there can be but one answer to those who believe that the quick and cheap settling of real disputes between honest people is one of the essentials of a proper system of justice.
§ 8.57 p.m.
§ Mr. BUCHANAN
One cannot gainsay the force of the argument of the Solicitor- 1799 General for Scotland that there is need for rapid and cheap justice. One must always bear in mind, however, that great questions are often settled by arbitration of the kind suggested. One has to remember that it is not always merely a question of settling a dispute between two litigants. When you settle a dispute between two litigants you are making case law for the future. Therefore, it is not a question for two people alone. If it were so, I should be at one with the point of view of the hon. and learned Member. When dealing with case law and with things which may affect the future of other citizens, we have no right to hand the position over to arbitrators. A particular case may well be founded upon a decision given by a learned judge. While I am not against arbitration in this matter, I believe that a great amount of the law has been built up without any real foundation of fact, or of being properly worked out. I find it so in the case of unemployment insurance. I fear that with this arbitration very often decisions may become binding upon other people, whereas if the case were properly argued there might not be such a finding at all. This proposal, as far as I can see, will cover matters relating to workmen's compensation.
§ The LORD ADVOCATE
I would remind the hon. Member that, as far as workmen's compensation is concerned, the procedure is statutory. We are not dealing with that matter.
§ Mr. BUCHANAN
I am glad to be corrected, because I believe the hon. Member for Govan (Mr. Maclean) stated that the only things outside the question of arbitration were those affecting the status, and I concluded that workmen's compensation was not in the category of status and was therefore included among the cases which can go to arbitration. The Bill ought to have dealt with the whole question of the judiciary of Scotland in a much more thorough fashion. The time has come when we ought to fix an age limit for the judges. Service in the Court of Session is limited to the age of 65 and the Secretary of State has power to extend the time limit to 70 years of age in exceptional cases, but I cannot understand why judges should be immune from such a provision. We ought to have an age limit applied 1800 to judges in the same way as it applies to other servants of the Crown. There are servants of the Crown whose duties may be as important as those of judges, and I cannot understand why an age limit should not now be imposed upon judges.
The question of the period of the shutting down of the Court of Session ought to be reviewed in the light of new circumstances. Even if it can be established that the time off is necessary and that the judges when not actually sitting have other judicial duties to perform, yet to have the whole Court of Session shut down is not good business in the light of modern developments. Judges ought to have time off in rotation, and the Court of Session, as far as civil actions and appeal cases are concerned, should not be shut down for such a long period. The Bill ought to deal with the question of the time during which the Court of Session is shut down. I do not intend to oppose the Second Reading of the Bill, but I regret that it falls short of reviewing the general position of the magistracy of Scotland. I submit to the Lord Advocate, and to the Solicitor-General for Scotland that the time has arrived in Scotland when the whole lay magistracy should be reviewed. These lay magistrates have tremendous powers. They can sentence people to fairly lengthy periods of imprisonment. In certain cases they can inflict sentences of six months imprisonment. Generally, their powers are limited to the infliction of 60 days or two months' imprisonment. The time has arrived when a reform should be instituted in regard to the magistracy. In Glasgow we have the lay magistrates and one legally trained man, known as the stipendiary, who may be looked upon as a subordinate form of the sheriff. The other day this legally trained man, whom one regards as being removed from prejudice, tried a certain case, and found the person not guilty, after a, proper trial. The week before, the lay magistrates tried less prominent men for an offence perhaps not approaching in seriousness the other offence, and yet these smaller men were fined. Why was that?
The whole system of the lay magistracy is wrong. It means that very often men are being tried by their political opponents. A position has now been reached, particularly in the city of Glasgow, which is crying out for reform. What is the position in the Glasgow 1801 police courts? The Procurator Fiscal is the superintendent of police. I say sincerely and seriously to the Secretary of State for Scotland that in regard to the magistracy a terrible and shocking thing is crying out for reform. The poorer a person is the more need has he for a proper trial; the more defenceless he is, the worse he is, the more necessary is it that prejudice should not be created. We often find poor people charged with crime. I do not blame the police, the nature of their duties bring them into these cases, but when we have the superintendent of police acting as the Procurator Fiscal and his own people are the chief witnesses, the position is very unsatisfactory.
I would sooner go to the Court of Session or to the High Court than I would go to the lay magistrates' court, which is tantamount to a military tribunal. You go there and you find the Procurator dressed with his Sam Browne belt, with the buttons polished on his uniform, while the court is packed full of policemen. The whole atmosphere is military. Go to any other court, and the atmosphere is quite different. The prosecutions are carried on by civil officials, dressed as civilians, and the atmosphere is civilian. I do not indict any single individual, but there has grown up a system which is higgledy-piggledy in the lower courts, and ought to be remedied. Go to the Court of Session and see what happens. I have been there frequently, and may I say that the judges have never limited me in any way? They give their decisions co-related to other decisions which have been given in the House of Lords and elsewhere. In the Glasgow courts you may argue before the lay magistrates, you may produce your evidence, you may have learned counsel, you may quote the decision's of learned judges, but the Procurator is the prosecutor, and only too often the thing is unsatisfactory.
The whole proceedings in these lower courts is calling out for improvement. I do not reject the little reform that is proposed in this Bill. I do not forget that civil justice is important, but to me criminal justice is just as important. No lawyer would allow civil cases to be tried by these lower courts if he could help it. No man of standing would prefer to 1802 put his clients in these courts. He would prefer to insist on the other courts. The indictment that I bring against the Bill is the fact that it has not tackled the whole question of the legal system and the judiciary in Scotland from top to bottom. The Bill deals with a few minor reforms. The Royal Commission investigated many problems, but it did not touch the problem of the lay courts. If the Secretary of State cannot bring in a Bill the time is at any rate overdue for some form of inquiry into these courts and into the system of the local judiciary. It is a horrible position, when you find a trained mart letting one man off as being not guilty, whereas other men are fined £1 by the lay magistrates for another offence in which the verdict ought to have been not guilty. Surely that is a thing that cannot be defended. I hope the right hon. Gentleman will go into the whole question of the lay magistracy in Scotland, because with my knowledge of the city of Glasgow, I know that it is rapidly becoming a disgrace, and is bringing the whole legal system into contempt. The Secretary of State for Scotland must know that there could be nothing worse than to hold the courts in contempt. I hope that for the sake of all concerned in the courts and for the sake of the legal profession he will take steps to rectify the position.
§ 9.14 p.m.
§ Mr. DUNCAN GRAHAM
I had not intended to take any part in the discussion, but the charge that has been made by the hon. Member for Gorbals (Mr. Buchanan) necessitates the other side being put, and I should like to put it before the Solicitor-General replies. I hold no brief for the side of the lawyers or for the ordinary baillies or justices of the peace in the Scottish courts, but I do say that there is a great deal to be said for the other side.
§ Mr. GRAHAM
There is. There can be no doubt about that. Those who occupy the position in the ordinary courts in Scotland as justices of the peace or baillies, are generally men or women who have had a long period of municipal service, and although they may not bring legal or technical knowledge to the sub- 1803 ject they bring to it ordinary common sense. I should be very sorry if anything was done in this or any other Bill which would set up a class system of legal treatment for poor people who are brought before the courts. Our courts on the whole work admirably. I know the case which the hon. Member for Gorbals has in mind. There is another side to that matter. Perhaps the legal gentleman was more in the wrong than the judges of the case who were not legal gentlemen. It is a, question of opinion. In my opinion he was wrong—
§ Mr. GRAHAM
I may be wrong. I never take up the position of being absolutely correct on anything, and I do not think anyone else can be absolutely correct. There is a great deal to be said on both sides. I agree with what has been said with regard to the purity of our sheriffs and those who dispense justice in Scotland, but I want my hon. Friend to bear in mind that these other people who exercise this function are men and women—
§ Mr. BUCHANAN
Will the hon. Member kindly face this point. The indictment I have made is that in these courts the procurator fiscal is the police superintendent. The police are, generally speaking, involved in the charge. I say that the prosecution in such cases should be undertaken by laymen who are not concerned with the criminal charge at all.
§ Mr. GRAHAM
It may be true that in the main the evidence submitted in the sheriff court in criminal cases is by the police. It may be true that the procurator-fiscal is the chief constable of the borough, but after all he is not the judge, and the judge has always the right, even if he is a justice of the peace, to refuse to accept his argument. On the whole I think the hon. Member has little reason to complain, and I hope the Government will not be in any way influenced by the arguments he has advanced.