HC Deb 20 March 1979 vol 964 cc1414-39
Mr. Fairbairn

I beg to move amendment No. 2, in page 2, line 20, at end insert ' the Secretary of State after consultation with the Lord President of the Court of Session or Lord Justice General '.

The First Deputy Chairman

With this we are to take amendment No. 3, in page 2, line 22, at end insert ' (1A) Notwithstanding the provision of subsection (1) above it shall be competent for a judge of the High Court or a sheriff in the Sheriff Court, to make arrangements for the citation of possible jurors, and to hold jury trials '.

Mr. Fairbairn

This raises a matter of great importance. The logic of the Secretary of State's approach to my hon. Friend the Member for Edinburgh, Pentlands (Mr. Rifkind) attracted me. It displayed the logic of the accountant, namely, the definition of the art of going wrong with confidence. I trust that the right hon. Gentleman will accept, on the basis of the judgment of Solomon, one half of the baby which I shall now try to sell to him.

Let us be clear about clause 5. It refers to the position in law. The law of the land is the law of the land. It is not the law of the land as the Secretary of State decides to tell it to us. The clause says: Without prejudice to any existing powers, a judge of any court may do anything during an emergency period…and…may authorise any person to do any such thing in relation to such proceedings. The provision does not say that that should happen only if the Secretary of State says so or that the Secretary of State should take the responsibility for what happens. It merely says that a judge may take this action.

The practical and political effect of the provision—and we do not intend to let the Government run away from this—is that such people as the hon. Member for Bolsover (Mr. Skinner), and no doubt the right hon. Gentleman the Lord President of the Council, will say"We all know that it is notorious that in Scotland it was the judges who indulged in the blacklegs' charter and in strike-breaking ". They would no doubt add"If the rights of man were left to the judges, there would be precious few left ".

Therefore, we want the Secretary of State to be the person who says to the judges"Thou shalt initiate the blacklegs' charter ". We want that to be clear and we do not want the right hon. Gentleman to hide behind his hideous desk in St. Andrew's House, or in his rather grander quarters in Dover House, where Lady Caroline Lamb had her adulterous association with the Duke of Wellington. I must add that that was not the case during the right hon. Gentleman's period of office. I think I can say, without risk of contradiction, that the Secretary of State has done nothing so romantic.

Mr. Millan

Nothing romantic in Dover House, anyway.

Mr. Fairbairn

The right hon. Gentleman says"not in Dover House ". He obviously wishes me to narrow the field of his Puritan past.

It is important that this matter should be made clear. With great respect to the Secretary of State, what he said was duplistic. With great respect to the Lord Advocate, what he said was incomprehensible and struck me as an attempt by a man chasing a rabbit to try to prevent it going down either of the alternative holes through which it could escape because he did not wish it to do so.

This is an important matter of principle. When people start throwing political propaganda about, as the hon. Member for Bolsover did this afternoon, they demonstrate that they are more interested in the rights of those who refuse to serve the law than in those who lose their rights when they do. We must be clear that this is a responsibility which the judges assume either on their own initiative or with the permission of, or on the instructions of, the Secretary of State. Those are the alternatives.

The Secretary of State indicated this afternoon that he would take the responsibility to activate the procedure and, by inference, that the judges could not activate it without his authority. I think that that is what he said. I think that is what he meant. If he did not, let us hear what he did mean. It is essential that this should be clear. Those are the alternatives, and there is no other course. Either the judges can do it on the authority of the Secretary of State and not without it in any circumstances, or they can do it on their own initiative and the Secretary of State is irrelevant to the matter.

The Secretary of State seemed to be giving the sort of answer that Christ gave when he was shown a Roman coin and replied: Render therefore unto Caesar the things which are Caesar's; and unto God the things that are God's. I have always thought that that was the most meaningless way of answering a question one could not answer. With great respect to the Almighty, it was a parliamentary answer.

It is not good enough for the Secretary of State to give a reply such as: Render unto me the political decisions and unto the judges the decisions to employ people in the courts ". Either it is a political decision activated by the authority of the Secretary of State—therefore amendment No. 2 says that the judges are doing it only with the authority of the Secretary of State—or it is something that the judges can do on their own initiative.

I have a deep and frightened suspicion that the Government hope that if anybody who is employed starts to jump up and down talking about blacking, the Secretary of State will peep—or more likely the Lord Advocate, because he is a shorter man—over the Dispatch Box, showing as little of his anatomy as he possibly can, and say"Well, it was not us. It was the judges who did it. They are the blacklegs." In a situation as serious and constitutional as this, I think that the Secretary of State must take that responsibility and make it clear that he does so by allowing our amendment.

Our second amendment—No. 3—permits, if it were possible, a judge of the High Court or a sheriff in the Sheriff Court, to make arrangements for the citation of possible jurors, and to hold jury trials. At present they are in suspension. In a way this goes back to the previous amendment, to enable the despatch of trials where people are held in custody. If the hon. Member for Galloway (Mr. Thompson), who has now departed, is so concerned about the radical constitutional change to the election of trial by jury, let us see whether, in such courts as are functioning and have staff who are loyal to their duties, we can allow them to organise jury trials.

That may mean that a judge has to appoint staff, on the authority of the Secretary of State, to cite jurors. If my recollection is correct, for every jury of 15 one needs to cite 45 people and it must be done by random selection from the electoral roll. One has to write out envelopes, send notice to the potential juror and record it. People may say that they cannot come, medical certificates have to be checked, and so on. It is a lot of work. That might require ancillary staff, but it certainly does not require anybody who is skilled in anything but the capacity to read writing or printing. In that regard, if what is standing between us and jury trials is the difficulty of the mechanics, let us give that power to appoint these people and let us for Heaven's sake not suggest that that is strike-breaking.

9.0 p.m.

If anyone does suggest that, let the Secretary of State, in all responsibility, accept amendment No. 2. Let him shame those who say that by asking"Would you rather that people lay in prison than that we asked one or two people to do the mechanics of citing juries so that justice may be done? "

Mr. Robin F. Cook

I would not wish to pretend that whichever way the Government moved in respect of this amendment it would make much difference to the way in which I view this clause. I take the view of the hon. and learned Member for Kinross and West Perthshire (Mr. Fairbairn) that this clause is explicitly provided clearly and specifically in order to get round the practical effects of a strike. It does not matter whether we call it strike-breaking, which has become an emotive term and has value judgments underlying it, or whether we find some less value-laden term to describe it. The clause is clearly provided in order to get round the practical effects of a strike. That is the root of the objection which I and other hon. Members have to this clause.

Now that we have finally come to the clause which has aroused the most concern among hon. Members, it is a pity that after two weeks in which the hon. and learned Gentleman has made some vitriolic speeches he finally rediscovers the good humour and wit for which we regard him with such affection.

I believe that if the clause is to go through at all, there is something to be said for amendment No. 2. My right hon. Friend would be well advised to take note of the manner in which it was moved, because it was made quite clear that, if there is to be strike-breaking or a circumvention of the strike, it should be he who should be taking the responsibility for it. My right hon. Friend should take note that that point was made by the Conservative Opposition. If I were him, I should be grateful if the Committee were sensibly to vote this clause out of the Bill and to leave me without that albatross to carry.

But if this power is to be given to anybody, there are a number of practical reasons why it should quite explicitly be given to my right hon. Friend rather than to those who sit as judges or sheriffs. First, it will not be all that easy to find any person to carry out the function of the clerks to the court. The only guidance we are given in clause 5 is that"any person"may be appointed to carry out this function." Any person"is not defined in any subsequent interpretative clause. Therefore, we await guidance as to whom the Secretary of State may have in mind for this function. It certainly will not be an easy function to fulfil.

The one group of people referred to in our debate last week as perhaps stepping into the breach are solicitors. I have had many dealings with solicitors during my last five years as a Member of the House. I would not wish to malign a group that cannot reply to anything said under the cloak of privilege, but it would only be fair to say that my experience has been mixed. I am not necessarily convinced that it will be easy to find solicitors who will be capable of taking over the very detailed, skilled and unique functions of sheriff clerks and clerks of the High Court.

If such people are to be found, it is clearly sensible that the search should be mounted by, and should be a responsibility of, my right hon. Friend rather than any individual sheriff or judge seeking to fulfil the terms of the clause.

Secondly, there is the subsidiary question of the remuneration that will be received by any person who is appointed under this clause. It is very unlikely that solicitors will be prepared to do the work of sheriff clerks for the kind of remuneration which has led members of the Society of Civil and Public Servants and of the CPSA to go on strike in order to obtain an increase in that remuneration. But if it is suggested that the remuneration for solicitors who take this job on a temporary basis should be different and more generous in order to attract them to that kind of work, it will clearly have an inflammatory effect on the strike which at present is continuing.

If any judgment is to be made, and a decision has to be taken on it, it is better that it is taken by my right hon. Friend because we are dealing with an extremely sensitive political decision. It would be improper to leave that decision to any individual sheriff or judge. I do not know how any sheriff or judge could come to a decision about the remuneration to be received by any person whom he may appoint under this clause.

There is the matter of the relationship between the clerks and the judges and the sheriffs. It is an important relationship for the continuing good functioning of the courts. If the courts are to function competently and efficiently there should be a reasonable relationship between the sheriffs, the judges and the clerks. I cannot imagine anything less likely to help that relationship to survive than for the sheriff or judge to appoint substitutes for the clerks during a period of industrial dispute. If it is possible to rescue and preserve that relationship after the emergency, it is better for the decision to be taken specifically by my right hon. Friend than by individual judges or sheriffs.

My right hon. Friend did not adequately deal with the point that I put to him on Second Reading. I referred him to the meeting yesterday of sheriffs in Glasgow who resolved that they did not want the power that is specified in the clause. My right hon. Friend may be able to clarify what they said to him. His response during Second Reading was that he would be taking the decision and that he would decide when this step should be taken. The decision of the sheriffs in Glasgow appears to be that they do not want this power in any event and do not want to have to work with people other than the clerks. It would be helpful if my right hon. Friend clarified this issue.

Taking these factors together, it appears quite plain on practical grounds that if this power must exist—and I am opposed to it—it should be clearly vested in the Secretary of State rather than in the sheriffs or judges. As drafted, I find it difficult to persuade myself that the clause does that.

Mr. Buchanan-Smith

Many of us are concerned about this clause, not so much as it was originally drafted because we understood quite clearly the purposes of the clause then. But during the debate on Second Reading many of us became confused by what the Secretary of State and the Lord Advocate were saying.

The Secretary of State made it clear that he did not expect the power for the judges to appoint persons to do the work of the court to be exercised except under his direction. My suspicions were aroused when I and my hon. Friend the Member for Edinburgh, Pentlands (Mr. Rifkind) intervened to find out precisely what was meant. The Secretary of State ran quickly for cover and refused to clarify further what he had said. This confusion became confounded in the winding-up speech of the Lord Advocate, who is normally very clear. Up to that point I was trying to put the best possible gloss on the matter. He did not, initially, want to allow any intervention on this point and when he eventually allowed an intervention he did not make himself clear.

This has made it more necessary to return to the matter in order not only to discover precisely what is meant by this clause but to try to distinguish precisely what is the Government's motivation. I hope that amendment No. 2 will give the Secretary of State or the Lord Advocate the opportunity to clarify the issue. There are two causes for concern in the clause and the amendment seeks to remedy the matter. If the power to bring the clause into effect is to rest on a policy decision by the Secretary of State—and he implied that on Second Reading—the effect is to give the Secretary of State a power of direction to the judiciary to carry out a certain course of action.

I cannot understand why the Secretary of State was so unwilling to deal with this matter on Second Reading. If he gives such a direction it will be totally out of keeping with the administration of justice and in contradiction with the separate functions of the judiciary and the Executive. At no time in the past has there been interference in matters between the Executive and the judiciary. We must have clarification.

We are made even more suspicious by a matter about which hon. Members below the Gangway are particularly worried. The Secretary of State is trying to have it both ways. He is trying to soothe his hon. Friends below the Gangway by saying that although the judiciary has the power he does not expect it to exercise that power. The Secretary of State is trying to persuade his hon. Friends below the Gangway that he is imposing a threat to hold over those who operate the courts, and that his hon. Friends do not need to worry. In that way he hopes to gain his hon. Friends' support.

Alternatively—and this is a more sinister aspect which my hon. and learned Friend the Member for Kinross and West Perthshire (Mr. Fairbairn) mentioned—the Secretary of State hopes to use the judiciary to break the strike. It is about that which his hon. Friends below the Gangway are worried, and rightly so. He hopes to take shelter in saying that no policy decision has been taken but that the judges have taken action. It is that attitude to which his hon. Friends objected in relation to legislation passed under the Conservative Government. In this confusion tonight we see the extraordinary spectacle of the Secretary of State attempting to bring into Labour legislation a principle which Labour Members opposed and later repealed by giving the courts power to deal with a strike.

Mr. Grimond

The clause seems to mean exactly what it says. There is a third possibility. I suspect that the Secretary of State hopes to give a policy direction which the judges will not obey.

Mr. Buchanan-Smith

My mind is too pure. I did not imagine that such a motive would cross the Secretary of State's mind. But the right hon. Member for Orkney and Shetland (Mr. Grimond) has greater experience than I in dealing with Labour Governments. That is a third possibility. I hope that the Secretary of State will clarify the position.

The principle of giving a direction to the judiciary is involved. Alternatively, is the Secretary of State trying to shelter behind the judiciary in relation to how he deals with strike action in the courts? The House deserves an explanation why the clause is worded in such a way. If the Secretary of State does not accept the amendment, we must have an explanation. If the direction can be given only in the event of a policy decision by the Secretary of State, our amendment is appropriate.

9.15 p.m.

If the Secretary of State is genuine in the intention that he explained on Second Reading, it should be the decision of the Secretary of State himself. It should not be left to the judges. We have to remember that the judges are not responsible for the administration of their courts. It is the Secretary of State, not the Lord Advocate, who is responsible for the administration of the courts. If we are to have a clause of this nature, the responsibility should not be left to the judges. It is not appropriate for them. It should be specifically spelt out that responsibility rests where it ought to rest. The Secretary of State should face up to those responsibilities and not try to shelter behind a smokescreen.

Mr. Dewar

There seems to be some confusion between what the clause says and what almost everyone seems to be agreed the clause means. It may alarm hon. Members on the Opposition Benches to know that, if I understand their position correctly, I agree with them. I am not sure what is encompassed by the word"judge ". We are assuming, presumably correctly, that it is a High Court judge, a senator of the College of Justice or a sheriff. I do not know whether this is defined. Stipendiary magistrates or people operating in district courts are presumably not included.

The position of the Opposition is that a judge should have power on his own to do anything that can be done by the clerk of courts, sheriff clerk or other officer of the court within the narrow operations of the courts as at present authorised—bail appeals, full committals and so on—and that in a narrow group of hearings held in the criminal courts, the judge, off his own bat, should be able to complete the processes but that there should be a different position, if I understand the way the Conservative amendment has been drafted, if it is a matter of bringing in someone from outside to do these jobs.

In other words, we are looking for a two-tier situation in which the sheriff can act ex proprio motu in order to complete the processes, record the decision and do the necessary paper work, but that if he wishes to import someone from outside to do it he should have specific permission, not necessarily a blanket permission, from the Secretary of State who shall have a duty to consult certain legal figures named in the amendment.

I heard my right hon. Friend the Secretary of State make his opening speech on Second Reading. Although it was not spelt out in detail, I was under the impression that on the second and controversial element of the importation of outside staff he accepted that there would have to be specific authorisation by himself or by his Department and that there was no question of sheriffs or judges deciding on their own bat, having looked at a particular situation, that they would be justified in bringing in Mr. Joe Bloggs from the local bowling club, local solicitors from round the corner or anyone else they found useful to tidy up matters.

I can hardly imagine that the Secretary of State or anyone else on the Government Benches would welcome that development. I have no doubt that the vast majority of sheriffs are manifestly sane and would not want to put themselves in that position. I understand that there is some evidence that the Glasgow sheriffs, having met and looked at the situation, have come up with the collective view that they would not wish to have that responsibility. Unfortunately, in any large group of people there are a few mavericks.

I can imagine that in some county courts a sheriff might enjoy the notoriety and excitement of bringing in outsiders. He might get a rush of blood to the head. He might have been incited by the opening speech of the hon. and learned Members for Kinross and West Perthshire (Mr. Fairbairn), with its heady invective against strikes in general and this strike in particular. He may have taken at face value the fact that people are being tortured deliberately by sheriff clerks who, on the one hand, are praised as pillars of respectability and, on the other, belaboured by the same party as mobsters indulging in torture. Thus incited, that sheriff may well decide to go ahead and bring in outsiders. That would be extremely unfortunate. It would lead to a great deal of confusion and friction.

I must confess that I think that the Opposition have a reasonable argument, on a plain reading and interpretation of the clause. The first part of the clause refers to a judge's power to act himself, and the second part refers to his power to authorise any other person. The two parts are couched in the same way. If we want the two-tier solution that I want, and which I think the Opposition want, it seems clear, unless my right hon. Friend produces some ingenious argument—it might not be difficult to find one that I have not thought of, but apparently nobody else in the Chamber has thought of one so far—that, as the clause is drafted, no authorisation is needed from outside and that a judge may act himself or authorise another to act in exactly the same way.

I think that my right hon. Friend the Secretary of State was right when he described what he wanted the clause to mean. However, I am not clear that that has been achieved by legislative drafting. If the amendment is not acceptable, it seems that a form of words other than that which appears in the clause would be better. No doubt an amendment could be introduced in another place. If we are to build into the Bill the differentiation which in the interests of industrial peace seems invaluable—the bringing in of outside labour whenever it is thought justified in specific circumstances is clearly an extremely serious action and one that should be considered at the highest level before implementing it—something on the lines of the amendment will be necessary.

Mr. Gordon Wilson

I add my support to the pleas of various hon. Members that the first amendment in the group be accepted by the Secretary of State. The wording of clause 5(1) gives power to judges to take action as they think fit. It is worded to give them permissive power. If a judge wishes to bring in contract labour from outside, he will be able to do so at any time of his choosing.

The hon. Member for North Angus and Mearns (Mr. Buchanan-Smith) said that it is the Secretary of State's responsibility to provide administration through the Scottish courts administration procedures. He is so responsible, and it would be wrong if that responsibility were to be passed to the judges.

There is a practical problem. Who will pay the contract labour that is engaged? There is nothing in the Bill to specify from where payment will come. No scale is arranged. The Bill merely gives power to the judge or sheriff to take on staff—in other words, somebody who will act the part of the absent court official.

The hon. and learned Member for Kinross and West Perthshire (Mr. Fairbairn) said that there may be the intention of bringing in volunteers. I am not sure whether that would be effective. The wording of the clause suggests that the amendment would be an improvement. It places upon the Secretary of State the right and duty to make arrangements to deal with the emergency if it continues and if it worsens. The Secretary of State has to decide at what time he should take action. I should have preferred the power to be limited by forcing the Secretary of State to bring an order before the House of Commons. That would enable the House to judge whether the emergency required the specific powers that are being sought.

If additional help is to be brought in, some care will have to be taken over selection. Selection should not be left to an individual sheriff or judge. Competency, qualifications and confidentiality will have to be judged. There could be a conflict of interest. If local solicitors are introduced to act the part of sheriff clerks, the ones who will know most about court procedure will probably be those who engage in litigation before the local court. Technical problems would emerge.

For those reasons, I feel that the Secretary of State should take on board the arguments that have been advanced from both sides of the Chamber. He should assume the responsibility that is his and not pass the buck to the judiciary, as he seems to be doing in the clause.

Mr. Rifkind

The hon. Member for Edinburgh, Central (Mr. Cook) made it clear that he had comments to make about the amendment and that he objected to the clause, as its purpose was clearly to break the strike or to contribute towards doing so. That was disagreeable to him. It is astonishing that the hon. Gentleman should be prepared to argue that in the case of any strike whose deliberate purpose was to cause the maximum inconvenience to the community the community should not be entitled to take such action as appropriate to combat that strike activity. It is not satisfactory to say that the community should simply sit back and suffer for the duration of the strike and must accept whatever inconvenience and hardship the strikers seek to impose upon them, and that any action of the community—or those acting on its behalf—to reverse that inconvenience is disagreeable and anti-social.

This is not a simple dispute between employer and employee. The employees are using the public deliberately as a target. It should not be a matter of party controversy to suggest that the public and the Government should take all action in their power to ensure that inconvenience and hardship are kept to a minimum.

The hon. Gentleman mentioned a meeting that he understood had taken place with the sheriffs in Glasgow, who indicated that they were not happy with clause 5. The sheriffs did not have the benefit of today's contribution from the Secretary of State. Perhaps the sheriffs looked at the Bill and assumed that the Act would state the position once it came into force. It may be that they naively and innocently believed that under the Act the judges would have the right to decide the matter and that there would be no reference to the Secretary of State having a role to play. Perhaps the sheriffs, being innocent lawyers, assumed that that was how the Act would operate.

Mr. Robin F. Cook

I am advised that the decision to which the sheriffs came was that they would not work with any person appointed under this clause. I do not know whether that advice was correct. I understand that it was communicated to the Secretary of State's office. I wait to know what was that decision. If indeed that was the decision, it is incompatible with the line followed by the hon. Gentleman.

Mr. Rifkind

With respect, I do not believe that there is the remotest possibility that the sheriffs informed anyone that they would refuse to act and would black anyone appointed by the Secretary of State to assist them in the courts. I do not believe that that is the case. If the hon. Gentleman was so informed, he has been misinformed and should check his sources before making such a case.

The important point of principle is whether the sheriffs and the public should be entitled to look at an Act of Parliament and know what would happen or whether they should assume that the Act of Parliament did not help them and that they must look outside the Act at what a Minister said in the House of Commons—even if that contradicted what the Act appeared to indicate.

The Secretary of State accepted one of my earlier amendments because it sought to clarify the position. He said that another amendment should not be accepted because it was desirable that the maximum clarity should be included in the Bill so as to ensure that there could be no misunderstanding by anyone of the rights and obligations of those affected by the emergency provisions. If that argument is good in respect of the previous amendment, it is much more relevant to this clause. The public and the judges should be in no doubt as to what is the statutory position and what are their rights and obligations.

This clause is different from the other matters now being considered. The Secretary of State indicated that the Executive would interfere in the actions of the judiciary. It may be that in certain limited circumstances that would happen. If so, it is proper that it should be done under a provision approved by Parliament and included in an Act of Parliament. The Secretary of State indicated that the amendment would do that. However, the amendment coincides with the statement of policy by the Secretary of State. It goes no further than what the Secretary of State indicated he intended to do. According to the amendment, the power should be exercised by the Secretary of State after consultation with the Lord President of the Court of Session or the Lord Justice General.

The Secretary of State said earlier that the judges would not be expected to use their powers under the provision until he had given permission for them to do so. If he did not mean that, the Committee will wait with eager anticipation to find out what he meant. At the very least, he has misled the Committee and allowed a great deal of time to be wasted in dealing with the matter simply as a result of his earlier speech in the House. He should either now speak and indicate what is the Government's view or he should approve the Opposition amendment and help to clarify the position. He must do one of those two things. He cannot simply ignore them.

9.30 p.m.

Mr. Millan

I made a very clear statement during the Second Reading debate. I said that once the decision had been taken by me I had every intention that responsibility in these matters would rest with me and not with the judges. I made that absolutely clear. I said that once the decision had been taken by me it would be for each court to decide whether in its own particular circumstances action of this kind was necessary and was possible. It would appear that what I said on Second Reading has not penetrated to all corners of the Committee. Therefore, perhaps I should be allowed another chance to try to explain what the clause says.

The Committee ought to have some regard to the practicalities of the position. First, a number of statutory duties are laid on clerks of court or officers of court. This is where the problem arises. I need not explain these duties to the Committee, but there are a considerable number of statutes, rules of court, and so on, in which there is mention of the clerk of court or an officer of court. If the individuals concerned are not working, there are in those circumstances considerable difficulties in carrying out the business.

The clause says, in the first instance—leaving aside for a moment the part of the clause which has caused some concern—that the judge himself—and that includes a sheriff—may do anything during the emergency period that is normally done by the clerk or officer of the court. I hope that that is perfectly clear. It is a matter of allowing the courts to do the maximum amount of business by using the staff that is available and using the powers of the judges themselves in the most flexible way. I do not think that there is any particular difficulty about this.

The basis of the whole problem here, I repeat, is that there are certain individuals, officers of court and clerks of court, who have certain statutory duties and that it is not possible to set these aside and allow anyone else to carry out these duties. There are other parts of their duties which are not statutory, in the sense that there is no particular statutory provision dealing with them, and there can then be flexibility in the use of staff for dealing with these practical duties which the officers of court carry out. That is the first practical matter that I want to bring to the attention of the Committee.

Secondly, we are dealing here with an emergency, and I must therefore have some regard to the practicalities arising in the emergency period. This is not permanent legislation, in relation to which one might wish to outline in considerable detail what would happen, where the whole of the legislation was being changed—the rules of court, and so on, and the use of clerks or officers of court. We are dealing here with a temporary situation, and therefore I have to have some regard to the practicalities of it.

Thirdly, there is the question of the administration of the courts, which a number of hon. Members have touched upon. That is my responsibility and not that of the judge or sheriff. As matter of practice, it is not possible for a judge to appoint whom he wishes to deal with the business of the court. Recruitment and remuneration are for me and not for the judge. That limits what a judge can do in this emergency period, regardless of what might be written into the Bill.

Mr. Fairbairn

The Secretary of State seems to be mystified by the fuzz of his own mind. The fact is that we are passing law. The law says that a judge may in any particular case authorise any person to do any such thing in relation to such proceeding. If the suspicions that have been voiced by a number of hon. Members are not right, the law says that Sheriff West, if there were such a person, who is the sheriff in Wickland, if there were such a place, may say to his friend the local solicitor"I say, Charlie, I shall not have justice held up any longer in my court. Now that you are retired, will you come and act as my clerk of court?"There is no point in the Secretary of State saying that in practice he would not send his wages. That man is a volunteer. That is the law that we are passing.

Mr. Millan

If the hon. and learned Member for Kinross and West Perthshire (Mr. Fairbairn) will be patient I shall explain the clause, which has been discussed with the Lord President of the Court of Session.

I hope that the strike will not continue for any length of time, but if it does I shall have to consider the question of outside help. Even if the strike does not go on for a considerable time, there may be a local situation that will require outside help. In those circumstances, one would have to examine an individual's qualifications to see whether he was competent to perform the duties that would be laid upon him under this clause. The judge and not the Secretary of State is the obvious person to do that. He is the person for whom the individual will work, and he should decide the adequacy of his abilities. It is not for me to judge the adequacy of an individual who may be brought into the court during an emergency to do work normally done by an officer of the court. That is why clause 5(1) is expressed in these terms.

The question whether outside help should be recruited—leaving aside the possibility that a particular local situation may arise in which that might be considered—raises major policy matters. Of course these matters should be the responsibility of Ministers and not of judges, whether of the High Court or of the sheriff court. I made it absolutely clear on Second Reading that all these matters of policy are for me.

I have explained why the clause is drafted in these terms. It deals with the practical situation of the individuals concerned rather than with the policy decision whether it would be desirable, necessary or inevitable that outside help should be provided for the courts. I have discussed this matter with the Lord President of the Court of Session and he told me that he wishes the policy decision to remain with me. He, as head of the judiciary, will not initiate action to recruit outside help in the absence of a policy decision of mine. That is the practical situation.

Mr. Buchanan-Smith

He does not need to.

Mr. Millan

The hon. Member for North Angus and Mearns (Mr. Buchanan-Smith) says that he does not need to, but he cannot have it both ways. If I were to accept amendment No. 2 or amendment No. 3, I could enforce outside help in the courts against the wishes of the Lord President of the Court of Session. But the way in which the clause is drafted at present means that it is not possible for me to do so. If the hon. Member for North Angus and Mearns is worried about the Secretary of State interfering with the judiciary, he can avoid that by voting for the clause as it stands. The way to ensure that the Secretary of State would be able to impose outside help on the judiciary against its wishes is to vote for the Opposition amendments.

There is no intention on the part of the Lord President of the Court of Session—and he wishes this to be made clear publicly—to call in outside help in the courts in Scotland, short of a policy decision by me. Even where such a policy decision was made, the discretion on whether outside help in any set of circumstances was needed would still rest with the individual judge or sheriff.

Mr. Buchanan-Smith

I am grateful to the Secretary of State for the stage to which he has carried his explanation. As far as he has gone, I go with him. But does he realise that in clause 5 as it is drafted there is nothing to prevent any individual sheriff and the sheriff courts of Scotland from appointing someone to assist him in a particular job? No matter what assurances the right hon. Gentleman has had from the Lord President, nothing in the Bill can prevent an individual sheriff from doing that. In those circumstances, what is the value of the right hon. Gentleman's assurance that someone will be appointed only on his direction, as a result of a policy decision?

Mr. Millan

Of course it is theoretically, practically and legally possible for a sheriff to decide to use this clause in a way that will enable him to recruit outside help without a policy decision having been made, or even in defiance of a policy decision made by me. However, I have discussed this with the judiciary and I am satisfied that it will not, except in exceptional circumstances in which I would expect consultation, allow this to happen. My hon. Friend the Member for Edinburgh, Central (Mr. Cook) and others were only too willing to assure me and impress upon me that the sheriffs and the judges did not want this power.

9.45 p.m.

The hon. Member for North Angus and Mearns may have different information. The matter has been discussed not only with the Lord President but with the sheriff principals. It cannot be said that they are anxious—indeed, they are the opposite—to initiate the introduction of outside help to the courts, except on the basis that the decision on a policy matter of this sort is taken by the Secretary of State. If I felt that the policy decision should be taken, I would take it.

Mr. Fairbairn

I am beginning to wonder whether the lateness of the hour is disturbing the sanity of the Secretary of State. The matter has nothing to do with sheriff principals. Is it seriously suggested that, if Sheriff X decides to activate the law and appoint a retired local solicitor as sheriff clerk, he could be prevented from doing so by the sheriff principal? He can produce an Act of Parliament and say"I am obeying the law of the land ".

Mr. Millan

I am not suggesting anything of the sort. The clause is drafted to allow a particular sheriff or judge, if he was so disposed, to appoint outside help. I have made that absolutely clear. The administration of the courts and remuneration are matters for the Secretary of State and my Department and not matters for the sheriffs or the judges. The Lord President has consulted the judiciary on the matter, and he has stated unequivocally that he wishes it to be publicly known that there is no intention on the part of the judiciary to recruit outside help, short of a policy decision by me. Therefore, the prospect of its happening is negligible.

If there is a slight deficiency—I am not sure why Conservative Members are so worried about it—the amendment proposes a remedy, allowing the Secretary of State, regardless of the wishes of the Lord President of the Court of Session, the results of any consultations and the wishes of the local sheriff, to impose outside help in the courts of Scotland. That would be undesirable.

Mr. Teddy Taylor

If this is a genuine misunderstanding and the Secretary of State wishes to retain the policy decision, would not the answer be to lay down that the new powers to appoint persons in particular cases should operate from a date to be specified by the Secretary of State? The Secretary of State admits to my hon. Friend the Member for North Angus and Mearns (Mr. Buchanan-Smith) that a sheriff could go ahead and make the appointment, although he thinks that is unlikely. On the other hand, the Secretary of State says that he wishes to retain the policy decision to himself. Would not the sensible thing be for the Secretary of State, by order, as from a date to be specified by him, to provide that this part of the subsection would come into effect? That would be a way to resolve what may be a misunderstanding.

Mr. Millan

That is a suggestion, and if the hon. Gentleman put down a suitable amendment it would be considered. However, we are dealing with emergency legislation. I understand that it is the general wish of hon. Members that any sensible steps to help to ameliorate the difficult position in the Scottish courts should be taken. It seems odd to rush through this emergency legislation and then to say that one provision of that legislation could come into effect only later, by means of an order by the Secretary of State. The Opposition should consider the practical consequences of the amendment and what would happen if the strike continued, say, through the Easter Recess. It would be unwise of the House to accept the amendment.

I have explained that policy decisions will be taken by me. That is a matter of considerable importance, and I am in the House to be questioned by hon. Members. There is no question of my sheltering behind the judiciary. The responsibility is mine and I intend to discharge it. That is what the judges want me to do.

Mr. Teddy Taylor

We appreciate that a policy decision may not be necessary, but, if it is made, how does the right hon. Gentleman propose to communicate it to those affected and to the public?

Mr. Millan

There is no difficulty about that. Before I introduced the Bill, I answered two private notice questions about what was happening in the courts. It is unlikely that I should make a policy decision without being questioned about it in Parliament. If the hon. Gentleman wants an assurance that I would come to the House with any policy decision, I give him that assurance.

In case there is any misunderstanding, let me make clear, as I did on Second Reading, that I hope that that situation will not arise. I have no wish to get involved in such a procedure. However, if circumstances arise in which I feel that it is necessary that a decision should be taken, I will take the decision, communicate it to the House and be subject to cross-examination on it at that time.

Mr. Fairbairn

Perhaps I may assist the Secretary of State. We are genuinely worried, and he seems to be arguing about a matter which is pretty obvious. Would he consent to an amendment inserting in subsection (1) the words with the consent of the Secretary of State "? That would make the subsection read: a judge…may, with the consent of the Secretary of State, authorise any person and so on.

Mr. Millan

If a manuscript amendment is tabled, I shall consider it. I said earlier that an authorisation must have regard to the qualifications of the person concerned, and that is a matter for the judge to decide in the light of local circumstances. The hon. and learned Gentleman would not expect me to make decisions about individuals.

If a manuscript amendment were tabled in the terms proposed by the hon. and learned Gentleman, I would consider it. We shall have a Report stage because I have already accepted one amendment and it might be better for manuscript amendments to be considered then. Perhaps we could have your guidance, Mr. Godman Irvine, on whether any such amendment should be discussed at the Committee stage or later.

The Second Deputy Chairman (Mr. Bryant Godman Irvine)

As there has to be a Report stage, the Secretary of State may consider that he should deal with any manuscript amendments at that time.

Mr. Millan

I am sure that the House will accept that suggestion. It would be more convenient to discuss manuscript amendments on Report because that would give me time to have a look at them.

I hope that I have made the situation clear. I hope that it will not be necessary for me to make a policy decision. If it does, the responsibility will be mine. That is the view not only of myself but of the judges. They, as well as hon. Members, will be anxious to read my explanation.

Lord James Douglas-Hamilton

Dissatisfaction with the clause has been expressed from both sides of the Committee and in every speech except that of the Secretary of State. However, in view of the right hon. Gentleman's assurance that the Government will be prepared to consider the matter again, through manuscript amendments on Report, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Rifkind

I beg to move amendment No. 9, in page 2, line 23, after ' a ', insert ' certified '. The amendment refers to clause 5(2), which states: During the emergency period, a copy of any document lodged in court in connection with legal proceedings…may be accepted by the court in lieu of the original… Nowhere is there stated in the clause any way of ensuring that the copy that is to be used by the court and be considered as relevant, as the original would normally be, should be a certified copy or in any way guaranteed to be a true record of the original document. This seems to me to be a necessary and desirable precaution and I hope that the Government will find the amendment acceptable for that reason.

Given that these are rather exceptional circumstances that are requiring the House to allow copies of documents to be used where originals would normally be necessary, the requirement that the copy should at least be a certified copy, thereby giving some indication or guarantee of authenticity, would appear to be a highly desirable precaution, and I hope that the Government will find this acceptable.

The Lord Advocate

I understand the spirit in which this amendment is moved, but it is not really well directed. The amendment does not specify who has to certify that the document is a copy, but whoever had to do it could hardly certify that the document was a true copy in the absence of the original, which in this situation of crisis may be locked away in a safe to which access cannot be gained. That is the reason for a copy being necessary.

Moreover, as the hon. Gentleman will be well aware, the clause also provides in subsection (2) that it is open to a party who disputes whether it is a true copy to prove that it is not a true copy.

It would therefore appear to me that for both these reasons the amendment is misconceived and that it is better to leave matters as they are in the Bill as at present worded.

Mr. Fairbairn

The Secretary of State inserted a word into this clause when he was explaining it on Second Reading which is not in the clause. It gives me some cause for concern, and with your permission, Mr. Godman Irvine, I think it is better if we raise it rather than let it pass. It is the word"original ", because the Secretary of State said several times"copy of an original document ". The clause does not say"original ", and if, as the Lord Advocate says, it is locked up in a safe it is clearly difficult to take a copy of it.

Therefore, as the clause stands, it could be a copy of a copy of a document, because the word"document"does not imply the word"original ". I want to know whether it is the original, as the Secretary of State said, or whether a copy of a copy will do.

The Lord Advocate

The word used in the Bill is"document"and that would, of course, carry the inference which the hon. and learned Gentleman suggested. It may be that one would be accepting a copy of a copy.

Amendment negatived.

Question proposed, That the clause stand part of the Bill.

Mr. Grimond

I am glad that we shall have a chance to consider this matter, because otherwise we shall drive a cart and horses through the construction of the law.

Is the Lord Advocate satisfied that there are adequate sanctions in the Bill to prevent frustration of its provisions? He knows that in certain strikes records have been removed and doors locked. If that were to happen with the intention of thwarting the Bill, I take it that that would amount to contempt of court. Perhaps the Lord Advocate will answer that point.

It being Ten o'clock, The CHAIRMAN left the Chair to report Progress and ask leave to sit again.

Committee report Progress.

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