ADMINISTRATION OF JUSTICE (SCOTLAND) BILL (Hansard, 2 December 1948)

§ The Secretary of State for Scotland (Mr. Woodburn)
I beg to move, "That the Bill be now read a Second time."
This is a short Bill which might be described as a machinery Bill. Its main purpose is to permit, if necessary, an increase from 13 to a maximum of 15 in the number of judges in the Court of Session and the High Court of Justiciary in Scotland. In addition, the opportunity is being taken to empower the Court to fix the times of their own sittings; to transfer to the Court the Crown's present function of appointing from the existing judges the Lord Ordinary in Exchequer Causes; to clear up an anomaly in the present statutory qualification for appointment as a sheriff-substitute; and to provide for the appointment of an interim sheriff-substitute to fill a vacancy. Clause I provides for the increase in the number of judges.
It may help the House if I deal with the various Clauses individually. At present, there are 13 judges in the Court of Session—five in the Outer House and four in each of the two Divisions of the Inner House. These judges act also in the High Court of Justiciary, which is the supreme criminal court in Scotland. Their number has not increased since 1830, and since the war it has proved insufficient to cope with the increased volume of judicial business. There is no immediate prospect of a reduction in the 2284 amount of business; and the delays in its disposal are now serious.
In order to cover the present and future contingencies, it is proposed in the Clause that the number of judges should be increased from 13 to a maximum of 15, with the proviso that appointments in excess of 13 will not be made at any time unless the Secretary of State, with the concurrence of the Treasury, is satisfied that the state of business so requires. This means that in future the minimum number of judges will be 13 and the maximum 15, and the new legislation will enable the actual number to be reviewed from time to time in relation to the current volume of business. If the Bill becomes law, it is contemplated that the immediate appointment of one additional judge will be made.
Clause 2 deals with the sittings of the Court of Session. These sittings are at present governed by Section 4 of the Administration of Justice (Scotland) Act, 1933, which directs that the ordinary sessions shall begin and end on the Tuesdays and Saturdays preceding certain fixed dates. This has proved unnecessarily rigid in practice, and it is proposed that the Court should have discretion to fix the periods of the ordinary cessions. Clause 3 deals with the transfer of the power of appointment of the Lord Ordinary in Exchequer Causes. At present, he is appointed by the King from among the judges of the Court of Session. It is proposed to transfer this power of appointment to the Court itself, by which all similar appointments are now made.
It is proposed, in Clause 4 (1), to rectify an anomaly in the qualifications for appointment as sheriff-substitute. An advocate or solicitor, when appointed to the office of sheriff-substitute, is required by statute to be of not less than five years' standing in his profession. But service as a solicitor and as an advocate cannot, under the present law, be aggregated; and a man who has, say, 10 years' experience as a solicitor followed by two years' experience as an advocate cannot be appointed a sheriff-substitute. This Clause makes it clear that in such a case the service in both capacities is aggregated. Under the present statute an interim sheriff-substitute can at present be appointed only during the temporary absence of a sheriff-substitute. It is proposed in Clause 4 (2) to widen this power to enable an interim appointment to be 2285 made, as is sometimes necessary in a case where there is an actual vacancy in the office of sheriff-substitute, but no permanent appointment is immediately necessary.
This is a very short but very necessary Bill in relation to the present affairs of justice in Scotland. I gather that some hon. Members thought we were going to deal with the methods and process of justice, but, that will be a matter probably for later consideration. This Bill is rather to provide machinery by which justice can be administered, and it has always been one of the tenets of justice that it must not only be sound but it must be speedy. A great deal of hardship and suffering can arise from delay in the administration of justice, and, therefore, with a view to its acceleration, I commend this short Bill to the House.

§ Lieut.-Colonel Elliot (Scottish Universities)
Any Bill touching the courts of Scotland is, of course, a matter which touches the interests of Scotland, and, oddly enough, the interests of the ordinary man in Scotland to quite an exceptional degree. We are naturally an argumentative, not to say litigious, people, and it has always been one of our great Scottish interests and, indeed, one might say, recreations, for amateurs and laymen, to study the practice of the law by the skilled lawyers of the land.
The moving of the King from Edinburgh left a vacuum which was promptly filled by Parliament House, and the advocate in Edinburgh is as much a traditional figure as a millionaire in America or in the old days, a revolutionary in Russia. He was racy of the soil, and many of the legends and indeed the society of the capital have been largely conditioned by the gentleman of the long robe. Great figures in Scotland have themselves been lawyers and have practised in our courts. One of the greatest of all was Sir Walter Scott, and perhaps he has written one of the greatest legal novels in "Guy Mannering." A modern figure very deeply beloved, Robert Louis Stevenson, was also learned in the law of Scotland. Although he never actually practised, still he remembered to the end of his days, as he said himself, some old scraps of legal learning, amongst others that stillicide is not a crime, a phrase which perhaps would commend itself to 2286 the recollection of the Lord Advocate. I had to look it up when I first encountered it. The Lord Advocate will correct me if I am wrong, but I think it has to do with the dropping of water upon neighbouring properties.

§ The Lord Advocate (Mr. Wheatley)
indicated assent.

§ Lieut.-Colonel Elliot
I am glad to see that so far I am correct.

§ Mr. Woodburn
"Still" has other connections in Scotland.

§ Lieut.-Colonel Elliot
Although they too are concerned with the law, they are on the negative rather than on the positive side of the practice of that art.
The keen interest of Scotland in the law is evidenced by the fact that Robert Louis Stevenson, based two of his greatest and most popular novels—"Kidnapped" and "Catriona"—on the Appin murder. The former was particularly concerned with the circumstances of that murder, while "Catriona" was concerned with the matters arising out of the murder trial. The horror that some of the legal fraternity expressed at the Appin murder trials being fixed at Inverary, illustrates the clash between the clan feeling and legal rectitude and gives rise to some of the most interesting passages in the book. Robert Louis Stevenson, it is well to remember, introduced Lord Dunedin to one of the great Edinburgh social clubs, and Lord Dunedin handed on the tradition to very diverse figures such as Lord McMillan and Craigie Aitchison, both, by an interesting historical reminiscence, Lord Advocates in Labour Governments. Their diverse traditions now fall upon the shoulders of the present Lord Advocate, burdens exacting alike to the mind and the body of those who follow in the steps of those redoubtable figures.
The Bill, as the Secretary of State has said, is a technical Bill which raises no party issue. It concerns the more speedy administration of justice and for that reason we welcome it on this side of the House. Cases are piling up in the courts. I believe it is not too much to say that nine months delay between the adjustment of the pleadings, if I may use that term of art, and the final inquiry into the facts, is not an unusual delay. An 2287 increase in efficiency such as the Bill will give is overdue. I believe that Parliament House has been anxious for a step of this kind for some time past.
There are certain points which I should like to raise later on in Committee. We were indebted to the Secretary of State for his review of the Bill. We should like, however, to inquire further into the point why Parliament should now be asked to fix the lengths of the sessions of the court. I am not aware that there has been complaint in this connection, at least the legal circles in which I have made inquiry have not mentioned to me that there has been complaint of the fixing of the sittings. I would view with a certain amount of unwillingness any breaking or even weakening of the link between Parliament and the High Court of Scotland, which has gone on for centuries.

§ The Lord Advocate
I do not want to interrupt the right hon. and learned Gentleman, but I think he has got the thing the wrong way round. At present the court sessions are fixed under the Administration of Justice Act, 1933. They are definite periods fixed according to the calendar. Experience has shown that by adopting that method a certain amount of difficulty arises. For instance, in 1950, the court will resume after the Christmas recess on 3rd January, which is regarded as too soon after Hogmanay for any really serious business to be done in the Scottish courts.

§ Lieut.-Colonel Elliot
I have done my best to acquaint myself with the Statutes. I know that this matter is fixed by the Act of 1933, and in fact by Section 4 (1) of it; but Section 4 (2) gives the court power to extend the sitting of the court if necessary. I can only say that I have not heard complaint, and although the Lord Advocate brings in, to support his argument, the fact that a day or two after Hogmanay in 1950 it will be very difficult for the court adequately to transact its business, that still gives us a little elbow room in which we can inquire further into the matter. In Committee we might investigate the matter a little and see whether there is that general feeling in legal circles which the Lord Advocate indicated has been brought to his notice.
2288 I did not quite grasp the interpretation of Clause 4 which the Secretary of State was good enough to give the House. We should like to inquire into that a little further. It seemed that it was to allow either advocates or solicitors to become sheriff-substitutes, but that in the case of a solicitor, five years' qualification would enable him to hold the post. It seemed to those with whom I have been able to take counsel that merely five years' qualification was scarcely enough, and that five years' practice should also be required. It would seem that the mere passing of the law agents' examination and no further part in the practice of the law would not enable a man to take up the duties of a sheriff-substitute and that a further qualification, such as five years' practice in the case of a solicitor, would be necessary. Naturally, on that I have to be guided by those with whom I can take counsel, and on this matter I would regard the Lord Advocate and the Solicitor-General as the chief among them, and very willing we should be to accept counsel from them on this matter.
This is a non-party Bill brought before the House to facilitate and expedite the administration of justice in Scotland, and in such a matter the Lord Advocate and the Solicitor-General will, I am sure, regard themselves as the Law Officers of the House and not merely the Law Officers of the Government and will do their best to place at our disposal all the knowledge and tradition which their great Offices hold. On that understanding and on that reading of the Bill, we are very glad to accept the explanations of the Secretary of State and to offer our support in the further stages of the Bill.

§ Mr. Willis (Edinburgh, North)
I welcome the Bill, in the first place because it indicates that a very important section of my constituents are enjoying full employment. I welcome the Bill for a second reason. Scotland has always enjoyed a reputation for dealing expeditiously with legal matters, and we must retain that reputation. I welcome the Bill because U helps us to do that. The Secretary of State said that a large volume of work has accumulated. Obviously, if the Government come forward with a Bill asking for the appointment of two judges, there must be some reason, but the Secretary of State added that if the Bill became law, possibly one appointment would be 2289 made. That seems contradictory. If there is a sufficiently large volume of work to warrant the Government asking permission for the appointment of two extra judges, it is peculiar to say that possibly one will be appointed.

§ Mr. Woodburn
There is a special reason for that qualification. One of our Scottish judges has been giving very excellent service in charge of the trials in Japan. He is coming back and it will depend on how the business gets on and how it stands when he arrives back.

§ Mr. Willis
I take it from that, that there would be another appointment, in addition.

§ Mr. Willis
Perhaps the Secretary of State or the Lord Advocate could give some indication of the nature of the work which is accumulating, because I think it is rather important from a social point of view. Is it because there is an increasingly large number of divorces? What types of cases are accumulating? It would certainly be interesting to know. Arc Scotsmen as a race, becoming more litigious? The right hon. and gallant Gentleman the Member for the Scottish Universities (Lieut.-Colonel Elliot) said Scotsmen enjoyed an argument, but are we becoming more prone to recourse to the law, or is this increasingly large volume of work due to the volume of legislation that passes through this House? It would be interesting if my right hon. Friend could give some indication of the nature of these arrears.

§ Colonel Gomme-Duncan (Perth and Kinross, Perth)
I want to raise only two points and those very quickly. The first is that in Clause 1, I notice that no vacancy amongst these judges shall be filled unless the Secretary of State … is satisfied that the state of business in the Court requires that the vacancy should be filled. But the Clause also says "with the concurrence of the Treasury." It is perfectly obvious that where public money is concerned, the Treasury is naturally very much interested, but I hope we shall have an assurance that the Treasury will have no say in whether or not it is desirable to appoint an extra judge. That 2290 should be entirely a decision of the Secretary of State because, however excellent the Treasury are at financial matters—and none of us dare argue with that—it is obvious that they are not competent to decide whether a new judge is necessary from the point of view purely of legal business. I hope we shall have it made crystal clear that the only concurrence necessary is that when the money is required they will say, "Yes the money is forthcoming," and not that they shall be in a position to say to the Secretary of State," You do not understand this; we say you shall not have a judge."
My second point is in connection with Clause 4. It concerns the question of the five years' legal qualification for either a solicitor or an advocate before being appointed sheriff-substitute. I think we ought to realise, as I am sure we do in this House, what a very high reputation the sheriff-substitute his decisions and the dignity of his court have among the people of Scotland. I hope it will be made very clear, or rather more clear than it is, that not only should this gentleman whoever he is, solicitor or advocate, when he is appointed have been legally qualified for five years, but he also should have been in practice for five years. I do not think it would be a good thing from the point of view of the reputation of the sheriff-substitute that people should be brought in who might be on the retired list and perhaps not in actual practice either as solicitors or advocates. If a man is made sheriff-substitute he should have been in continual legal practice from the time he was qualified. It is a small point, but it is important. I think they should have been continuously in practice.
Apart from these two points I join my right hon. and gallant Friend the Member for Scottish Universities (Lieut.-Colonel Elliot) in saying that I think this is a very necessary and desirable Bill. I hope it will get a Second Reading without a Division.

§ Mr. Thornton-Kemsley (Aberdeen and Kincardine, Western)
While not differing in the least from the welcome which has been given to this Bill by my right hon. and gallant Friend the Member for the Scottish Universities (Lieut.-Colonel Elliot) I want myself to express regret 2291 that the Bill does not grasp firmly the nettle of the double sheriffship. I am sorry that the opportunity which is afforded by the introduction of this little Bill has not been taken to do three things: first, to abolish the office of sheriff principal; second, to provide for the setting up of appellate courts to fulfil the judicial functions of the sheriffs principal; and, third, to alter the name of the present office of sheriff-substitute to that of sheriff. In order to develop the case for these three reforms, I must ask the House to forgive a layman who is not versed in the law for his temerity in submitting his views on a matter over which there has been long-standing controversy in Scotland in informed legal circles.
There is no difference of opinion about the origin and evolution of the office of sheriff principal. In the twelfth century Scotland was divided into sheriffdoms in the same way as England, the sheriffs being responsible for maintaining law and order and for collecting the Royal revenue. Although the appointments to the office of sheriff were made by the Crown, the office soon became hereditary to the great landlords, who delegated their legal function to a deputy or sheriff depute, who became, in effect, the local judge. This situation persisted until the Heritable Jurisdictions Act, 1746, which abolished the hereditary sheriff and provided that there should be a legally qualified sheriff depute, a member of the Scottish Bar, in every county. These sheriffs depute were paid servants of the Crown, responsible for the administration of justice and for the preservation of peace in their districts, and were available to the Government in an advisory capacity.
Sheriffs depute were empowered to appoint substitutes who were not necessarily lawyers. That position persisted until 1787, when the salaries of the sheriffs-substitute were made payable by the Crown. In 1825 the substitutes were required to be lawyers and in 1877 their appointment was transferred from the sheriff depute to the Crown. In time the sheriff depute came to be called the sheriff principal. The ordinary judicial work of their districts was left to their sheriffs-substitute, the principals exercising a general supervision over the work of their substitutes 2292 and maintaining in their own hands the administrative and advisory functions.
I admit that the report of the Clyde Commission of 1927—the Report of the Royal Commission on the Court of Session and the Office of Sheriff Principal, presided over by the late Lord Clyde—recommended the retention of the appointment of sheriff principal. The Commission was not unanimous, however, one member favouring the abolition of the office and one favouring the reduction of the present number to four whole-time principals. Among the witnesses who appeared before the Clyde Commission there was a great diversity of opinion. Two judges, Lord Ashmore and Lord Shaw of Dunfermline, favoured the abolition of the office, as also did witnesses representing the Scottish Law Agents' Society, the Faculty of Procurators and Solicitors in Dundee, the Town Council of Aberdeen, the Society of Advocates in Aberdeen and various other faculties of solicitors and chambers of commerce.
In considering whether the office should be retained, or abolished, I think it necessary to consider whether each of the separate functions of the sheriff principal are being carried out entirely satisfactorily at present, or whether they can be discharged more efficiently in some other way and whether any saving can be effected without loss of efficiency by the abolition of the office. The functions of sheriff principal are threefold, firstly judicial; secondly, administrative; and thirdly, executive and advisory. In regard to its judicial functions, it was admitted by the Clyde Commission that the present system of appeal from one single judge——

§ Mr. Rankin (Glasgow, Tradeston)
On a point of Order. Can you inform me, Mr. Speaker, in what way this speech has any relation to the Bill?

§ Mr. Thornton-Kemsley
Further to that point of Order, would it be helpful to point out that this is the Administration of Justice (Scotland) Bill, and I am regretting that it does not contain a very vital reform, which would greatly facilitate the administration of justice in Scotland?

§ Mr. Speaker
It is difficult for me to answer. Forgive me, as an Englishman, if I do not know the intricacies of Scottish law.

§ Mr. Willis
Surely we are not all entitled to deal with all the things we think ought to be in the Bill?

§ Mr. Thornton-Kemsley
On Second Reading am I not entitled to regret very much that there does not appear in this Bill a reform which has long been advocated by a large section of legal opinion in Scotland, and to urge that that reform would be a great help to Scotland?

§ Mr. Woodburn
With all due respect, I think the hon. Gentleman is discussing a principle established in Scottish law as to the formation of the courts and the appointment of sheriffs and sheriff-substitutes and suggesting that it should be altered. I suggest, with respect, that that would not come under this Bill, which is: to authorise the increase of the number of judges of the Court of Session to fifteen, and to amend the law relating to the sessions of that Court, to the appointment of the Lord Ordinary in Exchequer causes and to the office of sheriff substitute.

§ Lieut.-Colonel Elliot
Further to that point of Order, is it not a fact that the short Title of the Bill is "Administration of Justice (Scotland)" and if it were so decided, it would be competent for the House to amend the short Title, if it so wished, and my hon. Friend the Member for West Aberdeen (Mr. Thornton-Kemsley) is dealing with a matter which is concerned with the administration of justice in Scotland.

§ Mr. Speaker
I think that, as a matter of fact, to bring all this in Order a reasoned Amendment would have been necessary. I do not think we can discuss the whole subject of Scottish law under this Bill.

§ Mr. Thornton-Kemsley
I bow to your Ruling, Sir, but may I make a submission that this point deals with the office of sheriff-substitute? In the Explanatory and Financial Memorandum, it will be seen that Clause 4 specifically deals with the office of sheriff-substitute. I am on a fairly narrow point, namely, the duties of sheriffs-substitute, and sheriffs principal in Scotland.

§ Mr. Speaker
It is difficult when these things are thrown at one at the last minute. If the hon. Member will proceed, I will then consider the argument.

§ Mr. Thornton-Kemsley
I hope, Sir, you will exonerate me from any intention of throwing things at you. I did not give notice that I intended to raise this matter. In all good faith I thought that I was perfectly in Order, and I shall endeavour to keep myself so during the remainder of what I have to say. I was dealing with the judicial functions of the sheriff principal. It was admitted by the Clyde Commission——

§ Mr. Woodburn
On a point of Order. There is nothing in the Bill about sheriffs principal. It may be, as the right hon. and gallant Gentleman says, that the short Title would have admitted that, but I do not think there is anything in the Bill about sheriffs principal or their duties.

§ Mr. Thornton-Kemsley
That is exactly why I am on my feet. I regret that there is nothing in the Bill about sheriffs principal. If I may continue, I agree with the Clyde Commission, which said that the present system of appeal from one single judge to another single judge was highly unsatisfactory, but if it is causing you anxiety, Mr. Speaker, I will leave that subject. I have said what I desire the Bill to contain, and I will leave that argument altogether and confine myself to a point which is within the terms of the Bill, and about which I shall be glad to put down an Amendment at a later stage.
What I wish to say concerns the very narrow point in relation to the sheriffs-substitute. I very much regret that this Bill does not alter the name of the present office of sheriff-substitute to that of sheriff. Sheriff Court Judges have long advocated this change. The word "substitute" used in this Bill is quite wrong and misleading. They are substitutes to no one. They occupy in their own right the position of judge ordinary appointed by the Crown. The term "substitute" is anomalous. It conveys an impression quite inconsistent with the status which the office has attained. I hope that between now and the time when this Bill goes upstairs the Government will consider this matter, and if they do so favourably, I hope that they will be able to accept an Amendment on quite simple lines which I have ready to cover this quite narrow point. It is an Amendment to the effect that the official designation 2295 of the resident judge of first instance shall be the sheriff, and that the designation of the appellate judge shall be the sheriff principal. It is probable that this change could be effected by Royal Warrant, but the present Bill, which deals specifically with sheriffs-substitute, presents a splendid opportunity to make this change by legislation. With apologies to you, Sir, I hope that the Government will accept this principle.

§ The Lord Advocate (Mr. John Wheatley)
This is a very short Bill, and the points which have been raised have also been very short. We were all most interested in the legal lore which was illustrated by the right hon. and gallant Gentleman the Member for the Scottish Universities (Lieut.-Colonel Elliot) and we shall certainly keep it in mind. I am sure that it will be much appreciated at legal dinners, With regard to the Bill, there are a number of points which seem to be exercising the minds of hon. Gentlemen. The first Clause has obviously been introduced in order to enable the work in the Court of Session to proceed more expeditiously. Unfortunately, there has been a great accumulation of work recently, and it is of the greatest necessity that these arrears should be wiped off as quickly as possible, because the essence of good legal administration is not only that it should be good and sound but that it should be expeditious. If people are held up for an undue length of time in having their cases heard by the court then legitimate dissatisfaction is bound to arise.
I have been asked about the nature of the arrears of work and I find for the Inner House which is the part of the court dealing with civil appeals, that whereas the Winter Sessions for 1936, 1937 and 1938 started with 23, 34 and 40 cases, respectively, last Winter Session started with 61, and that the justiciary appeals in the High Court of Justiciary for the same years were 60, 66 and 75 prior to the war; and 96 appeals were heard during the nine months' period between January and September of this year. There was an average of work for the Inner House judges who do the civil appeals and also the criminal appeals, from about 100 cases before the war, to 157 in the first nine months of this year. With regard to the civil work the cases 2296 on procedure role, which are cases on legal debates as distinct from proofs and jury trials, averaged 65 at the beginning of each session for this period prior to the war. They have increased by 1948 to 136, an increase of 100 per cent.
When we come to the proofs and jury trials, the number of cases down for hearing at the beginning of the Session during the three years to which I have referred prior to the war averaged 96. The number of cases down for hearing at the beginning of 1948 Session was 175, an increase of 86 per cent. From these figures it becomes abundantly clear that the work of the court has largely increased during the intervening years. Divorce cases as such do not hold up the general work of the court, although they too have increased by a very great proportion. The average number of cases in the calling lists at the beginning of the Session during the three years prior to the war to which I have referred was 75 per annum. In 1948 the number of such divorce cases exceeded 800. Most of these are undefended divorces which go through on a Saturday morning, and sometimes on a Friday, and do not unduly interrupt the other work of the Court.

§ Mr. Willis
I do not quite follow this. Is there any indication that these figures are increasing constantly or are they tending to diminish?

§ The Lord Advocate
Apart from the divorce cases, the volume of work generally has increased, but I think in regard to divorce cases we have reached the peak of the graph.

§ Commander Galbraith (Glasgow, Pollok)
I understood the right hon. and learned Gentleman to talk about the Inner House. Is not the Inner House represented by the First and Second Division, and do not they always sit as a Division? If that is so, how does the increase of one judge or two judges ease the work of the Inner House?

§ The Lord Advocate
I was about to explain that. The work of the court, both in the Inner House and the Outer House, is being affected by the absence of this one judge which we have suffered from during the last two and a half years. The judge in question was an Outer House judge, but sometimes, in order to clear off some work in the 2297 Outer House, an Inner House judge had to be taken out to do the Outer House judge's work. These judges do not only sit in Edinburgh, but occasionally, in fact frequently, they go on circuit, and it therefore depletes the number available to clear off the work at the Court of Session. If the Land Valuation Appeals Court sits, as it does in January, for a period of three or four weeks, three judges will be detached to sit in that court. Therefore, the absence of one judge, whether he be an Outer House judge or an Inner House judge, may affect the whole work of the court. The work may have to be carried from one judge to another, or one judge may have to transfer from the Outer House to the Inner House or from the Inner House to the Outer House, to keep up with the work in hand.

§ Mr. Rankin
Is not this increase to 15 really a return to the number of judges we used to have?

§ The Lord Advocate
It the hon. Gentleman wants to go back to the year 1532, probably he would be getting near the figure; but in modern times we have had only 13. That number was fixed by the Court of Session Act of 1830. For the last two and a half years, the court of session has been without the services of Lord Patrick who has been engaged in the war criminal trials in Japan. I think that we ought to put on record a tribute to the work he has done there which has reflected itself to the detriment of his health. I do not think that this occasion should pass without the House expressing commendation of that work of a public nature which he has done. I should like to point out that this has thrown rather a heavy burden on his colleagues whom he left behind.
Turning to the criticism of hon. Members, I should point out that we are merely taking the power to extend the number to 15. Whether or not we shall make an additional appointment will depend on the volume of work at the time. If we go beyond 13 and have 14 or 15, and a vacancy then falls due, but we find that the work has receded considerably, there will be no obligations to fill that post. We are not giving any guarantee that additions or subtractions will be made, but we have now the power to see that there are sufficient people to carry on the work. On the question of 2298 seeking the consent of the Treasury before the appointment is made, that is rather common form now. I think that hon. Gentlemen appreciate the manner in which these appointments are made—on the recommendation of the Lord Advocate through the Secretary of State for Scotland who makes the recommendation to His Majesty.
I would point out to the right hon. and gallant Member for the Scottish Universities that in Clause 2 we are altering the law to allow courts to fix their own terms. We are not making the procedure inflexible as it is at present. The request for that change came from the courts. It is because it was found by proceeding under the inflexible rule laid down in Section 4 of the 1933 Act, that most inconvenient terms—not to the court but to the public—were provided. The whole of this Bill is designed in the interest of the public. Therefore, at the instigation of the courts we have considered leaving the court, by Act of Sederunt, to fix the terms of the courts so that they can be adjusted according to when the holidays fall to ensure that the public are not inconvenienced by being brought to court at times of the year when normally they might be on holiday.

§ Lieut.-Colonel Elliot
Were these representations made from the courts publicly or privately? I am simply asking for information.

§ The Lord Advocate
The court, as represented by the Senate of the College of Justice, felt that the inflexible rule at present in operation was not in the interests of the public.

§ Lieut.-Colonel Elliot
And they have made representations to that effect?

§ The Lord Advocate
Yes, Sir. Clause 4 deals with the appointment of the sheriff-substitute. We are merely repeating what was the intention of the 1907 Act with regard to the stipulation of the qualifications for sheriff-substitute, but the wording of the 1907 Act was such that on a strict interpretation it meant that a solicitor who had five years' experience and then came to the Bar and became an advocate and who automatically ceased to be a solicitor, no longer had the qualifications. He had to wait until he had five years' experience as an advocate before he would qualify 2299 further for the position of sheriff-substitute. As my right hon. Friend pointed out, a man who had been 20 years a solicitor and who came to the Bar could not be appointed until he had been at the Bar five years, and that was manifestly absurd. We are merely putting in an explanation of what I think was intended in the 1907 Act—that we can count service in either branch of the profession as included in the five years' qualification.
I do not say that we would put into the statute the qualifications desiderated by the right hon. Gentleman, because it is very difficult to say what is meant by "having been in practice." Some people are available at Parliament House who are not in practice. These appointments are made on the recommendation of the Lord Advocate to the Secretary of State, who makes further recommendations, and, in the past, the legal profession and the public in Scotland have been prepared to leave that matter to the good judgment of the Lord Advocate. I think the House will be prepared to continue that tradition, because I do not think it has let them down.
With regard to the further point raised by the hon. Member for West Aberdeen (Mr. Thornton-Kemsley) I do not intend to deal with it, because it is a longstanding grievance by certain people which would arouse a great deal of dispute, whereas the essence of this Bill is speed, so that we may get these powers exercisable immediately. Therefore, we do not want the Bill to be held up by a long drawn-out controversy over a longstanding dispute. I do not propose to put such a proposal into the Bill, and I shall resist the proposed Amendment accordingly.

§ Mr. Thornton-Kemsley
I take it that the learned Lord Advocate is referring to the first point I made, which I later abandoned? I take it that he does not mean that he would be opposed on the narrow point of an alteration of the name.