HC Deb 08 May 1968 vol 764 cc545-60

The Sheriff Court shall have jurisdiction to hear and determine any divorce action commenced after the coming into force of this Act.—[Mr. George Willis.]

Brought up, and read the First time.

9.49 p.m.

Mr. George Willis (Edinburgh, East)

I beg to move, That the Clause be read a Second time.

Had I been sitting on the Opposition benches I might have been tempted to chide the Government very gently for putting Scottish business on at this time of night. I still gently chide the Government and I hope that the rebuke will be carried to the right quarters.

I hope that hon. Gentlemen have read the new Clause, which I commend to them for the elegant simplicity of the wording. I am convinced that this is a model that could quite well be followed by Parliamentary draftsmen since it is a very clear statement of what we are trying to do.

I have no doubt that I shall meet some opposition from my legal friends. I am sorry that I always do so, because I have a high regard for them. The only trouble about them is that though they are always anxious to reform the law, they are never anxious to reform their own institutions and practices. That is one reason why I come into conflict with them.

The Clause seeks to reform one practice. It seeks to give the sheriff court concurrent jurisdiction with the Court of Session to hear divorce actions. This idea has frequently been put forward by members of the legal profession, as well as by a number of ordinary citizens. It has been debated in the Press during the past few years, and the matter was considered by the Grant Committee. If sheriff courts could deal with divorce cases, they could be dealt with much more quickly, more conveniently, and more cheaply.

In paragraph 109 of its Report the Grant Committee recognised that, on balance, it would be more convenient and cheaper if divorce cases could be dealt with in the way that I am suggesting. I do not want to rehearse all the arguments, but I must make a few comments on the opinions expressed by the Grant Committee.

I was surprised to find that the Committee concerned itself solely with the question of expense to the person seeking a divorce, and did not seem to think that it mattered much if the litigant was receiving aid from the Legal Aid Fund. The Committee took the view that as most of the pursuers were eligible for legal aid, no great financial hardship was involved. I take the view that the Legal Aid Fund should be used properly and that there should be no waste of money. The Grant Committee did not mention that, but it said that this proposal would result in economies to litigants, and that they would find it more convenient to get their actions dealt with in this way.

The Grant Committee talked about the burden of work on the sheriff courts, but it did not think that there was any burden on the Court of Session. It said, in paragraph 113: In Scotland the Court of Session has never experienced difficulty in dealing with all the divorce actions initiated. Over the past few years we have been asked to appoint additional judges precisely because of the burden of work on the Court of Session. Some of the arguments advanced for increasing the number of judges were based on the fact that an increasing number of cases had to be dealt with. I was therefore staggered to read that the Grant Committee thought that there was no problem. Why in Heaven's name have we been asked to authorise the appointment of extra judges to deal with the additional work?

The last occasion on which we discussed the number of judges at the Court of Session was when the Administration of Justice Bill was going through the House. One of the by-products of that Measure is that the Court of Session has reverted to its former practice of having five judges sitting on Saturday mornings to deal with undefended divorce cases. In the light of this I find it difficult to take the Grant Committee seriously.

Let us look at the argument of convenience and burden of work in another way. We are told in the Grant Report that there were 2,770 divorce actions in 1965 and that one-third of them took place in the Sheriffdom of Lanark. That is 923 in Lanark. There are 18 sheriff substitutes in Lanark, and if we divide 923 by 18 we get 51 cases per year. In other words, each sheriff substitute might be called upon to take one divorce case per week. This really cannot amount to a very great deal of extra work. We are always blinded by this mass of statistics. We have the same experience on the Administration of Justice Bill.

When we work it out we find that there would be one divorce case per week if all were done by the sheriff court, but some might go to the Court of Session. The great majority are undefended and I am told by people with experience that on average an undefended divorce case takes 15 to 20 minutes, sometimes less.

This is the great burden which we are in danger of putting on the backs of the sheriff substitutes. I do not accept this argument. Like most of the things that come from this source I look at it with suspicion. I have heard the hon. and learned Member for Edinburgh, Pent-lands (Mr. Wylie) quoting these figures, and when we examined them we found they did not make the picture he was trying to present.

On the question of convenience, I am inclined to think that it would be just as convenient for the sheriff courts to deal with divorces as for the Court of Session. Having got the support of the Grant Committee on the aspect of convenience and on the question of economies that might be effected, I am bound to say I tend to think we could deal with the cases much more speedily than is done at the present time.

I do not accept the Grant Committee's Report. I would need much more evidence than is in the Report. There is no evidence in it about the burden of work, merely the statement that the Court of Session has never experienced difficulty in dealing with divorce actions. In the light of my experience and the debates we have had in this House I cannot accept that.

The Grant Committee goes on to the really important reasons, and I question these. In paragraph 110 it says: In our view this is a very profound statement— divorce is an important matter, because it affects the status of individuals, with consequent and far-reaching effects on rights to moveable and heritable property, and also because marriage and the family have great importance in the context of social organisation. One does not deny that it is important, but so are matters dealt with by the sheriff courts important, and I would point out that consequent far-reaching effects on the right in movable and heritable property arise out of divorce, and do not enter into consideration, I should hope, where——

It being Ten o'clock, further consideration of the Bill, as amended, stood adjourned.

Ordered, That the Proceedings on Government Business may be entered upon and proceeded with at this day's Sitting at any hour, though opposed.—[Mr. Harper.]

Mr. Willis

They arise out of divorce and not, surely, considerations affecting whether or no divorce should be granted. Therefore I am not influenced to a great extent by this argument.

Sheriff courts also have to consider important matters in actions of reparation for large sums of money, actions which arise out of accidents in mines and factories, and elsewhere. These are very important matters—very important matters indeed for the people involved—and the issues involved are very difficult, at times, very, very difficult. I do not think that it is an argument that this is something beyond the capabilities of sheriff substitutes in the sheriff courts.

The Report goes on to say: Obviously every divorce action does not raise difficult legal issues, but legal questions of great importance and complexity may arise"— this is what I call the legal mystique— legal questions of great importance and complexity may arise, particularly in the cases based on cruelty, where the development of the law is a continuing process. What is the position in the sheriff court? At the present time sheriff courts can entertain cases for judicial separation. Actions for judicial separation are based on adultery and cruelty. In other words, what the Grant Committee considered to be the most difficult form of case, that is, judging questions of cruelty in the relationship between a man and his wife, is already being dealt with by the sheriff court in cases of judicial separation, though this is the example particularly quoted why the sheriff court is not capable of dealing with this matter.

It is interesting that in this business the sheriff court already has concurrent jurisdiction with the Court of Session in cases of judicial separation. What do we find? In 1966 there were 716 actions in the sheriff courts relating to judicial separation, adherence, aliment, and similar matrimonial cases. One assumes, I think with some justification, that the majority of these actions were actions of judicial separation. In the Court of Session the the final judgments in 1966 in respect of actions of judicial separation numbered five. So, where the litigants had a choice of court to go to they did not choose the Court of Session for this very difficult matter of judicial separation, but they went to the sheriff court, where there were 716 cases against five which went to the Court of Session. So, where there was a choice the sheriff court was accepted.

The fact that the sheriff court did this work very well is borne out, I think, by the very small number of appeals which went either from sheriff substitute to Sheriff Principal or to the Court of Session. The number of appeals from sheriff substitute to Sheriff Principal in relation to matrimonial actions in 1966 was 16. The number which went from Sheriff Court to the Inner House of the Court of Session was also small—17. I submit that these figures show that the sheriff courts deal with the difficult matter of judicial separation effectively and satisfactorily and that the litigants were overwhelmingly disposed to accept their jurisdiction as against that of the Court of Session.

I do not know that there are many other arguments which the Grant Committee raised, although there is one which will no doubt be mentioned again tonight. This is that, by retaining this work within the jurisdiction of the Court of Session, we get uniformity of decision. I am not altogether impressed by that argument. I am not certain that uniformity of decision is necessarily good.

In England, it has been decided to have a number of cases taken in the county courts and it was obviously considered that other matters are just as important as uniformity of decision. Surely, over a period, with the discussions held between the sheriff substitutes and in other ways in order to consider matters of legal decision, there would tend to be built up a body likely to give similar decisions in similar cases—that is, if it is vitally important to have uniformity. However, the question of uniformity is the one remaining argument I think important, although I am not certain as to how much importance one should attach to it as opposed to the other relevant matters.

There is also the argument that the Court of Session is concerned at present in working out problems arising from the provisions of the Divorce (Scotland) Act, 1964 and the Succession (Scotland) Act, 1964. But if these cases had been dealt with by the sheriff courts, no doubt they would equally be engaged in precisely the same work.

I find it difficult, therefore, in the circumstances to find any valid argument against my new Clause. We would not be denying the right of access to the Court of Session. If a case were difficult, if it raised all these profound issues which could only be settled by the Senators of the College of Justice, there would be nothing to prevent its going there.

My hon. Friend the Member for Aberdeen, South (Mr. Dewar) is a solicitor. If a client came to him and said that he wanted a divorce, I assume that my hon. Friend, as a solicitor, would do his best for his client. If it was an open and shut case—and there must be thousands of such cases in which little is involved afterwards by way of children, property and so on—he would no doubt say, "This seems a simple matter and there is no need to go to the Court of Session." He would take advantage of the provision in my new Clause to gain the benefits, both financial and of convenience, which the Grant Committee admitted exist.

If my hon. Friend thought that the case was rather more difficult and that he should get the advice of an advocate, no doubt he would get that advice and the advocate would himself appear in the sheriff court. If on the other hand, the case raised the profound issues which we are told are raised—and the Report is fair about this—in only a few cases, as a solicitor seeking to do his best for his client, my hon. Friend would say, "In the circumstances, I think we should take this case to the Court of Session."

If this argument is not accepted, then those who do not accept it are suggesting that solicitors do not really know their business and do not really attend to the needs of their clients. That is rubbish. Much as I have criticised solicitors for various things in the past, it would be quite wrong to accuse them of this. They act in accordance with what they feel to be the best interests of their client, honestly and with integrity. In the circumstances of this case, they would have the choice of three courses. They could take a course which might be taken in a lot of cases, that of simply going to the sheriff court and the solicitor might do this himself, because both solicitor and advocate have access to the sheriff court. The solicitor does not have access to the Court of Session. This is something else that ought to be looked at, to get at this closed shop. Talk about restrictive practices! This is not an occasion on which to discuss this restrictive practice, however.

On the other hand, he could, if he did not do the job himself, decide that it was outside his scope and brief an advocate to go to the Court of Session.

Mr. Speaker

Order. The right hon. Member must not wander from his new Clause.

Mr. Willis

I am suggesting how this Clause would work in practice. There are so many pleasant byways down which one is tempted.

Mr. Speaker

The right hon. Gentleman must resist temptation.

Mr. Willis

I was about to express my gratitude to you, for drawing my eyes to the straight path of the Clause. This seems to be an improvement on the existing situation.

We are always being told that the party opposite stands for choice. Let us give the person concerned choice. This is what the Clause proposes. I hope that it will receive some support. I have tried to put the case moderately, and it ought to be discussed now by Members in order to test the feeling. I would like to think that the Government would look upon this with a fresh mind. I know what the Government's answer will be, but I would like to think that my hon. Friend the Under-Secretary would tear up his brief, given to him by his civil servants, and would judge this on the merits of the arguments. That would be a courageous thing to do, and my hon. Friend would go down in the pages of history as having established a glorious precedent, one well worth following. I hope that he will approach this Clause in that spirit.

Mr. Donald Dewar (Aberdeen, South)

It has been a great pleasure to see my right hon. Friend the Member for Edinburgh, East (Mr. Willis) enjoying himself on one of his favourite topics. We have all watched his long-standing interest in legal matters—an interest that has not on all occasions been appreciated by members of the profession. Once again, we have had one of his energetic verbal assaults which some people find a little off-putting. I am grateful that he has raised the subject, if only because, as his speech made perfectly clear, it deals with at least one section of the very important Grant Report on the sheriff courts in Scotland.

The section to which he has referred so copiously takes up only five out of something over 320 pages of the Report, so that if we are to have an adequate debate on this subject there is plenty of room for the procedural ingenuity of my right hon. Friend in the months or years ahead.

Legal assistance ought to be made cheaper and more available, and any kind of reform such as this new Clause must be judged on these criteria alone. It is unfortunate that passions, even at this time of night, run a little high, and particularly when my right hon. Friend is under way head-on collisions are apt to be the result.

Mr. Willis

There are no passions, just a whole-hearted zestfulness.

Mr. Dewar

I thought it bordered occasionally on righteous indignation, but we will not split hairs on that. There is apt to be a head-on collision. There are those who think that anything the Court of Session does is some wicked demarcation arrangement which has been created to victimise the ordinary litigant, nothing more than a kind of black Dickensian restrictive practice.

There are those who, on occasion, seem to defend it on the ground that we should not take divorce actions or undefended divorce actions out of its ambit, because they are the basis of the financial stability of the young advocate, without which my contemporaries in Parliament House could not live up to the standards to which they think they are accustomed.

I agree that there is nothing essentially impossible in my right hon. Friend's proposals. It is not heresy beyond the pale. Even the fact that ordinary citizens have advocated it on numerous occasions should not rule it out for consideration by the lawyers.

I also agree that there is no reason why the average sheriff in the sheriff's court should not be able to deal with a divorce action. As my right hon. Friend has rightly said, at the moment they are required to deal with the niceties of reparation and fine points of the law of contract. If I remember rightly—and these are now vague memories—the examination I sat on my law course, these seem to be more complicated and more sophisticated matters than the law of divorce.

Divorce is certainly an extremely important matter. I agree that status is something which should be considered carefully and reform should not be introduced for the sake of reform. But I object to the argument we hear advanced about divorce being a great occasion—that most people are divorced only once, some even do not get divorced at all, and very few people make a habit of it—and therefore, one should not object to making the ritual trip to the Court of Session, even if it costs that bit more. Those who advance that argument I suspect have never watched a Saturday morning in Parliament House when undefended divorces are being rushed through. I must not digress, but grounds are on occasions manufactured in a way which adds little to the dignity of the law and would seem to be a strong argument for reform in that sphere.

I agree that there is a general prima facie case for reform, and I am not convinced by the Grant Committee's argument as it stands. Nor am I convinced by my right hon. Friend's arguments either. Convenience certainly must enter into it. The Grant Committee pointed out that something like five-sixths of all cases come from the central belt and do not involve a great deal of travel. Of those outside the central belt, over a quarter come from Aberdeen and the surrounding area where a bit more inconvenience might be suffered. However, this is not a sufficiently major consideration, or it has not yet been proved so to be.

Mr. Willis

Surely there is inconvenience, even in the central belt, when someone has to go to a lawyer there who then has to engage a lawyer in Edinburgh. The lawyer in Edinburgh then has to engage an advocate and if witnesses are involved they have to come along too.

Mr. Dewar

My right hon. Friend is broadening the argument. I will be meeting that point later. He will be delighted to hear that to some extent I agree on this. On the narrow point of convenience, as defined and dealt with by the Grant Report, that argument is inconclusive, though perhaps slightly weighted in my right hon. Friend's favour. More investigation has to be carried out.

The fact that a large number of people get divorces on legal aid is not necessarily a relevant argument. If we could save money on the Legal Aid Fund, or use that public money to extend the Legal Aid Fund in other directions, that would be all to the good. I have always thought that legal aid showed in a stark way that litigation is all very well for the poor and the rich, but there is a horrible no-man's land in between.

Mr. Speaker

Order. We cannot discuss legal aid on this new Clause, interesting as that topic is.

Mr. Dewar

I think most hon. Members will know to what I am referring. It is something that the Minister should look into at some future date.

My right hon. Friend has talked about English precedents and changes in the English county courts. I am not sure that this is a good parallel. It puts the idea into circulation, but the structure of the English court system is different. County court judges, wearing a different hat but sitting in the same courtroom can grant divorces already. Therefore, it is nothing like so radical a change as my right hon. Friend is seeking.

He also dismisses the pressure of business in too cavalier a fashion. It is a real problem in the sheriff's court. The main point he made in his interjection is a vital one. Reform of the nature he advocates has all sorts of repercussions and other consequences that follow through the whole organisation of the legal system in Scotland.

If it is thought that there is a case here, other related points must be considered, such as the fees structure, the mystical magic circle of Solicitors to the Supreme Court and Writers to the Signet, entry to the advocates' profession and the two-counsel rule. I regret that the profession is not the subject of an inquiry by the Monopolies Commission. There should be such a far-reaching inquiry of which this should be an integral part. The Government's record on law reform is good and Bills embodying the proposals of the Law Commission are becoming a feature of the Scottish legislative scene——

Mr. Speaker

All this is very interesting, but we are deciding whether divorce cases go to the sheriff court, and we must keep to that.

Mr. Dewar

Yes, Sir, and I am trying to suggest that this cannot be done in a vacuum without this kind of far-reaching inquiry. There is a case for this reform, but it cannot be done in this way in this Clause. I hope that the Government will consider this as part of a general review. I hope that my right hon. Friend will get a sympathetic hearing but will not press the matter further.

The Joint Under-Secretary of State for Scotland (Mr. Norman Buchan)

I agree with the praise of my right hon. Friend the Member for Edinburgh, East (Mr. Willis) for his new Clause which is a model to us all. He tried to tempt me from the straight and narrow path and did not need the further tempting into other fields given by my hon. Friend the Member for Aberdeen, South (Mr. Dewar). I found the statistics that we are dealing with only five of the 300 pages of the Grant Committee slightly alarming. We can certainly look forward to a succession of very long nights.

My right hon. Friend the Member for Edinburgh, East was less than fair in considering the recommendations of the Grant Committee. It considered this question on the basis of his three arguments of speed, convenience and cheapness and came out firmly against the proposal——[Interruption.] My right hon. Friend cannot say that the Committee's arguments were unbiased but its conclusions were biased—[Interruption.] I was thinking that I should have complimented my right hon. Friend on having spent no more than the time taken on an undefended divorce action before referring to restrictive practices. He showed much restraint: I hope that he recognises the importance of some of the Committee's arguments and that the majority of the witnesses, as well as the Committee, thought that no change should be made.

The first question is whether this is appropriate to the sheriff court. The Grant Committee said in paragraph 114: In a small country like Scotland the Court of Session should play the leading part in shaping and developing the law, and in doing so should dispose of a good deal of the more important civil business at first instance. This is not just a question of uniformity, the point made my my right hon. Friend the Member for Edinburgh, East. Nor is it fair merely to say that in the stress and strain of divorce one can draw the conclusion that the only important factor is that which may arise from divorce. If that which may arise is of great consequence, then the fact of divorce is of equal consequence and, therefore, it is correct to say that this is an important part of the court's function. I appreciate that this is a subtle point, but the Committee went on: The fact that the great majority of divorce actions are undefended does not seem to us to detract from this argument; rather, it strengthens it. It is precisely in connection with undefended actions that the Court of Session may be required to play a leading rôle.

There is a main reason why I must advise the House to reject the Clause, but first, apart from any abstract arguments, I should mention two minor reasons. The first is that accepting a proposal of this nature, without consulting the legal profession, would draw a storm not only on my right hon. Friend's head but on mine as well. The second is that it is unconnected with any of the main items in the Bill.

The main reason is that it would be impracticable to give effect to it. There were 3,696 final judgments given in divorce actions in 1966. I do not apologise for turning to my brief because I want to be absolutely accurate. Although I am tempted by the blandishments of my right hon. Friend to cast my notes aside, he will appreciate the need for an accurate reply to this matter. About a third of all divorce actions arise in the Sheriffdom of Lanark. The effect of the new Clause in Glasgow and Lanarkshire alone would, therefore, be to allow 1,200 divorce actions to be raised in the sheriff courts in that Sheriffdom each year.

Mr. Speaker

Order. I remind the Minister that it helps the Parliamentary reporters if he addresses his remarks to the Chair and not to his right hon. Friend the Member for Edinburgh, East (Mr. Willis).

Mr. Buchan

I apologise, Mr. Speaker. and I take note of your remarks.

While less than 50 of these would be likely to be defended actions, the volume of court business which could be thrown on the sheriff courts if the Clause were enacted would be intolerable, given the existing pressure on buildings, staff and on the time of the judges. One is aware of the discussion that has been going on in this connection and one appreciates the great amount of business that must be handled. We will be discussing this matter tomorrow in another place. Anything which relieves the pressure on the sheriff courts is to be welcomed.

Mr. Willis

I dealt with precisely this point and pointed out that the figures worked out at about one case per sheriff substitute per week. If we take the higher figures with which my hon. Friend is dealing—they were in respect of the following year, I think—we see that the amount of work involved is not as great per head as it might seem at first sight.

Mr. Buchan

I am not attempting to over-emphasise the amount of work that is done. I am explaining that the sheriff court has an important load on its shoulders and that any additional work of this kind would represent an added burden. Despite the figures my right hon. Friend gave in connection with judicial separation, we cannot estimate the proportion of divorces that might choose that course. I suggest that if we did try to make such an estimate we would be taking a step in the dark. On the other hand, it is difficult to see any corresponding problem as regards the Court of Session which might justify the new Clause.

Mr. Willis

My hon. Friend says that he does not see any comparable difficulty for the Court of Session. He must be familiar with the debates that have been taking place over the years about the Court of Session and about the burden of work it has. Only last Christmas the Government asked for powers to appoint two additional judges.

Mr. Buchan

I agree, and Parliament allowed us to have one, so that there a reasonable compromise was achieved. I should have thought that my right hon. Friend, who had a rôle in those discussions, would have been reasonably satisfied.

10.30 p.m.

I agree with my hon. Friend the Member for Aberdeen, South (Mr. Dewar) that the situation in Scotland is not comparable with that in England. In the first place, the county courts have this jurisdiction placed upon them only in undefended actions, whereas this Clause refers to "any divorce action". In the second place, the change in England is a technical one and it will have relatively little effect upon the amount of business actually done by county court judges in county court buildings.

The question of cost is very difficult. The Committee said: Very few witnesses tried to estimate the actual savings in cost if divorce actions were heard in the Sheriff Courts, and those who made estimates tended to arrive at rather different conclusions. The Committee enumerated the assumptions on which in its view any calculation of savings should be made. It also spoke of the cost of providing additional judges, court staff and court buildings to deal with divorce actions in the sheriff court, and it concluded by saying: We do not believe that the net saving would be large.

Mr. David Steel (Roxburgh, Selkirk and Peebles)

Is the hon. Gentleman saying that he would look favourably on a new Clause which restricted this to undefended divorce?

Mr. Buchan

Of course I am saying nothing of the kind. I was saying that the comparison is not a valid comparison. That is very different from talking about any argument I might deploy were the hon. Member to put forward a new Clause on those lines. It is rather difficult to make an estimate as to any saving which might be made in this way.

The question of convenience is important. I accept the points put forward, but it is also true, as the hon. Member for Aberdeen, South said that a very great number of these cases come within the central belt. I do not accept that it is a real hardship when taking the climacteric step of divorcing to have to travel to Edinburgh. The Committee referred to an additional point that as opposed to those engaging in judicial separation it may be that many people like to have their divorce proceedings heard in the "comparative anonymity" of the Court of Session. For all these reasons I advice the House to reject the new Clause, but I rely on the good will of my right hon. Friend to withdraw it.

Question put and negatived.

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