HC Deb 28 June 1966 vol 730 cc1737-42
Mr. Wylie

I beg to move, in page 6, line 4, after "1958", to insert: where the granting of the order was not opposed by any of the parties to the action ". I do not propose to develop this Amendment at any great length, because it has been fully canvassed in Committee. I put it forward simply in the hope that the hon. Gentleman and the right hon. Gentleman have had second thoughts about it, because the Amendment would improve the Clause.

What the Clause seeks to do is to simplify, and presumably cheapen, the procedure by which variations can be made in the sheriff's court of orders pronounced by the presiding judge in the Court of Session. I can readily understand that in certain matters there is a great deal to be said for that and where the variation sought is a variation in respect of payments of aliment, something which is readily ascertainable, the proposals are commendable. I would go so far as to say that where custody is involved, provided that custody has not been in dispute before the presiding judge in the Court of Session, there is also a great deal to be said for having the variation made in the sheriff's court. After all, for more than half a century the sheriff has been handling custody matters and is well able to do so.

However, the real reason why I accept; the proposal in undefended cases is simply that when the variation is sought, what the sheriff is being asked to do is to look at the thing from the start, as it were, without having the difficulty of trying to ascertain the disputed grounds upon which the presiding judge made the original order.

In a case where custody has been contested, where there has been a conflict between the parties, there would be no saving in time and no saving in expense by requiring the sheriff, even with the agreement of the parties, to vary that kind of order. It would involve the sheriff having to ascertain all the facts upon which the original decision was reached. That would mean extending the notes of evidence and going through the notes of evidence to try to ascertain the grounds upon which the presiding judge reached his decision. Having done that, the sheriff would then have to consider the changed circumstances upon which the variation was being sought. It has been said that no harm can be done provided both parties agree. It would be very difficult to visualise parties in a contested case of custody agreeing to anything of the sort. Even if both parties did agree, it seems against the public interest that they should be able, by that agreement, to involve a considerable amount of public expenditure, particularly in the legal aid type of case. If this variation is to go, by agreement of the parties, to the Sheriff's Court, then all the expense of extending the evidence, all the expense of considering the thing anew by the sheriff has to be incurred by public funds.

In these circumstances, I think that this part of the Clause is contrary to the public interest. The purpose of this Amendment is to exclude from the operation of Clause 8 of the Bill, variation by the sheriff where custody has been in issue in the Court of Session at an earlier stage. We are certainly prepared to accept everything else but it appears to me that in the case, and it may be only an occasional case, where custody has been fought out, and these issues are usually fought out bitterly and at great length, it would be against the public interest to allow this variation, even by agreement of the parties.

Mr. Willis

The hon. and learned Gentleman the Member for Edinburgh, Pentlands (Mr. Wylie) has fought a long battle on this issue and he has steadily retreated until tonight, when he has produced only one argument in favour of making it necessary for custody cases to go to the Court of Session—the argument of expense. Before proceeding, I might say that his Amendment does not quite do that. It is still fairly wide. We have looked at the merits of this and of allowing these changes in orders to be made by the Sheriff Court as against the Court of Session. This was fully rehearsed during the Committee stage of the Bill, and I think the right hon. and learned Gentleman has rather exaggerated the argument concerning expenditure.

There are compensating savings on the other side, but in any case we feel that if the parties are prepared to go to the Sheriff Court they should be allowed to do so. It might be more convenient to them and it might conceivably save expenditure. That is why I said that the expenditure argument is exaggerated. It is not quite as simple as the hon. and learned Gentleman is suggesting. We can see no reason why a person should not be given the right to go to the Sheriff Court. Unless this is inconvenient, or one of the parties, and there may be three parties concerned, wishes to go to the Court of Session, he could do so. Anyone objecting to this could go to the Court of Session. Access to the Court of Session is not denied. All that we are doing is to provide a facility which we think will be of at least some help to some people who want to change an order made in connection with the custody of a child.

Amendment negatived.

Order for Third Reading read. — [Queen's Consent, on behalf of the Crown, signified]

10.14 p.m.

Mr. Willis

I beg to move, That the Bill be now read the Third time.

In commending the Bill to the House I will repeat that, although its provisions are for the most part somewhat technical in form, the changes made are important and should prove of substantial benefit to individuals affected by them.

During the proceedings of the Bill, we promised to pursue the matter of the Thelusson restrictions, and this was referred to the Scottish Law Commission. We hope that it may be possible to finalise these considerations shortly, and should this be so we propose to take any action that might be necessary by way of Amendment during the proceedings in another place. Apart from this matter, other suggestions were made for the improvement of the Bill. Effect has been given to some of them. The Government are grateful to all those who made the suggestions. But even when they have not been adopted they have been of great value in illustrating difficulties in the current law and suggesting possible lines of reform. Everything said during the passage of the Bill here and in another place when it was considered earlier will be most carefully considered by the Government from this point of view.

It is a happy augury for the future of law reform that criticisms of the Bill have been generally of a very constructive character. I should perhaps mention too how valuable has been the assistance of the Scottish Law Commission in suggesting topics for inclusion in a Bill of this kind and in offering advice on certain points. For a number of reasons into which I need not enter now, modernisation and reform of the law have for far too long received inadequate legislative attention. It is a subject to which the Government attach importance and on which they intend to be active. I hope that the Bill will be followed in time by other useful measures in the same field.

10.17 p.m.

Mr. Wylie

As we have made clear throughout the discussions on the Bill, we very much welcome proposals of this nature. I should like to think that perhaps a Bill of this sort may be introduced every year. Although we are naturally very proud of the legal system in Scotland, the scope for law reform is very great. Bills of this sort are exceedingly useful and will certainly receive the maximum co-operation from this side of the House.

The proposals in the Bill are of a relatively minor character. There are vast areas of law reform of a much more contentious nature to which no doubt the Government will be directing their attention in the years ahead. We very much welcome the technical aspects of the Bill.

As the Minister knows, I have throughout had the gravest doubt about the change in the wording of Clause 6 which took place in the earlier Bill when it was before another place in the last Parliament. I understand from what the Minister has said that we may be going back to the position which appertained at one time. It has always seemed to me that that is the proper approach to this aspect of the law.

10.18 p.m.

Mr. Ian MacArthur (Perth and East Perthshire)

I am sure that the Minister of State will be the first to recognise the enormous services rendered to the House and earlier to the Committee by my hon. and learned Friend the Member for Edinburgh, Pentlands (Mr. Wylie). I do not want to repeat the old joke about the absence of the Lord Advocate from the Government Front Bench, but I am sure that the Minister will join us in thanking my hon. and learned Friend for his skilful and learned advice during the passage of the Bill.

Mr. Willis

I thanked all those who made suggestions which we accepted and those who made suggestions which we did not accept.

Mr. MacArthur

I appreciate that. But my hon. and learned Friend provides the hon. Gentleman not only with suggestions but with guidance which I am sure he would be the first to recognise and applaud.

The Bill, which we welcome, has had a happy passage. It follows in a noble line of law reform Measures, some large, some small. I remember some years ago having the enormous pleasure, with the support of hon. Members opposite, of introducing and seeing through the House a small law reform Measure. There is so much scope for reforming the law in Scotland, and I hope that we can have further Measures of acceptable reform. If the Minister would devote more time to law reform and less time to selective employment taxes, we should be better pleased with him.

10.19 p.m.

Mr. David Steel

In welcoming the Third Reading of the Bill, I should like to support what the hon. and learned Member for Edinburgh, Pentlands (Mr. Wylie) said about future Measures. I hope that we shall take advantage of the procedure open to us in the Scottish Grand Committee so that we can go ahead of our English colleagues in law reform. Although I agree with the Minister of State in his modest commendation of himself that he got on very well without the Lord Advocate, I hope that I may be allowed to say that we would welcome one or other, or both, of the Law Officers in future. A remark like that comes ill from the hon. Member for Perth and East Perthshire (Mr. MacArthur), whose party succeeded in getting a Law Officer into the House only when they lost an election.

Question put and agreed to.

Bill accordingly read the Third time and passed.