HC Deb 22 March 1965 vol 709 cc216-26
Mr. N. R. Wylie (Edinburgh, Pentlands)

I beg to move Amendment No. 4, in page 2, line 5, to leave out "the Secretary of State and".

Mr. Speaker

It would, I think, be convenient for the House to discuss at the same time the following Amendment, which is really consequential, in line 8, leave out "the Secretary of State and".

Mr. Wylie

That will be satisfactory.

This is the second attempt which is being made to correct a feature of the Bill which is a thoroughly bad feature, which I assure hon. Gentlemen opposite has caused resentment among the legal profession in Scotland and which has never, to my way of thinking, been properly justified by anything said either by the Secretary of State on Second Reading or by the Joint Under-Secretary in Committee.

The Joint Under-Secretary undertook in Committee to have another look at this, and I hope that now he will accept the Amendment. I make no apology for repeating what I said in Committee—that the provision whereby the responsibility for making appointments to the Law Commission in Scotland is the joint responsibility of the Secretary of State and the Lord Advocate bears all the symptoms of a wholly unsatisfactory compromise. It is unnecessary because in the Government we already have, and must necessarily have, a Minister who is properly qualified to make appointments to a body of this nature. It is undesirable because it invites the possibility, to put it no higher, of a disagreement between two Scottish Ministers.

I agree wholeheartedly with what was said in Committee by the right hon. Member for Clackmannan and East Stirlingshire (Mr. Woodburn) when he described this dual responsibility as thoroughly illogical. I am sorry that the right hon. Gentleman is not here tonight. Who are the persons in respect of whom this power of selection falls to be exercised? The criteria to be applied by whoever makes the appointment are to be found in Clause 2(2): …persons appearing to the Secretary of State and the Lord Advocate to be suitably qualified by the holding of judicial office or by experience as an advocate or solicitor or as a teacher of law… On the face of it, the Secretary of State as a Minister is wholly unqualified to make a selection on the basis of that criteria, and on the face of it the Lord Advocate is wholly qualified to do so. Accordingly one must look with care for the reasons adduced in the course of discussions on this provision to find a justification.

On Second Reading, the Secretary of State described himself as a Minister of Education, Minister of Agriculture, Minister of Health and a Home Secretary, but on that line of reasoning it could equally well be argued that the Lord Chancellor should share his responsibility with those corresponding English Ministers, or at least with the Home Secretary. One is tempted to ask why Scotland has to be treated differently in this way and be deprived of the considered selection of the one Scottish Minister who is properly qualified to make a selection of this nature.

The Secretary of State went on to say that there were ample precedents for this and he quoted the Tribunals and Inquiries Act, 1958, but, as he must know, that is not a proper comparison. The tribunals with which that Statute was concerned was not confined to any particular set of qualifications. It was a mixed bag, so to speak, and the selection of the panel of chairmen, for whom legal qualifications would normally be expected, was confined to the Lord Chairman of Quarter Sessions, very properly. The Secretary of State went on to say in column 154 on Second Reading on 8th February that he made appointments on fishing matters to the White Fish Authority and Herring Industry Board. I have some difficulty in understanding how that analogy supports an argument in favour of his qualifications to appoint members of this Commission in the light of the criteria laid down in Clause 2(2). In Committee the Under-Secretary of State advanced a whole series of reasons why this power should be shared. He said that the Secretary of State appointed sheriffs, court officials and so forth, and he went on to say: This will not be a body dealing just with lawyers' law but one in which the layman, too, must have every confidence. The Commission must provide not only for the legal revision of the law but for the social, the economic, the political, and the what-you-will revision of the law".—[OFFICIAL REPORT, Standing Committee A, 4th March, 1965; c. 66.] But why should not the public have confidence in a body of lawyers selected by the principal Law Officer of the Crown in Scotland? I cannot see why any lack of confidence should flow from that method of selection. If I may say so, there seems to be some confusion of thought here. We are not dealing with a lay body, with a body drawn from a wide source. We are dealing with a body of lawyers whose qualifications satisfy the criteria to which I have referred.

This is not all. We know from the White Paper that the Lord Advocate's Law Reform Committee is to go. I say again—this is my last chance to repeat it—that this is a deplorable decision which has not been justified, especially having regard to the fact that the corresponding committees are retained in England.

Mr. Ross

That has nothing to do with it.

Mr. Wylie

If the right hon. Gentleman will have patience and listen, I shall come to that. I understood from the Under-Secretary of State that the Law Reform Committee is to be replaced by ad hoc committees. The appointments to these ad hoc committees are to be made by the Secretary of State and the Lord Advocate. Thus, the Lord Advocate, whose Committee is being replaced, is not even to be entrusted with the sole responsibility of selecting the membership of the ad hoc committees to perform the work formerly done by his Law Reform Committee.

I can see no reason why there should be this dual responsibility. I do not wish to attack the Lord Advocate because he is not here to defend himself, but cannot believe that he has wholeheartedly agreed to what is proposed. It is a compromise between the Secretary of State, who wants the thing himself, and the Lord Advocate, who tried, apparently unsuccessfully, to exercise his traditional function in the matter.

I speak in all sincerity because we all want the Law Commission in Scotland to get off the ground successfully, and I hope that the right hon. Gentleman will accept the Amendment and leave to the Lord Advocate the important responsibility of making these appointments.

Sir Knox Cunningham

Earlier this evening, I was encouraged by the Secretary of State to dare to take part in a Scottish debate. I am daring now to speak on these two Scottish Amendments. I support what has been said by my hon. and learned Friend the Member for Edinburgh, Pentlands (Mr. Wylie), and I have some questions to put to the Minister.

Why should we have just the Lord Chancellor in England making the appointments and not, say, the Prime Minister and the Lord Chancellor? Why should Scotland be different? Is there something in Scotland which requires the Secretary of State to intervene? Why is not the Lord Advocate capable of making the appointments himself? Will the Secretary of State be able to disclose some particular interest in the matter? The Secretary of State is apparently to make these appointments, together with the Lord Advocate. We should be told why Scotland is being treated differently from England in this Bill.

I have been encouraged to raise these matters by the Secretary of State. If he is not to reply to the debate, I hope that the Joint Under-Secretary of State, who is to reply, will tell the House why Scotland is being treated differently in this matter.

11.45 p.m.

The Under-Secretary of State for Scotland (Dr. J. Dickson Mabon)

I much regret that the long-distant Presbyterian ancestry of the hon. and learned Member for Antrim, South (Sir Knox Cunningham) is so far stretched that he does not recall that it is sometimes a virtue in Scotland to do things differently from the English. For that matter, the high offices of Secretary of State for Scotland and Lord Advocate are essentially different in constitutional origins and practice, and it is impossible to draw a parallel between the powers of the Lord Chancellor and of the Prime Minister, on the one hand, and those of the Secretary of State for Scotland and the Lord Advocate, on the other hand.

I was pleased that the expression of good will was mentioned by the former Solicitor-General tonight, because we were anxious in Committee not to have a Division on the constitution of the Scottish Law Commission. I am grateful that that was the case, and I hope that we have tried to conduct an exercise in seeking to get maximum co-operation from the legal profession in Scotland to make the Law Commission for Scotland work. I am sorry that the hon. Gentleman thought that there was some resentment among lawyers in Scotland over this proposal. From the Government side, and the Government offices side, we have not heard much about that resentment. On the contrary, we have heard some pleasant remarks and messages of good will about what will happen, and we hope that in practice we can demonstrate this when the Commission is appointed.

Mr. Wylie

Has the hon. Member read the correspondence in the Scots Law Times in the last few weeks?

Dr. Mabon

I also know who some of the contributors are.

Mr. Wylie

I hope that the hon. Member does not think that I wrote them.

Dr. Mabon

I am not suggesting that. The hon. Member has put his own position clearly in the House, and I respect him for it. We know who are the objectors outside. Many of the original objectors who wrote just before Christmas have long since been converted to the Bill. They thought that it would be an entirely different Bill. Many of the fears which have been expressed will be allayed once the appointments are made.

I promised the hon. Member and my right hon. Friend the Member for Clackmannan and East Stirlingshire (Mr. Woodburn) that I would convey to the Lord Advocate and the Secretary of State the terms of both their arguments. My right hon. Friend has explained why he cannot be here tonight and I accept his explanation, as, I am sure, will the House. Although my response was somewhat vigorous and, in a sense, perhaps, inflexible in defence of the proposition in the Bill, nevertheless I have done so, I hope faithfully, and I must tell them that both the Lord Advocate and the Secretary of State hold the view that what the hon. Member describes as a compromise—which I think, essentially, is a good solution of a difficult situation—should be kept in the Bill, and that the House ought not to be asked to take sides, either, as my right hon. Friend suggested, in favour of the Secretary of State or, as the hon. Member for Edinburgh, Pentlands (Mr. Wylie) suggested, in favour of the Lord Advocate.

I am sorry that in his anxiety to move the Amendment the hon. Member did me another injustice—but I merely shrink back in wounded horror at another offence on his part—when he said that no proper justification had ever been attempted by any Minister—

Mr. Wylie

I did not say that it was not attempted. I am sure that it was anempted. It was not given.

Dr. Mabon

This is becoming even more painful. May I redirect his attention to my speech—in the words of my hon. Friend, an excellent speech—which I delivered in Committee on 4th March as reported in columns 64, 65 and 66, where there is a complete explanation of the position of the Secretary of State and the Lord Advocate. The principle which he has criticised, which he mentioned during the Committee stage, that the Secretary of State was wholly unsuited—he said "wholly unsuited"—to appoint legal persons to a Law Commission, is all the more remarkable since for years the Secretary of State has exercised a considerable number of powers such as these.

It is the Secretary of State and not the Lord Advocate who is responsible for the appointment and the removal of sheriffs and the organisation of the sheriffs' courts; for the appointment of officials of the High Court of Justiciary and the Court of Session. He is responsible for executive action in relation to the pensions of sheriffs, for the appointrnent of sheriff clerks under the Sheriff Courts and Legal Officers (Scotland) Act, 1927, and, as a result of the Royal Commission on Scottish Affairs, the functions of the appointment of justices of the peace were transferred to the Secretary of State. The rule making functions under the Children and Young Persons (Scotland) Act, 1937, were transferred to him from the Lord Chancellor.

My right hon. Friend the Member for East Stirlingshire has said that this presents an excellent case for excluding the Lord Advocate, but we have taken the view that he should take his legitimate part, as a Minister of the Government, in advising on legal questions within the Government; and the Secretary of State and the Lord Advocate are convinced that they, and their successors in office, can quite easily and willingly co-operate on making these joint appointments.

It may be thought to be a novel and even unique arrangement, but we have tried out many experiments in Scotland. We have done many things for the first time and have shown that they can succeed. The hon. Member for Edinburgh, Pentlands has shown such goodwill toward our efforts that I hope he will not press his point at this stage.

Mr. Wylie

I cannot withdraw. I should like to make it clear that when I spoke of resentment in the legal profession I was not talking of the Bill as a whole but of the content of the Amendment now before us. As the hon. Gentleman knows, there is a great deal of support for the Bill, and it has my support, but I really cannot see any justification for what is proposed in this part of it. The Under-Secretary of State knows that we are dealing with something here which is entirely different from judicial appointments. When it is a question of appointing members of the judiciary from the High Court down to the justices of the peace courts, one is making appointments to constitutional office; and then it is perfectly understandable and proper that the Secretary of State should be responsible for appointments of that nature.

Here we are not concerned with the constitutional machinery, or its salaried staff. These are appointments to a legal Commission, using the word "legal" in its narrow sense; a commission of lawyers, and there is no more justification for the Lord Advocate sharing the responsibility here than for his sharing the responsibility of appointments elsewhere. After all, they are the same type of people; expert lawyers, appointed on the basis of their qualifications and training. The hon. Gentleman would be bound to follow the advice he received from the Lord Advocate, and I cannot see any justification for the sharing of this responsibility in the way suggested.

Dr. Dickson Mabon

I think the hon. and learned Member for Edinburgh, Pentlands (Mr. Wylie) has missed the point. The Commission is not going to deal with "lawyers' law" but with the much broader aspect of the law and, therefore, that is where the joint responsibility comes in. So far as his point about the ad hoc committee is concerned, this is apart from other inquiries, and it will be jointly appointed by the Secretary of State and the Lord Advocate and is considered a most important vehicle for the revision of the law.

Mr. Wylie

I appreciate what the hon. Gentleman is saying, but this is where there seems to be confusion of thought. Lawyers' law is one thing. It is the kind of thing that the Lord Advocate's Law Reform Committee has dealt with. These ad hoc committees are to take the place of the Law Reform Committee. Why should it fall to the Secretary of State to share in appointments to these committees? That is an indefensible proposition.

The Commission will not deal with law with social content. No narrow body of lawyers will do so. It is bound to be delegated or remitted to Departmental committees or Royal Commissions, drawing their membership from a wide field. These are the people who will, presumably, deal with law with a social content.

Having regard to most of what the hon. Gentleman has said in the past, I am sorry that I must dig my toes in on this issue, and I must advise the House to accept the Amendment. I am genuinely sorry that, having compromised on so many things in the Bill, we and the Government have not been able to settle on this one.

Mr. Ross

I am sorry that the hon. and learned Member for Edinburgh, Pentlands (Mr. Wylie) is not able to withdraw the Amendment. It is regrettable that when he was a Law Officer he was not a Member of this House. Now he is in the House, he is no longer a Law Officer. He has only been a Member since the last election. I do not think that he fully appreciates that the great difference in respect of Scotland and England in this way is in the actual office of Secretary of State. I combine within my person about six or seven different Ministries. [Interruption.] Does the hon. and learned Member for Antrim, South (Sir Knox Cunningham) wish to interrupt?

Sir Knox Cunningham

I was only saying that the right hon. Gentleman was personally a magnificent Pooh-bah.

Mr. Ross

I thought that the hon. and learned Gentleman would say something like that, It was his Government who transferred the latest acquisitions to the sphere of influence of the Secretary of State for Scotland. They transferred to the Secretary of State responsibility for roads and for the electricity authorities. The hon. and learned Gentleman was close to the seat of power then and had a lot to do in respect of appreciation of the office of Secretary of State. But if he has nothing more sensible to say than his juvenile intervention he would do better to keep quiet.

Sir Knox Cunningham

rose—

Mr. Ross

I will not give way.

Sir Knox Cunningham

I was only going to compliment the right hon. Gentleman.

Mr. Wylie

rose—

Mr. Ross

No. I am sorry. I have just started. The hon. and learned Member for Edinburgh, Pentlands has already—unusually—had two speeches.

Sir Knox Cunningham

Do not be so touchy.

Mr. Robert Cooke (Bristol, West)

rose—

Mr. Ross

No. The hon. Member for Bristol, West (Mr. Robert Cooke) is the last person I would give way to.

If the hon. and learned Member for Edinburgh, Pentlands would look even to the history of the changes in respect of the office of Secretary of State he would appreciate its unique nature. It was not without reason that my right hon. Friend the Member for Clackmannan and East Stirlingshire (Mr. Woodburn) argued that this should be the Secretary of State's responsibility.

Mr. Wylie

The right hon. Member for Clackmannan and East Stirlingshire (Mr. Woodburn) is an ex-Secretary of State. One can understand his atittude.

12 m.

Mr. Ross

Indeed. One can also understand the belated interest of former Law Officers. The position is that many of the duties of the Lord High Chancellor of Scotland were, by the Act of 1885, by practice, usage and custom, continued within the transfer to the Secretary of State of the Great Seal. [Interruption.] I know it is very interesting. It is also very important. In 1885 they decided that these appointments by law and by custom should be resided in that ancient office. The hon. and learned Gentleman failed to appreciate that what we sought to do was not to find a compromise but to regularise the position. What we are doing is to bring in the Lord Advocate on whose advice not only the Secretary of State but the Government must lean. I would have thought the lawyers in Scotland would have appreciated that. We are regularising the position in respect of the Scottish Office and the Lord Advocate.

Mr. Robert Cooke

Earlier, when the right hon. Gentleman refused to give way to me he was whining about the Secretary of State having too much to do and said that it was our Government which placed this upon him. What does he intend to do to divest himself of some of his duties?

Mr. Ross

I was not complaining but drawing attention to the unique position of the Secretary of State. That was the reason why in the Bill we followed this procedure in the appointment of the Law Commissioners of the Lord Advocate and Secretary of State.

Anyone with an appreciation of history and appreciation of the facts will realise why we have done this and why we think it is right.

Sir Knox Cunningham

I was sorry that the right hon. Gentleman was so touchy, as I have the greatest admiration for him. I have no objection to him holding the office that he is holding. Indeed, I think it is a very good thing. He should not think that I was criticising him. He was very forceful in Opposition, and I hope that he will be forceful in Government.

Mr. Ross

Personalities do not come into this. It concerns the Secretary of State whoever he happens to be. We are not talking about me personally but about the position of the Secretary of State. I would have thought that the hon. Gentleman would have appreciated that.

Amendment negatived.