HC Deb 16 July 1965 vol 716 cc1039-44
Sir J. Hobson

I beg to move Amendment No. 43, Clause 4, in page 4, to leave out lines 11 and 12 and to insert:

  1. (1) Civil proceedings for the enforcement of section 1 of this Act by interdict may be brought in Scotland by or on behalf of the Lord Advocate in the Court of Session or the Sheriff Court.
  2. (2) If in any proceedings under this section the Court is satisfied that the defender.

Mr. Speaker

With this Amendment we can discuss the following Amendments, all in Clause 4, Amendment No. 45, in page 4, line 19, leave out "sheriff may make an order" and insert: court may pronounce an interdict". Amendment No. 46, in line 19, leave out "that person" and insert "the defender".

Amendment No. 47, in line 23, leave out "order" and insert "interdict".

Amendment No. 48, in line 24, leave out from beginning to "on" in line 27 and insert: (3) Without prejudice to all rights of appeal against any interdict pronounced under the foregoing subsection it shall also be competent to appeal to the Court of Session against any order imposing. Amendment No. 49, in line 28, leave out "order made" and insert "interdict pronounced".

Amendment No. 50, in page 4, leave out lines 29 and 30.

Sir J. Hobson

I move the Amendment with the greatest trepidation, as it affects matters of Scottish law in which I have no expertise. I understand that it is the intention of the Government that the Clause should be similar to Clause 3, and should institute exactly similar procedures and rights as that Clause does for England. But this Clause does not proceed as the English Clause does, to give the Lord Advocate the right to seek the well-known remedy of an interdict, which corresponds to an injunction in England.

The whole Clause applies in reference to a process by which, in Scotland, the Lord Advocate can go to court and ask for the remedy of interdict which already exists in Scottish law. The purpose of the Amendment is to assimilate Clause 4 for Scotland to the procedure laid down in Clause 3 for England, where the Attorney-General will seek an injunction.

I am advised by those interested in Scottish law, whose names appear with mine in support of the Amendment, that this is a proper remedy and that it would in many ways be much more convenient to provide, as we have done in Clause 3, for the remedy of interdict to be sought in the courts by the Lord Advocate. It attracts rights of appeal in respect of proceedings in Scotland which may not be so attracted in the event of our providing a special remedy which is not the remedy of interdict.

There are also two points, apart from this general one, which I should mention. It appears to be provided by Clause 4 that all applications by the Lord Advocate are to be brought before the sheriff in the sheriff court and there is no provision, as there is under Clause 3, for any process at the instance of the Lord Advocate being brought in the Court of Session. Under Clause 3 it is possible for the Attorney-General to proceed in High Court if he desires, although he has an option to proceed in the county court.

It is probable that the majority of cases in England will be commenced in the county court, but there might be serious events in the heart of London where the sensible thing would be for important issues of law and fact, in circumstances of great publicity, to be commenced in the High Court by the Attorney-General and not in the county court.

I should have thought that the same thing could be said of Scotland. Whilst they might be rare there might be events causing great anxiety and publicity and of important interest in which considerable circumstances were at issue affecting the rights of citizens not only under this Bill but other rights which might be seriously affected. There might also be a difficult question of law which might have been the subject of dispute between different sheriffs in different parts of Scotland and it might be highly desirable to commence proceedings in the Court of Session in Scotland at first instance. The Amendments are intended to give the Lord Advocate the right if he desires in a particular case to start in the court of Session instead of having to start in every case in the sheriff court.

There is a point here where Clause 4 differs from Clause 3 and that is in the right of appeal to the House of Lords. Clause 4, as drawn in lines 29 and 30, provides that in any such appeal the decision of the Court of Session shall be final. I think that that applies generally to all appeals in proceedings begun by the Lord Advocate under Clause 4. I should have thought that it would be most regrettable if appeals in matters such as these are to go in England to the House of Lords, as I understand they will go, but that there will be no appeal from the Court of Session to the House of Lords.

There have been frequent occasions in the past when the courts of Scotland and of England have disagreed on particular views. It would be most unhappy if this Bill, of all Bills, was applied in different ways in different parts of the United Kingdom. I do not know whether in Scotland one would not be entitled to say something about an Englishman by reason of ethnic origin. It would be most unhappy if a court there took the view that Englishmen were of a different ethnic origin and the courts here decided that we were all part of the United Kingdom. I should have thought it highly desirable that if the laws of England and of Scotland appeared to be diverging it should be possible to reconcile the two by appeal from Scotland to the House of Lords.

I do not suppose that many cases would go to appeal. One must have leave and one would have leave only if it was essential that such an appeal should be brought. The fact that one should have it wholly excluded in Scotland but not in England seems a curious result, and for that reason alone I hope that some of the Amendments, and particularly the one about appeals to the House of Lords, may be accepted by the Government.

2.45 p.m.

The Minister of State, Scottish Office (Mr. George Willis)

As the right hon. and learned Member for Warwick and Leamington (Sir J. Hobson) has said, the effect of these Amendments would be to make three changes in the procedure set out in the Bill for the enforcement of Clause 1 in Scotland. The procedure is similar to that set out for England with certain differences which we think are suitable far Scottish practice in the courts and which suit Scottish legal traditions.

I will deal with those three points, but, first, I should like to say that the procedure under the Bill itself is, as the right hon. and learned Gentleman has described it, that the Lord Advocate applies to the sheriff court for an order and there is an appeal from that to the Court of Session, and no appeal further than that. The changes which these Amendments would make are that, first, the Lord Advocate would not apply for an order. He would apply for an interdict. Secondly, in addition to being able to apply to the sheriff court he would be able to apply to the Court of Session. Thirdly, there would be an appeal to the House of Lords.

In respect of the first of the three proposed changes, there is no subtle plot behind the provision in the Bill. It is simply that while, generally speaking, the interdict is the Scottish equivalent of an injunction in England, nevertheless the form of interdict which the Scottish courts have developed down the years would not be suitable in our view to cover cases under this Bill. Interdicts are granted only where rights have been infringed, and Clause 1 is not drafted in terms which expressly purport to create new rights.

It has, moreover, been held that the court would not grant an interdict for the purpose of seeking to ensure that a person obeys the law in general terms, but it is an essential part of the Bill that orders can be granted in this form to ensure compliance with the provisions of Clause 1. The Secretary of State, after consulting the Lord Advocate, decided that the kind of case which may arise under the Bill requires a different approach from the courts than that which has been developed over the years as a result of individual petitions for interdict.

Here there will be the Lord Advocate asking the court to order someone to desist from a practice not in itself a criminal offence but contrary to the public well-being. This is almost without precedent and in our view it requires new procedure on the lines indicated in the Clause. It is for this reason that we have set up the procedure that the Lord Advocate should apply for an order.

The second point which the right hon. and learned Gentleman raised was whether or not the Lord Advocate should be empowered also to be able to make application to the Court of Session. We agree that there are two possible views about this, but the Secretary of State and the Lord Advocate have considered at fairly great length what they feel would be most appropriate in Scotland. For the reasons which I gave in Committee, they feel that applications should be made to the sheriff court.

In the main, cases arising under the Bill will be concerned with local circumstances, local incidents and local issues, and in our view they should be dealt with in the local court. The Lord Advocate, who is the Law Officer charged under subsection (1) of the Clause with the initiation and conduct of proceedings for enforcement, has at his disposal established machinery, in the shape of the Procurator Fiscal's Department, in each sheriff court. The Procurator Fiscal will act on behalf of the Lord Advocate in taking action under the Clause as necessary, and he is, of course, responsible to the Lord Advocate.

In Committee, my right hon. and learned Friend the Home Secretary said that in the county courts in England justice was not too expensive and that it was speedy and effective. The same arguments apply to the sheriff courts in Scotland, but there is this difference between the sheriff courts in Scotland and the county courts in England. The sheriff court has always had a much wider jurisdiction than the county court.

For those reasons, we feel that the application should be made to the sheriff court. We were concerned also about the possible effect if cases were taken to the Court of Session. Taking account of all these factors, we felt that this was the right procedure in Scottish circumstances. The Lord Advocate can always go on appeal to the Court of Session, and the important issues which the right hon. and learned Gentleman said might arise in Scotland could, if necessary, in that way be settled there.

As regards appeal from the Court of Session to the House of Lords, our view is this. A case will have been considered by the conciliation committee, it will have been considered by the Board. It will have been considered by the Lord Advocate, it will have been considered by the sheriff court, and it will then have been considered by the Court of Session. In the circumstances, we feel that this really should be the end. The matter will have gone through a very long procedure.

It is not unprecedented in Scotland for there not to be an appeal to the House of Lords. I have a note of two precedents, one in the Small Landholders (Scotland) Act, 1911, the other in the Solicitors (Scotland) Act, 1933, and I understand that there are others. This was given very careful consideration by my right hon. Friends, and they felt that, by the time the matter had reached the Court of Session, it had travelled a pretty long way and received a great amount of consideration, of the lay kind at the beginning and of the legal kind in its later stages. For this reason, we were inclined to leave it at that and not prolong the process further by the lengthy and expensive procedure of appeal to the House of Lords.

Perhaps I may mention that I have discussed these matters with the hon. and learned Member for Edinburgh, Pent-lands (Mr. Wylie), who apologised to me for not being able to be present today. I should not like to say that we agreed about them; there were differences between us. But the Government's view at present is that the Clause as drafted is the most suitable for the conditions which obtain in Scotland.

Amendment negatived.