§ 7.55 p.m.
§ Mr. Rifkind
I beg to move amendment No. 6, in page 1, line 17, leave out' one month after the expiry of the emergency period 'and insert' such period after the expiry of the emergency period which is equivalent to the length of the emergency period '.The purpose of clause 2 in its present form is to ensure that those members of the public who have seen the expiry of the triennium or any time-barred procedure because of this strike should have the provisions restored to them. One would wish to welcome clause 2 for that reason. It is nevertheless my suggestion that the clause in its present form is not wholly satisfactory. The desire should be to ensure that no member of the public loses any right that would otherwise be available to him as a consequence of this industrial action.
Under the clause as drafted, once the emergency period has been completed, there will be a maximum of one month during which time members of the public or potential pursuers may initiate legal action or other action not open to them during the emergency period. The period of one month is a fixed period. It does not relate to the length of time this strike, at the end of the day, is seen to last, whether two or three weeks, two or three months, or longer. The period of one month in this clause is inflexible. I accept that for those potential pursuers whose limitation on the right to bring an action had less than a month to run when this emergency period began will in no way be prejudiced by the clause in its present form.
I suggest that a different situation can easily arise if this strike extends to two or 1396 three months. Let us assume that the strike continues for the full three months that certain of the civil servants are threatening. Let us assume that a particular potential pursuer sees the expiry of the triennium a couple of days before the end of that three-month period. In other words, during the whole of the three months strike his right to initiate action will have been effectively prevented. He will have lost three months of the three years provided by Parliament. Yet in the terms of clause 2, in its present form, he will have only a month thereafter to remedy the problems that have arisen as a result of the industrial action.
That seems unfair. If this Bill has the purpose of remedying defects caused as a result of this strike, the least we should expect is that members of the public should have the same minimum time as was originally provided by Parliament. In the case of the triennium, for example, where Parliament has laid down that a person should initiate an action within three years of the cause of that action becoming apparent, the total length of time available to that person should remain three years. In my submission, the period after the expiry of the emergency period should be at least equivalent to the length of the emergency period itself.
I appreciate that the Minister or the Lord Advocate may suggest that if this amendment was accepted the effect would be that in certain circumstances members of the public would end up having longer than three years in which to initiate an action. If a person's full period, despite having lost only two or days after the beginning of the emergency period, despite having only lost two or three days in which to initiate an action, that person would be given a much longer period relating to the length of the emergency period. That is a justifiable complaint. It is one that may be made against the clause in its present form and against the amendment.
The clause in its present form allows a maximum of one month—indeed, a minimum of one month—irrespective of how short a period into the emergency period the expiry of the triennium takes place.
I suggest that the general objective should be to ensure that members of the public do not suffer any more than is necessary as a result of the industrial 1397 dispute. It seems reasonable to suggest that the period after the end of the emergency period in which action may be initiated or other action taken should be exactly equivalent to the length of the emergency. The implementation of that suggestion would be fair to the public and easy to operate. I hope that the Secretary of State will consider it in a favourable light.
§ Mr. Millan
The amendment is concerned with a matter of judgment. I have considered the issue carefully and I believe that one month is reasonable. The emergency period will not necessarily end on the day that the courts return to work. I do not expect it to end on the first day that the courts return to work. If there has been dislocation, it will take time for the courts to return to normal working. I do not wish to speculate how long that will take. Obviously it will depend to a considerable extent on the length of the dispute.
If the courts were to return to work rapidly following the Bill's Royal Assent, obviously the period of dislocation would have been too long but a good deal shorter than some of us, including the hon. Member for Edinburgh, Pentlands (Mr. Rifkind), fear. Therefore, the process of adjustment will take that much less time. If the strike were to continue and the courts were to be dislocated for a good deal longer, adjustment would take longer.
In fixing the emergency period, I shall take account of the matters to which the hon. Gentleman referred. For obvious reasons, I do not wish to speculate. It would be hypothetical to do so. I give the hon. Gentleman the assurance that I shall leave a reasonable time for the courts to return to normality. When the courts have returned to that state, the month will run from that time. There will be a minimum of one month.
§ Mr. Fairbairn
I am obliged to the Secretary of State for his response. I do not know what the volume of business will be of actions or criminal prosecutions that have to be initiated during the month. Will the right hon. Gentleman give the Committee an assurance that those who have withdrawn their services to the cause of justice will not be able to claim extra funds for clearing 1398 up a mass of work for which they are responsible?
§ Mr. Millan
I hope that that will not be the position. The hon. and learned Member for Kinross and West Perthshire (Mr. Fairbairn) may be aware that there are one or two other disputes in Scotland either current or recently settled. I have taken the view that, while in some circumstances those who return to work after a dispute necessarily work overtime and are paid for that work—I think especially of local authority workers—there can be no question of uncovenanted bonuses being paid to employees to clear up messes for which they are responsible. I have taken that view in a number of instances within my direct responsibility. I do not think that I can answer the hon. and learned Gentleman any more fairly than that. I do not like dealing with the hypothetical. The hon. and learned Gentleman knows my general view.
We are talking about an adjustable period. I shall try to adjust it to meet the circumstances of the time in fairness to everybody. The time limits will apply to not only pursuers but defenders. The Committee will appreciate that if the time limits are extended defenders may use the extensions to frustrate or defer action. That could in itself be an injustice.
It is difficult to achieve the right balance. These matters have been considered carefully. I do not say that one month is bound to be absolutely right, but there is a certain amount of flexibility as the clause stands. I hope that on the assurance that I have given on how I shall operate the clause the hon. Member for Pentlands will be willing to withdraw the amendment.
§ Mr. Rifkind
I am grateful to the Secretary of State for his helpful reply. I am glad to hear that the extension of the triennium will not be one month after the end of the emergency period but such part of the emergency period during which the courts are presumed to be functioning. That will ensure that the period is not restricted to one month and will be significantly greater. In those circumstances, I am only too happy to beg to ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.1399
§ Question proposed, That the clause stand part of the Bill.
§ Mr. Rifkind
I am sorry to interrupt for a second time the Committee's progress on clause 2. I ask the Lord Advocate or the Secretary of State what will happen if a potential pursuer's triennum has expired during the emergency period and the potential pursuer has died during that period.
Normally, as the Lord Advocate will know, if a pursuer initiates an action and dies his representatives are able to continue the action. It may be that but for the emergency period and the closure of the courts a potential pursuer, who might have been near to death, would have initiated action. I have in mind a case that has been brought to my attention. If because of the emergency period the action had not been initiated and the potential pursuer had died, it would not, on the face of the provisons in the clause, be possible for his representatives to raise a new action on behalf of the deceased.
I ask the Government to indicate whether that is a real problem. It is one that has been put to me by solicitors in Scotland. If it is a real problem, how is it accommodated within the terms of the Bill?
There is a matter of supreme importance that I raise briefly at this stage. It affects other clauses and it will be helpful if the Government make the position clear.
As the Secretary of State, the Lord Advocate and the Committee will know, threats have been made—not merely verbal threats but written threats—that if certain action is taken by certain people in the intervening period certain processes will be blacked. I have in mind, for example, a solicitor who has signeted a summons. That may apply in a large number of cases, civil or criminal.
What happens if an employee, backed no doubt as he would be by the threat that if action is taken against him action will be taken by all, takes action which defeats the defence of the rights that we are trying to defend, and thus makes it impossible for the action to be raised, the prosecution to be taken or the trial to be heard within the equitable period that the Secretary of State has set?
1400 The Government should make some response to that. I do not want to say anything that will irritate, but it is important that the Government respond. Let us remember that in the Bill every right that we try to preserve exacerbates another right. The preservation of the right of the person who is the pursuer in the civil cause is in conflict with the right of the person who is the defender. A person has a right to say when three years are over that no action has been raised and that he is free. That person suffers greatly from the prescription of time in terms of the memory of witnesses. In saving one right we are inevitably compromising another. It will be helpful if the Government clarify whether the action of someone who returns to work may prevent the preservation of the rights that we are trying to preserve.
§ The Lord Advocate
The hon. and learned Member for Kinross and West Perthshire (Mr. Fairbairn) has raised two important issues. I shall reply to the latter issue first, namely, the protection of rights.
The hon. and learned Gentleman is correct to say that in preserving a right of action for a pursuer we are perhaps inevitably creating potential prejudice for a defender. If we look at the picture broadly we see that the defender will be acquiring certain advantages, as in certain cases he will not require to defend an action as quickly as he might have done. There is a counterpart for this. It would not be right to suggest that this is a unilateral advantage to pursuers. It is of advantage and a disadvantage to both sides. That point is clearly important.
I hope that the kind of action mentioned by the hon. and learned Gentleman will not take place. I hope that there will be no question of blacking. However, the Secretary of State will have this matter very much in mind, in exercising his powers under clause 1, in deciding when the period of emergency shall come to an end. It is not necessary to go beyond that tonight.
I hope that I have made the position clear. The Government would take a serious view of and gravely deplore any action of the kind indicated by the hon. and learned Gentleman.
The hon. Member for Edinburgh, Pentlands (Mr. Rifkind) put a specific question about the problem of the limitation 1401 on action when someone dies. I inquired into this point. I am reasonably satisfied that the clause as drafted does not give rise to this difficulty. The problem is not a real one, as any successor in the right of action which the deceased will have had—his executor or dependant—would have the benefit of the additional time during the emergency period and the month thereafter. The hon. Gentleman will notice that the wording of clause 2 is not confined to the actual pursuer. The emphasis is on the action itself.
§ Question put and agreed to.
§ Clause 2 ordered to stand part of the Bill.