§ Order for Second Reading read.
§ 4.43 p.m.
§ The Solicitor-General for Scotland (Mr. James Reid)
I beg to move, "That the Bill be now read a Second time."
Almost exactly a year ago this Bill was introduced for the purpose of enabling all those interested to consider its terms, with a view to its reintroduction during the present Session. In view of the war, however, it was not thought desirable, to begin with, to reintroduce the Bill, because, while it performs, I think, some very useful functions and makes some admirable reforms, it can hardly be represented as a Measure of major importance. Accordingly, it was first proposed that the Bill should remain in 1196 abeyance for some time, but representations were made by hon. Gentleman and right hon. Gentlemen on the benches opposite in regard to at least one Clause of the Bill, and, as those representations appeared to us to have weight, it was decided to reintroduce the Bill. We made certain inquiries as to the possibility of controversy and we discovered that one Clause in the original Bill seemed to be, to some extent at least, controversial. We therefore dropped that Clause, and it does not appear in the Bill. We added one Clause—Clause 9—which was not in the Bill a year ago, but I think the House will agree that it cannot very well be regarded as controversial.
I feel sure that the House will not expect a full explanation of the terms of each of the Clauses, because they all deal with separate points, but I think it only right to indicate the scope of these Clauses, and I shall, of course, be happy to answer to the best of my ability, any questions on any Clause with which I have omitted to deal. Instead of going into everything minutely, I think it will be convenient if I deal with those Clauses which appear to require attention. The first Clause arises in this way. Under the law until a few years ago, when a court ordered any person to return an article of property to the other litigant, or to do any particular act which he had left undone, and the person so ordered refused to do that or, indeed, was unable to do it, the aggrieved party was able to have the recalcitrant person put into prison without further ado. A number of cases running into hundreds occurred in which that took place. The great bulk of those cases arose through failure of those who had bought under the hire-purchase system to return the article when they fell into arrears with their instalments. The Hire Purchase Act of 1932 cleared up the greater part of the question, because that Act dealt with the great majority of the cases which had occurred in previous years. But there is a certain residue, partly of hire-purchase cases not covered by the 1932 Act, and partly of other miscellaneous cases, which we think ought to be abolished also. Broadly speaking, the Clause extends the system, of which Parliament approved in principle in 1932, to the remaining classes of cases. I do not think I need say more about that Clause.
1197 The second Clause deals with an entirely different question. As the House is aware, the practice of adopting children has spread very much in recent years and has, of course, been given statutory sanction, but at present if the person who adopts a child is, let us say, killed in a motor-car accident, the adopted child has no right such as an ordinary child has to get damages by reason of his loss. We think it right that in this matter adopted children, and for that matter illegitimate children also, should have the same right of recourse to the court for damages as the ordinary legitimate child has to-day. I need not say more than a few words on Clause 3. Broadly speaking, in a large number of cases two persons are at fault. If, let us say, two motor cars come into collision and either a pedestrian or a passenger in one of the cars is killed, both drivers may be at fault. Under the law at present it is possible sometimes by roundabout methods to get both to contribute equally to the amount of damages, but there is no machinery for providing that if the fault of one is gross and the fault of the other trifling, there should be not a "fifty-fifty" sharing of the damages but some other proportion; and we propose to make it possible, if the Court holds that the blame is not to be equally shared, that the damages should not be equally shared either.
In Clause 4 we come back to hire-purchase again. Hon. Members from Scotland will know that in the ordinary course if you want to bring an action against anybody in the sheriff court you have to go to the court where the man is to be found and not sue him in your own court, in some different part of the country. But it has been possible under our law for two people to agree, when they make a contract, that the debtor shall be liable to be sued, not in his court but in the creditor's court, in the place where the creditor lives. It has been found in the case of poor people that that in effect deprives them of any judicial protection, because if a man lives in Inverness and his creditor lives, let us say, in Glasgow—I do not suggest that Glasgow is any different to any other place; I merely take it as an example—then under the contract, the action against the man in Inverness is brought in Glasgow, and if the man in Inverness has not the means to instruct a solicitor in Glasgow or to go there himself, his case is accordingly never heard. 1198 Again, the 1932 Hire Purchase Act paved the way, and with regard to the classes of cases there covered, this arrangement was abolished, but there remain other classes of hire-purchase cases where this state of affairs exists still, and we think that the whole thing should be swept away as far as hire-purchase is concerned.
Then comes Clause 5, with regard to which, in particular, the representations to which I referred were made. If a husband dies intestate his widow is entitled, under the existing law, to the first £500 of his estate before the ordinary law regarding the division of the estate comes into operation. But that only applies if the husband was, in the full sense of the term, intestate. If he left any provisions the Act is ousted and it has been found, particularly with regard to the £100 friendly societies provision that a wife might get the £100 under the friendly societies rules and be very much worse off than if she had not had it, because the effect of getting that is to deprive her of the statutory £500. We therefore propose that in such a case she should not be worse off, but should get an additional £400 under the Statute to make up the £500. We do not propose that she should get both the statutory sum and the provision, but that the provision should, so to speak, be made up to the £500 before the rest of the law comes into operation. I think that that explanation fully meets the position of those who made representations on this matter. With regard to the remaining Clauses, I think I can be very brief. Clause 6 saves some expense in cases where property has come into the hands of the Crown by reason of failure to discover heirs, and absence of a will—
§ Mr. Leonard (Glasgow, St. Rollox)
There is one point I should like to raise with regard to friendly societies. Would the hon. and learned Gentleman's explanation also include co-operative societies?
§ The Solicitor-General for Scotland
It includes any form of gift of a testamentary character. Clause 6 merely saves unnecessary legal expense in cases where the Crown has taken property, under its rights, where there is nobody else to take it. Clause 7 provides for statutory sanction to certain Conventions which confer jurisdiction on Scottish courts and which the Scottish courts do not recognise with- 1199 out such sanction. Clause 8 enables a person who is charged with a serious offence to plead guilty to a less serious offence, if he is willing to admit something rather different from that with which he is charged, without the alternative being separately charged.
I should say a few words about Clause 9, because that is a new Clause. At the present moment many people commit minor offences in districts other than those in which they live. A motor driver is a very common example. Where the charge made is one which cannot be followed by imprisonment, the present law is all right because it is possible for the accused person to plead guilty in absence and be fined, and to carry on with his ordinary work and lose no time, but where the offence charged is one which can be followed by imprisonment, it is not possible to proceed in the absence of the accused person, even though it is quite obvious to everybody that he will only be fined and not imprisoned. The Clause enables an accused person in those circumstances to plead guilty in absence. If the court thinks that the case calls for imprisonment, it will continue the case until the accused person is present. If the court thinks, however, that a fine meets the case it imposes the fine and this obviates the necessity of the accused person losing time and expense in coming to the court. Clause 10 is a small matter about the reading of summary complaints. It makes it unnecessary to read over a complaint to a man who already has the complaint in writing in his hand and has had an opportunity of perusing it. It is a saving of time. Accordingly, I present this rather miscellaneous Bill as one which will carry out a number of very useful reforms in Scotland. None of those reforms, to the best of my knowledge, can possibly be, in any way, controversial.
§ 4.58 p.m.
§ Mr. Mathers (Linlithgow)
I think the Solicitor-General for Scotland has given us a very clear and precise explanation of what is contained in this Bill—a Bill which, as he explained, is almost completely an agreed Bill, a Bill which has been very carefully put through the sieve of criticism, and which has emerged in a form which will commend itself generally to the House. It seems to me that it is possible for certain questions to arise on 1200 Clause 1, and I should like the Solicitor-General, in the reply which he has promised to make to any questions which are raised, to make a more extended reference to Sub-section (I, iv) of Clause 1, at line 21, page 2. He will see that that Sub-section, as it appears to me as one not learned in the law, as he and so many other hon. Members are, leaves it open for a creditor perhaps rather light-heartedly to commit a debtor to prison because of the fact that apparently for the first time in the law of Scotland a creditor is relieved from all responsibility in respect to alimenting a debtor who is put in prison. If a creditor is entirely relieved from any responsibility for the maintenance of the debtor whom he has put into prison, it seems to me that he might use his opportunity in that respect with less care than he otherwise would. I am sure the Solicitor-General for Scotland can make the position quite clear, and remove any doubts that we might have in that connection.
I am glad to see the beneficial addition made to the rights of adopted children under Clause 2. As the author of the Adoption of Children (Scotland) Act, 1930, I have always been keenly interested in the position of adopted children, and I am sure the words that the Solicitor-General for Scotland has used in this connection will be echoed by every Member of this House. I do not want to go through this Bill Clause by Clause; I think sufficient has been said to commend it generally to the House. We welcome most heartily the guarantee to the widow of an intestate husband of the first £500, without being prejudicially interfered with owing to some small indication by the husband that certain money accruing at his death shall be paid to his widow. It seems to me that the Bill should meet with whole-hearted support from all sections of the House, but I shall he glad to have a reply from the Solicitor-General on the point I have put with regard to Clause 1.
§ 5.4 p.m.
§ Mr. Robert Gibson (Greenock)
I join with my hon. Friend in congratulating the learned Solicitor-General for Scotland on the lucid way in which he has explained the Bill. Clause 1, on the face of it, bears the mark of a compromise, but I join with my hon. Friend in expressing a certain doubt about Sub-section (1), 1201 which seems to relieve the private prosecutor of the liability to aliment the debtor whom he has put into prison. A matter of public policy is sharply raised there. Why should the public funds be charged with the alimenting of a debtor put into prison by his creditor? The person getting the benefit is obviously the creditor; I do not see that the general public is getting any benefit, or that public funds should be used. That question might be considered before the Bill goes through its later stages. My contention is borne out by the wording of Sub-section (2). In line 34, mention is made of:a warrant to officers of court to search any premises in the occupation of the respondent.One naturally asks, who is to pay for that? This is part of an alternative remedy. It seems quite clear that the person instructing the officers of court, namely, the creditor, would have to bear that expense. If so, that would fortify the argument of my hon. Friend that the liability for the maintenance of the incarcerated debtor should remain with the incarcerating creditor.
I welcome the provisions of Clause 2, so far as they go. In connection with the adopted child, my welcome is wholehearted. This fills up a very grave lacuna in the Act which owes its genesis to the energy and work of my hon. Friend the Member for Linlithgow (Mr. Mathers). In this Clause the adopted child is put into precisely the same position as the legitimate child. That means, as the learned Solicitor-General knows, that the adopted child is given the right to sue for damages in the event of the death of the adopted parents. But equally, it gives a reciprocal right to the adoptive parents in the case of the death of the adopted child. Clause 2, Sub-section (1) says, after the opening words:In respect of the death of a person caused by the fault of another person an adopted child shall be deemed:(a) If adopted by two persons jointly, to the legitimate child of those spouses.Accordingly, the adopted child is put into the same position as a natural-born, legitimate child. As the learned. Solicitor-General recalls, these rights of damages for solatium are reciprocal in the case of parent and child. There is a right in the parent for damages for the death of the child, and a right in the child for damages for the death of the parent. Therefore, my welcome for this part of 1202 the Clause is whole-hearted. But, for Sub-section (2) my welcome is qualified. The only right that is given there is the right of an illegitimate person in respect of the death of either of his parents. That leaves out of account the reciprocal right of the parent for damages or solatium in respect of the death of the illegitimate child. I think that that is an overlook. The Bill could be very much improved if the same benefit that is given in Subsection (1) in the case of the adopted child was made as comprehensive in Subsection (2) in the case of the illegitimate child. As the Bill stands, there is only half the benefit given in the case of the illegitimate child. I think that the real intention was to make the benefit inclusive, to make it bipartite, instead of unilateral, as at present.
There is an unfortunate omision from Clause 2. Our law has recognised the position. I have only to mention the case of Eiston against the North British Railway Company. That is the case of the brother or sister. Our law in Scotland does not give damages or solatium to a sister for the death of a brother or to a brother for the death of a sister. In this Clause, which deals so well, as far as it goes, with this branch of our Scottish law, that amendment might well have been made, especially as the matter has been so sharply before our courts in Scotland for such a long time. I would suggest that, if possible, the benefits that are conferred by Clause 2 might be completed along the line that I have suggested.
I welcome Clause 4 very much. The Solicitor-General spoke of prorogating the jurisdiction of the courts in Glasgow in respect of a person living in Inverness. Such prorogation of jurisdiction is bad, but it is very much worse that cases should be settled in the courts of London affecting persons in Scotland. With regard to Clause 5, there is, under sub-section (1), an Amendment made, to which the Solicitor-General did not refer but which is very valuable. It gives to the surviving husband of a woman who has died intestate the same rights as are enjoyed by the surviving wife when the husband has died intestate. That is an amendment of our Scottish law which I whole-heartedly welcome. With regard to Clause 10, one matter which occurs to me is the question of service on the accused. The words used in the Clause are: 1203either the complaint has been served on the accused or ….May I take it that the intention there is that the service shall be personally on the accused? I think that that is the general interpretation of the word "service" in criminal matters in Scotland. With these observations, I give general support to the Bill.
§ 5.14 p.m.
§ The Solicitor-General for Scotland
I am glad that these points have been raised. With regard to, the query of the hon. Member for Linlithgow (Mr. Mathers) about the creditor's obligation to aliment, my recollection is—although I have not been able to check it—that this question was thrashed out in some detail in the Scottish Grand Committee in 1932. But, in any event, there is this consideration. Under the old law there was an obligation for aliment, but the amount which the creditor was bound to pay was, according to our present standards, extraordinarily low. I think it was 10s. for 10 days. A sum of that character would not have much effect on the decision of the creditor as to whether he should take proceedings or not. But the real safeguard is that, however unreasonable the creditor may be in making his application, he has to convince the court. I do not think that this small additional inducement, if you put it in that way, to the creditor to take action is likely to embarrass the court with a number of extra cases. The final, and indeed the only, reasonable safeguard will still remain in the discretion of the court as to what order should be made.
The hon. and learned Member for Greenock (Mr. R. Gibson) raised a further question on Clause 1, Sub-section (2) with regard to the warrant to officers to search. All proper charges that can be made against the person who puts a warrant into operation will be made, and I am sure that the hon. and learned Member does not want to alter that in any shape or form. The main criticism of the hon. and learned Member was directed to, as he thought, the unduly narrow scope of Clause 2. I agree that the points which he raised were points on which it is quite easy to have differences of opinion. They are points of great importance on which many people would tend to take opposite, and perhaps rather strongly opposite, points of view. With regard to the ille- 1204 gitimate child—and it was on that particular point that the hon. and learned Member concentrated—some people would undoubtedly say that a parent should be entitled to the solatium of damages if her illegitimate child was killed; other people would offer very considerable reluctance to agree with that, and we thought, rightly or wrongly, that, in view of the fact that there was likely to be some division of opinion, it was much better in this matter that the old rule should stand, the old rule being that the parent has no right to recover solatium in respect of the death of an illegitimate child. The same applies to brother and sister. Arguments of a different character would apply there, but there would also, I feel sure, be differences of opinion as to whether there should be this extension of the right or not. Our whole object, and indeed our whole justification, in coming to the House at this time with a Bill of this character is that it should be non-controversial. We did not wish to expand the existing law, anticipating that if we did that it would not receive unanimous approbation, and accordingly, without expressing any particular view about the desirability of the extension which the hon. and learned Gentleman advocated, I would rest my case on this basis, that I could not possibly accept these extensions and still present this as an agreed and a non-controversial Bill.
§ Question, "That the Bill be now read a Second time," put, and agreed to.
§ Bill read a Second time.
§ Bill committed to a Committee of the Whole House, for To-morrow—[W. Whiteley.]