HC Deb 02 April 1982 vol 21 cc553-70 9.40 am
The Solicitor-General for Scotland (Mr. Peter Fraser)

I beg to move amendment No. 1, in page 1, line 8, leave out 'other than Part II'.

Mr. Deputy Speaker (Mr. Bernard Weatherill)

With this it will be convenient to take the following Government amendments: No. 3, Nos. 5 to 7 and Nos. 11 to 21.

The Solicitor-General for Scotland

As hon. Members know, the Bill seeks to introduce into the law of England and Wales and, as presently drafted, to Scotland, provisions relating to the supply of goods and services.

As I explained in Committee, the provisions of the Bill have rightly been warmly welcomed on this side of the border. Indeed, throughout its passage in the House, the provisions, in so far as they relate to England and Wales, have been strongly supported by the Government.

Part I, which relates to the supply of goods, stems from report No. 95 by the English Law Commission. It is interesting to find that on page 5, at paragraph 16, it says: Our two early reports in 1969 and 1975 were made jointly with the Scottish Law Commission, and the legislation which followed from those reports applies throughout the United Kingdom. There is at that stage and in that context a clear indication that where the law of contract is being altered, it is acknowledged and accepted that it is desirable that as far as possible it should apply on a United Kingdom basis.

The English Law Commission goes on to say: The present report and our draft Bill apply only to England and Wales. It is not a joint report with the Scottish Law Commission, because the development of the law relating to contracts for the supply of goods other than sale and hire-purchase has been different in England from the development in Scotland, so that a joint law reform exercise in this field would not have been appropriate. Moreover the minor statutory amendments we propose will only apply to England and Wales. Furthermore the consolidation of the sale of goods legislation which we have set in hand does not apply to Scotland either.

Mr. Donald Stewart (Western Isles)

I accept that point, which is a good one. As the Minister knows, I should not like to concertina the law systems, but as the Scottish Consumer Council evidently feels that benefits are being received by customers south of the border, can he give us any indication that the Government will look with sympathy on a similar Bill to bring the law in Scotland into line with it?

The Solicitor-General for Scotland

I am grateful to the right hon. Member. There are two points on which I shall elaborate, but I shall first attempt to put his mind at rest. The Government, in principle, are not opposed to the enactment of legislation regulating the supply of goods in Scotland. The difficulty, as I shall elaborate, stems from the view that when we are setting about law reform we should do so in a proper and orderly fashion. For reasons that the right hon. Member will particularly appreciate, we do not want to see the law of Scotland changed in any way simply on the basis of the views of the English Law Commission, which itself recognises all too well that it would be inappropriate to do so.

Can the right hon. Member imagine what would happen if the Scottish Law Commission had looked at a particular issue and said "We consider that the development of the law in England, as we are able to observe it, has taken a different course, but we propose this for Scotland"? Suppose that at that stage the United Kingdom Government were to say "It seems to be a pretty good piece of law reform for Scotland, so we shall extend it to the whole of the United Kingdom". The absurdity of the proposition becomes that much clearer when it is turned round the other way.

Dr. M. S. Miller (East Kilbride)

The Minister will no doubt be aware that the group calling itself the United Kingdom Inter-Professional Group has written a letter to me and to his Department in which it points out that the Law Commission in England and Wales did not consider one aspect of the matter that we are discussing today. It is stretching matters a bit too far for the Minister to indicate the feelings of the Law Commission in Scotland in relation to what the people in Scotland themselves feel about the matter. It is the people in Scotland who would benefit from the legislation. I do not think that the Minister can properly say that it would be wrong for the Law Commission in Scotland not to report on the matter before any enactment is made. Arguments could go on interminably about people who have not been consulted.

The Solicitor-General for Scotland

In view of the hon. Member's concern, I shall outline the position in some detail. We have well-laid-down procedures for setting about law reform. They are procedures which have been applied for a long time—ever since the Law Commissions were set up in 1965. As I shall hope to persuade the hon. Gentleman, in regard to the law of Scotland it would be better to continue to follow those procedures rather than simply act on the basis of a report from the English Law Commission.

Mr. John Fraser (Norwood)

Will the Minister acknowledge that the amendments passed in Committee were not Sassenach amendments, but were drafted by the Scottish Consumer Council? It would be wrong to suggest that the English are trying to foist something on to the Scots. The Scots want to foist something on to themselves. Any obstruction that they have met has come from the Solicitor-General for Scotland and the Scottish legal establishment.

9.45 am
The Solicitor-General for Scotland

I shall go through the amendments made in Committee in some detail and I hope that I shall be able to satisfy at least some hon. Members that what has been done is inappropriate in terms of either a codification or the development of the law in Scotland.

Part II, relating to Scotland, has not had the benefit of consideration by the Scottish Law Commission, and there has not even been a report based on the usual widespread consultation. As I have already said, the Government consider that it is desirable that law reform in Scotland should follow the same pattern as in England and Wales. In other words, it should follow on a careful consideration of the area of law under review. There should be separate consultation on the basis of a consultative memorandum suggesting various options, culminating the publication of a separate report, often with a draft Bill appended to it. That is precisely the form in which this piece of legislation has been introduced, following the English Law Commission's consideration of it.

That approach has worked well on each side of the border. In relation to the supply of goods, it has been scrupulously followed in England and Wales. Scottish opinion has not been given the same opportunity to express itself on the possible options. The Scottish Consumer Council—no doubt from the best of motives and, I accept, with some support from other consumer organisations—has sought to short-circuit the process and secure the application to Scotland of what is essentially part I, which applies to England.

The Sensible approach that I have outlined has served the cause of law reform very well on both sides of the border for more than 15 years. I hope that the passage of time has not dimmed the memory of the welcome that was given when both Law Commissions were set up in 1965. I hope that there will be no swing away from a thorough, analytic approach because of impatience or a desire for instant law reform. Before 1965, as I am sure hon. Members will recollect, the complaint often was that, the approach to law reform, was far too haphazard. The Government of the day set up the machinery to remedy the position, but it now appears that the supporters of part II, in its application to Scotland, want to disregard that careful and methodical review of law in favour of a more off-the-cuff approach to legislation. I find this particularly surprising in view of the fact that the Scottish Consumer Council has this week put out a press release in which it makes a number of assertions, with which I shall have to deal.

The council claims that the existing law is scrappy and uncertain and that it needs to be brought together and clarified, to which I respond "Precisely". For that reason, I should have thought that anyone concerned about the proper development of the private law of Scotland would want to see consultation within Scotland, proper examination by an expert team in the Scottish Law Commission, proposals put forward and legislation eventually brought forward. If the idea is that we should abandon that approach, it is a trend that I should personally regret. I hope that the lessons of the past have been learnt and that steady progress is much to be preferred to well-intentioned lurches forward.

I wish to deal with the role and duties of the Scottish Law Commission, which remains today much as it was in 1965 under its first chairman Lord Kilbrandon. The commission was to take up and keep under review all the law with which it was concerned, with a view to its systematic development and reform. I know of no pressure to modify that duty. Indeed, the justification for caution was appreciated as clearly in the commission's first annual report as it is by the Government today.

Paragraph 12 of the first annual report observes with what seems to me a striking prescience: With regard to `elimination of anomalies', "— which is precisely the type of point to which the Scottish Consumer Council has addressed itsef— our intention is to try to make recommendations about these as they come to our notice, always bearing in mind that our reform of the law must be systematic; there may be cases in which particular anomalies are better left untouched until the whole branch of the law in which they arise can be examined. There is always a danger that the removal of one anomaly may create another. That is precisely why the Government do not wish to be rushed into hasty legislation on the supply of good; in the law of Scotland. It is worth recording that, generally, support for the commission's unspectacular approach to law reform exists across the entire spectrum of legal opinion in Scotland. Indeed, in the January edition of the Scottish Legal Action Group's bulletin—I am sure that the hon. Member for East Kilbride (Dr. Miller) recognises that this is scarcely a bulletin of the legal establishment in Scotland—there appeared an editorial comment, prompted in part by the publication recently of the sixteenth annual report of the Scottish Law Commission.

The editorial comment was: The shooting-from-the-hip style of law-making in the courts contrasts with the Scottish Law Commission's methods; ascertaining the existing law; identifying its defects or limitations; sometimes arranging social research into its operation; discussing possible solutions and testing them on public opinion; and finally making a report to government recommending changes and suggesting how they should be brought about. It is not the elegant, porticoed Parliament House, but that grim grey building in the Causewayside, so often mistaken for a social security office, that is now the real epicentre of change in Scots Law. I do not seek to enter into a discussion about whether their Lordships in the Scottish courts indulge in a style of approach that might be described as shooting from the hip, but the more general principle articulated in the editorial stating that the Scottish Law Commission has properly become the epicentre of law reform is, I suggest, regarded as being the view held across the whole spectrum of legal opinion in Scotland.

Dr. M. S. Miller

The hon. Gentleman is indicating, or even advocating, something that is anathema to the House. We in this House make the laws. Any law reform society, Scottish or otherwise, or any body of experts, such as the British Medical Association, can surely bring forward only recommendations and ideas. We make the laws. We have ideas of our own. There is no reason why we should wait until every "t" is stroked and every "i" is dotted by an organisation that would love to make laws. We should not allow it to do so.

The Solicitor-General for Scotland

I am well aware of the constitutional position of the House with regard to legislation. I recognise that the final and vital stage before anything can happen, not just in Scotland but in any part of the United Kingdom, is that legislation is required to pass through the House. Prior to 1965 there was considerable criticism that we were not approaching law reform in a proper, well-calculated and properly researched manner. When, in 1965, the Law Commissions were set up, they were entrusted with the duties that I have outlined. Their responsibility ends with the completion of a report. Often attached to the report is a draft Bill. The House is, of course, under no obligation to accept all or, indeed, any part of the report or the draft Bill.

If we are trying to get back into a rational mould changes, modifications and reform of the private laws of our different systems, it seems to me that we should have considerable regard to what is done by the Law Commissions on both sides of the border. I do not think that it can be disputed that there has not been the necessary consideration and consultation in depth in the case of this Scottish provision. While there might rightly be considerable sympathy with the principle of the proposed changes, the effect of the provisions in the Bill is unclear in parts and the detail of the drafting, to which I shall come, is in part deficient.

This is a complex area of law. It is not good enough to legislate on the basis that the change might be of some good, when there is a real risk that we might make bad law by acting precipitately. Apparently the primary aim of part II is to codify the existing common law for Scotland on an interim basis. It is not clear that this represents any real advance in terms of the legal rights of the consumer. I return once again to the press release put out this week by the Scottish Consumer Council. It condemns strongly the action of the Government in bringing forward these amendments to disapply parts II and III to Scotland. It goes on to say that Scottish consumers will not be afforded the same protection as their counterparts in England, Wales and Northern Ireland. I am somewhat astonished by that assertion. As I understand part I and the report of the English Law Commission—I stand to be corrected by English lawyers present if I have understood it wrongly—what is not sought is to bring about any substantial or radical change in the existing law. It is essentially a codifying measure of the existing common law in England.

Mr. John Fraser

Will the hon. Gentleman recognise that clause 22 of part II is a necessary innovation in the law? In future, if passed in Scotland, as in England, it would not be possible to exclude the implied covenants to the consumer in consumer sales. That considerable advance in the law would be lost if part II disappeared.

10 am

The Solicitor-General for Scotland

Yes, but the main reason for applying part II on the same basis as part I is applied to England is the claim that what appears in part H is in a convenient and precise form but that somewhat bland assertion cannot properly be made. If part II were applied to Scotland, it might increase uncertainty in practice if the detail of the codification were deficient in any way. The close consideration needed to establish whether this is the case has not been possible. However, the Scottish Law Commission is embarking on a review of this area of the law, and in all the circumstances the Government have concluded that it would not be appropriate to legislate for Scotland in this Bill.

I take this opportunity to put the record straight on a number of points that were raised in Committee. It was claimed that there had been fairly thorough consultations with both the Scottish Law Commission and the Scottish Office. It was alleged that the commission was dragging its feet and that no Scottish bodies were opposed to the Bill. Although the Scottish Consumer Council is to be commended for the care that it has taken to keep the Scottish Office informed of its thinking and intentions about the Bill, only one meeting has taken place between them, and that was last month—some weeks after the Committee proceedings. Officials of the Scottish Home and Health Department met representatives of the Scottish Consumer Council primarily to hear why it considered that the Bill should apply to Scotland.

A meeting took place between the staff of the Scottish Law Commission and Scottish Consumer Council representatives at an earlier stage before any Scottish provisions had been produced. The council asked for consultations with the Scottish Law Commission, with the aim of enlisting the commission's support for what is now in part II. I understand that before the meeting took place, and at all times during the meeting, the commission made it very clear that it could not offer the support that was sought. As I mentioned, at that time no Scottish clauses were available for discussion. The staff members who were present at the meeting said that they were prepared, solely as individuals, to discuss this area of law, without purporting to represent the commission's views.

Let me repeat the commission's view. It is that, without the necessary detailed consideration, it is in no position either to support or oppose the inclusion of part II as a matter of policy. However, the commission indicated that legislation for Scotland at the present time might not be opportune.

Mr. Robert Maclennan (Caithness and Sutherland)

Will the Minister say where and when such an indication was given by the Scottish Law Commission?

The Solicitor-General for Scotland

I have had discussions with the Scottish Law Commission on this matter. It has given no indication to the Scottish Consumer Council that it supports it. In part of the programme that it is undertaking at present, it has agreed to include consideration of the matter in part II as part of its researches.

Mr. Maclennan

That is not what the Solicitor-General for Scotland said. He said that the Scottish Law Commission considered that it would be inopportune to bring forward the measure. Can he substantiate that statement?

The Solicitor-General for Scotland

I have already said that last Friday I saw the chairman of the Scottish Law Commission and discussed the matter with him. He made the matter clear on that occasion.

Mr. Peter Viggers (Gosport)

I support my hon. Friend's stand, because I believe that it is wrong to tinker with the law without considering carefully all the implications. However, will he tell us the time scale during which the Scottish Law Commission will report so as to bring Scottish law into line with that of the rest of the United Kingdom?

The Solicitor-General for Scotland

I thank my hon. Friend. There are two matters that I want to explain to the House. One is the timetable and the type of research and report that would be prepared by the Scottish Law Commission. I also want to demonstrate, by reference to other reports of the Scottish Law Commission, that some of the anxieties that have been expressed that there would be no legislation in this area this side of 1990 are misplaced. I do not want to be nationalistic or parochial, but the performance of the Scottish Law Commission and its record in introducing its reports and having them embodied in legislation is better than that of the English Law Commission. I hope that the English Law Commission will not take what I say amiss. To put the matter in context, may I say that there are not vast numbers of reports from the Scottish Law Commission gathering dust on shelves and awaiting Government action?

Dr. M. S. Miller

I accept what the Solicitor-General for Scotland says. Will he give an undertaking that when he receives the report from the Scottish Law Commission, assuming that it is favourable, as I am sure it will be, the Government will initiate legislation that will apply to Scotland?

The Solicitor-General for Scotland

The hon. Gentleman is being somewhat churlish. It is clear that the Government have given their support to part I. As the hon. Gentleman will acknowledge, there has been no attempt by the Government to obstruct part I as a matter of principle, in so far as it relates to England, Wales and Northern Ireland. The point of objection is not that the Government feel that consumers in Scotland should be denied the benefits of legislation or that they should be second-class citizens; rather, it stems from the anxiety that since 1965 we have successfully established a proper method of approaching law reform in the United Kingdom.

Mr. Frederick Willey (Sunderland, North)

I agree that we have had every assistance from the Department, but there is one thing that I do not understand. We get a report from the English Law Commission, and no action whatever is taken in Scotland. I should have thought that there would be immediate action once the English Law Commission had made its report.

The Solicitor-General for Scotland

I thank the right hon. Gentleman for making clear the Government's attitude to the Bill that he has introduced. Let me go back to report No. 95 of the English Law Commission and refer him to paragraph 16. Up to that point there had been two reports, in 1969 and 1975. They were made jointly with the Scottish Law Commission, and the legislation that followed those reports applied throughout the United Kingdom. It was seen that Scottish law in this connection had developed differently from English law. In those circumstances, both Law Commissions agreed that it was inappropriate to attempt to continue with that joint exercise.

The English Law Commission went ahead. The Scottish Law Commission has not yet done so, but is already working on the matter. It will be appreciated that we have two separate legal systems. The Scottish Law Commission would find it a quite unacceptable restraint on its activities if it were slavishly bound to follow the priorities that were asserted by the English Law Commission. Scottish Members will know that the Scottish Law Commission is engaged in a truly magnum opus relating to the reform of the law of diligence. That reform involves a considerable amount of research and investigation. The hon. Member for East Kilbride will know that real social problems are involved in reforming that difficult area of law. I am not prepared to see the issue that we are considering today being given greater priority than is being attached by the Scottish Law Commission to the law of diligence.

Dr. M. S. Miller

I accept that, and I think the Minister for his indulgence to me, but surely he agrees that this is a ridiculous way to do things. I cannot imagine that the Scottish Law Commission would object in principle to what the English Law Commission decides in this respect. As the Solicitor-General for Scotland said that there are differences in Scotland and that the problems in Scotland are perhaps different from those in England, would it not be intelligent and reasonable—it is not a matter of prestige; surely they are brothers under the skin—-for the Scottish Law Commission to look at what is proposed by the English Law Commission?

Surely the Scottish Law Commission could say that it had no objections to the proposal, with the necessary changes for Scotland. What is wrong with that procedure?

The Solicitor-General for Scotland

If I make some progress I shall be able to point out the exact areas of concern to the Scottish Law Commission and the issues on which it will take the views of those interested in this area of Scottish law reform.

It is unfair to accuse the commission of dragging its feet because it cannot produce an instant report or give instant advice. The range of work being undertaken by the commission is formidable, as can be seen from appendix II to the sixteenth annual report, which was published on 9 December 1981. It records that 66 full reports—including 15 annual reports and 52 consultative memoranda—have been published.

As I explained in Committee, the Scottish Law Commission takes the general position that the law on implied terms and contracts for the supply of goods should correspond as far as possible with the law of implied terms and contracts for the sale of goods. It is currently engaged, again in co-operation with the English Law Commission, on a review of buyer's remedies and related implied terms in contracts for the sale of goods. Work on examining the remedies and implied terms in contracts for the supply of goods has now begun and a consultative memorandum is expected to be completed during the year. Indeed. I understand that its drafting is already well in hand.

The Scottish Law Commission would like to examine certain aspects of the position in Scotland in detail. It is unlikely to be possible to apply the contents of part I to part II simply by means of a few drafting amendments. I expect that the commission will examine in particular the position on title and quiet possession, description and sample, on which there appears to be little difficulty at present. Nevertheless, the Scottish Law Commission would like to consider that. It will also wish to consider what ambiguities exist in common law and the extent to which the trade-in of old cars or domestic equipment should be governed by the Sale of Goods Act, together with the possible need to construe a second collateral contract in such circumstances.

If the hon. Member for East Kilbride has been in touch with the Scottish Consumer Council, he will be aware of a recent case at Hamilton sheriff court. It concerned the position of cars being traded in. Initially there appeared to be some obscurity, but the learned sheriff's decision was that the Sale of Goods Act applied. One of the Scottish Consumer Council's anxieties was that the Sale of Goods Act did not apply in those circumstances for that common type of transaction. Such transactions take place throughout the United Kingdom when a car is traded in for a secondhand car, or possibly for a new car.

There might be a significant point of difference between the respective legal systems on the two sides of the border. The Scottish Law Commission would like to look at the lack of any distinct type of contract in Scots law for work and materials.

The next issue of concern to the commission would be the difficult matter of latent defects. It would wish to consider the obligations that are appropriate to a private supplier of goods rather than to a person who supplies goods in the course of business. The Scottish Consumer Council probably understands that the Scottish Law Commission will want to consider to what extent durability should be an aspect of the condition relating to quality and fitness.

I am not suggesting that formidable or intractable difficulties will necessarily arise from that consideration, but I suspect that that issue of durability could present problems, particularly in relation to hire. However, those aspects would need to be considered by the commission in its review of that area of the law before it could express an opinion on the statutory changes that might be made.

It is highly desirable that that consideration should take place and that it should be the subject of wide consultation within Scotland. It is not possible or proper for me to attempt to predict whether the Scottish Law Commission's report, which will follow the consultaion, will be wider than part II, or to predict when it will be completed. As I said in Committee, if the consultative memorandum comes out later this year, I do not expect that the report will be published before next year.

Contrary to the impression that some hon. Members seem to have gained, the records of successive Governments on implementing Scottish Law Commission reports is good. The proof is once again to be found in the latest annual report of the Scottish Law Commission, in appendix III, which sets out the statutory provisions that have been prompted by the various Scottish Law Commission reports. Indeed, the position is even better than would appear from the appendix, reflecting developments after it went to print in the autumn.

10.15 am

Report No. 60 of the Scottish Law Commission, "Occupancy Rights in the Matrimonial Home and Domestic Violence" was first made available on 17 July 1980. A Bill was introduced in the other place on that matter on 3 February 1981. Little more than six months elapsed before a vital piece of social legislation was introduced. That legislation on matrimonial homes and domestic violence received the Royal Assent in November 1981, together with the consolidation of the Trustee Savings Banks Acts.

Reports Nos. 51 and 64 on the law of damages—which first saw the light of day in July 1981—will largely be implemented in the Administration of Justice Bill, which is currently before the other place. Report No. 57, on lost and abandoned property, finds expression in the code for civic government in Scotland, which will shortly come before the House.

That means that legislation is outstanding on only two of the Scottish Law Commission's reports, out of a total of 66, and on one of those reports—liability for defective products—legislation would be premature, because an EEC directive is currently the subject of negotiations in Brussels. I suspect that several hon. Members are anxious to get into that area of law, with its European implications.

Therefore, there is no need for gloomy mutterings and no need to worry that if the Scottish Law Commission carries on with the consultative memorandum and takes advice and evidence from all the bodies concerned, including the Scottish Consumer Council, a dull but worthy report will be produced to gather dust on a shelf in a dry office somewhere in Edinburgh. The record of those 66 reports is rather more impressive than I realised before I tried to put the subject matter together.

The Government greatly value the work of the Scottish Law Commission, but recognise that the fruits of its labours should find expression in the legislative programme on a regular and more frequent basis. I believe that it was the hon. Member for East Kilbride who said, in Committee, that no body of opinion in Scotland took the view that the Bill should not apply to Scotland. There has been little time for such bodies to consider the matter in depth. However, the position has become clearer. Certainly the Citizens Advice Bureau movement and the Scottish Consumer Council strongly support the extension of the Bill to Scotland. They have made their views clear to hon. Members on both sides of the House. I understand that, generally, the Law Society of Scotland has said that it is unhappy that legislation should proceed in an ad hoc and premature manner without due consideration.

I have a letter from the president of the Law Society of Scotland. That body has not yet had an opportunity to express an official view of the position, but Professor Love stated: On reading the Hansard report of the Second Reading, one is struck by the fact that the proposers and supporters of the Bill repeatedly emphasised that the Bill was intended to be declaratory of the existing law. My comment on that is that if they were intending to declare the existing law, it is a pity that they did not see fit to declare it with at least reasonable accuracy. As you know, there is a well established and quite short formula laying down the standard of care for members of trades"—— he is now going on to part III—— and professions designed in effect to clarify the point which the words 'reasonable care' themselves leave vague and uncertain. I do not see how a court can know whether our common law rules in this area and, for example, in the area of medical services are or are not to remain in force. This Bill is in my opinion no way to legislate for a common law system which endeavours, not always successfully, to keep its law principled, coherent and relatively simple. I accept that the Scottish Consumer Council has been vocal in its support for the Bill and that the principle that it wishes to have established in Scotland is not only proper, but one that I warmly support. However, the Government take exception to the manner in which it is sought to introduce the legislation in Scotland. I said in Committee that the point of principle about introducing a codification of the law on the supply of goods into Scotland is not baulked at by the Government, but we do not accept the proposed method of introduction without proper consultation and consideration in Committee.

The drafting of part II bears the mark of hasty preparation and an undue reliance on the terms of part I. I should emphasise that the Government do not object to the aims of part II in so far as they are designed to help the consumer. However, we are not satisfied that it would do that in practice. Its drafting is unsatisfactory and its effect uncertain and it cannot be either readily or timeously remedied. Its enactment would undermine the systematic procedures of law reform in Scotland in a way that would set a very unfortunate precedent. Therefore, I urge the House to accept that part II should be taken out of the Bill, especially as the necessary full and separate consultation in Scotland to produce appropriate recommendations for change in Scottish law are now in hand.

As hon. Members will be aware, part III is also extended to Scotland. In the way that the amendments have been grouped, it would be appropriate for me now to make clear to the House the Government's views about the application of part III to Scotland. The arguments against applying part II to Scotland apply with even greater force to part III. The Scottish Law Commission drew attention to certain deficiencies and inadequacies, such as the proposal to derogate by subordinate legislation from a statutory enactment of common law provisions and the danger of undesirable divergences between the laws of contract and delict, which would be described as "tort" on this side of the border. Another deficiency is the uncertainty of the proposal to codify or give priority to existing common law, which does not contribute or clarify.

My initial impression is that there might be difficulties if parallel claims under both delict and contract are competent in relation to the same act of providing a service. If part III is enacted, a supplier of services could be liable either contractually or delictually. A simple example might be where a garage undertakes to check the brakes of a private individual's car but does so inadequately, fails to realise that they need correction or remedy, and as a consequence the car is involved in an accident. If any personal injury is sustained, the garage would be liable delictually for damages and the obligation would have been to take "reasonable care". However, if the car is damaged, the garage would be caught by part III and would be required to exercise something described as "reasonable skill" in checking the brakes.

It would be wholly presumptuous of me to make remarks about the law of England and Wales in this respect, but the words "reasonable skill" are not a term of art in Scots law and, far from bringing greater certainty to the consumer, could cause greater uncertainty. It would mean that the courts of Scotland, potentially up to the House of Lords, would have to determine whether the expression used in the Bill—"reasonable skill"—as opposed to "reasonable care" was either otiose and meant the same thing or introduced a new concept of greater responsibility than is incumbent on such suppliers of services under Scottish common law.

A further complication that would need closer consideration is the position that could arise if a third party were injured in the accident. A different test could be applied to the driver, who has a contractual relationship with the garage, and the luckless third party, who would have grounds for an action in delict, even though the cause of the accident—faulty brakes—was the same in both cases.

The Statutory duty set out in part III could have important implications for the law of delict in Scotland, not just contractual law. Those must be fully explored before legislation is contemplated for Scotland.

Although I am not in a position to opine whether part III provides an adequate statement of the common law in England and Wales, I have no confidence that it does so for Scotland, and I fear that at least in some instances it could make the consumer worse rather than better off. I appreciate the arguments for greater protection of the consumer, but, as informed legal opinion in Scotland is against the inclusion of the provisions in this form, it would be quite irresponsible of me to suggest to the House that we should apply the Bill to Scotland, because some parts might turn out to be not too bad. I can see no advantage to Scotland or Scottish consumers in proceeding in that way, especially as it is far from certain that the practical effect would be to increase protection for the consumer.

In an eloquent speech to the House, the late Sir Ronald Bell examined the proposition that part III in some way parallelled that great piece of law reform in the last century, the Sale of Goods Act 1893. The assertion seemed to be that if one considered what was being done in this Bill one saw exactly the same effect as that brought about by the previous Act. Sir Ronald Bell's point was that if we examine the 1893 Act we see that we have broken the connection with the common law. Although that is not absolutely true in every respect, generally speaking one need not look back beyond 1893 in to case law to see what the common law has to say. It was neatly, precisely and clearly codified in a relatively short and simple Act.

Clause 28(3) states: Nothing in this Part of this Act prejudices … any rule of law which imposes on a supplier a duty stricter than that imposed by section 25 or 26 above". This problem relates to Scotland. The draftsman did not say that one must never look back to consider what the common law stated on the imposition of a duty of care or responsibility.

10.30 am

The Scottish Consumer Council, as I understood the situation, wanted consumers who had problems over the supply of services—who might visit a citizen's advice bureau, lawyer or anyone else—to ask it what responsibility or duty was incumbent on the person supplying the services—whether that be a plumber, hairdresser or brain surgeon. The council mistakenly believed that if part III were to be applied in Scotland it would be possible, in little more that a page, to identify the precise position for the consumer.

The hon. Member of East Kilbride is a medical man. If the supply of services were medical, the complaints were medical and a person felt that he had suffered damage as a result of the supply of those medical services, he would visit the Scottish Consumer Council, a citizen's advice bureau or his lawyer. The person purporting to advise him could not simply tell him to consider part III. he would be bound to consider the matter more carefully before telling the person his exact position. He would have to check back through common law to ensure that there was no greater or higher duty encumbent on the supplier of services.

I particularly chose the medical services, because I am sure that the hon. Member for East Kilbride, being a practising medical man, will be aware that there have been difficulties and, perhaps, obscurity in dealing with this matter. There appeared to be a higher duty of care incumbent on a medical man than was generally the case.

In those circumstances, I could not say, and the Scottish Consumer Council would positively be misleading people in Scotland if it were to assert, that part III clarifies and codifies the law into such a form that it will be that much easier for consumers to understand their rights and secure justice in the courts. The Scottish Consumer Council sought to have part III included in the Bill. Reading between the lines, I felt that it was less concerned about seeing part HI extended to Scotland than part II. I received a letter from it at the same time as a copy of its press release. That one and a half page letter made no reference to part III.

The application of part III to Scotland makes no more, and perhaps less, sense than the application of part II. I have made no attempt to speak about the law of England. I invite hon. Members to accept that what is being done in applying part II and III to Scotland is not the proper way to approach orderly law reform in Scotland. There are also many additional amendments relating to transitional provisions which would apply if the whole Bill applied to the United Kingdom. No particular points arise out of them. If parts II and III are not applied to Scotland, they are consequential and necessary amendments.

Dr. M. S. Miller

I shall offer the hon. Gentleman what might not be an entirely exact and complete analogy on codification. As he referred to the medical profession, I shall use that example. There is no body of general practitioners or family doctors, as we know them, in the United States. That also applies to a great extent on the Continent. Someone who feels ill must decide for himself what is wrong. He may visit the wrong person. He may see an ear, nose and throat specialist when he should visit someone who deals with heart problems.

We have codified this aspect to some extent. A person who feels ill in Britain can go to a general practitioner. That does not tell him what is wrong, because the next stage, carried out by the general practitioner, is to decide which system is wrong. I hope that the Minister accepts the way my mind is working. Of course, that is not meant to be an exact diagnosis or clarification. However, it is a necessary step on the road towards that.

The Solicitor-General for Scotland

I understand the way in which the hon. Gentleman's mind is moving. Part III seeks to provide the general principles and established duties incumbent on suppliers of services, without definition, to the areas in which they supply them. That could be cutting the hon. Gentleman's hair or operating in the most delicate circumstances on his brain. That would be intensely difficult and delicate surgery. Part III purports to say that there is a general principle and that there are a number of conditions to be implied in the supply of those services, regardless of type.

The draftsman clearly recognised that there would be difficulty, and therefore did not have the complete confidence to say that this was necessarily the final or best way to approach the matter. If there are circumstances in which a higher duty is incumbent on a supplier of services, nothing in the Bill will derogate from that. As I understand it—the Scottish Consumer Council made this point—particular services might be excluded from the ambit of this part of the Bill. Again, that demonstrates less than complete confidence that what is sought to be achieved in part III—not part I—has reached a final stage. It is approximating, in a codification fashion, that great Act of 1893.

I cannot elaborate more on these provisions. I invite the House to accept not only the amendment that I have moved, but the others, which disapply the Bill to Scotland.

Mr. John Fraser

Earlier this week the Scottish courts decided that, no matter what the views of the Solicitor-General for Scotland, there is a right to bring private prosecutions in Scotland. In the same way it was decided in Committee that Parliament, the legislature, no matter what the views of the Solicitor-General, had a right to legislate notwithstanding the advice given to the Committee. Parliament has to be careful when it gives up its right to perform its main function, which is to pass laws. It is an extraordinary development that Parliament, the legislature, which came into being to control the Executive, has for many years now been controlled by the Executive rather than controlling it. We have now arrived at the next stage. It seems that the way in which Parliament goes about its business is to be controlled in some senses by the Law Commissions, by bodies that go beyond the Executive. There is to be extra-parliamentary and unelected control upon the pace and the manner in which we legislate.

That is the principle that has been put forward by the Solicitor-General. I do not disagree entirely with him. If legislation is introduced higgledy-piggledy, there is a risk that the law will be made worse and not better. I do not disagree with the hon. Gentleman's judgment that we must be careful in these matters. I accept that, if it is possible to legislate by reference to a Law Commission's report, it may be better to do so and to get the law right. I do not pretend to be any expert on the law of Scotland. However, in respect of part III, the House of Commons has asserted its right to legislate on implied terms for the supply of services notwithstanding the absence of a report from the Scottish Law Commission. We asserted our right as legislators to legislate.

I do not complain about the argument advanced by the Solicitor-General for Scotland that we must be careful in these matters. I do not object to the proposition that it might be better to have a report from the Scottish Law Commission on the matters dealt with in parts II and III if there is likely to be a difference between what is put in the Bill and what would amount to a proper codification of the law of Scotland. However, I am disappointed by the hon. Gentleman's lack of commitment and initiative. The hon. Gentleman must be more than a postboy. He is not a messenger boy between Edinburgh and Westminster. It is not good enough to come to this place with a message from the Scottish Law Society or to convey to us the views of the Scottish Law Commission. We were looking for a greater degree of commitment to change from the hon. Gentleman and a personal view of the change that is to take place.

The hon. Gentleman has said that he has no objection in principle to changes taking place. We were surely entitled to look for a greater degree of political commitment to the codification of the law on the supply of goods and, secondly, for the hon. Gentleman to express a Government commitment on the principles set out in clause 22 as it applies to Scotland, that in the supply of goods to consumers it will not be possible to contract out of the implied covenance of title, for example. Thirdly, because the hon. Gentleman is urging the House to remove from the Bill a provision inserted in Committee, we are entitled to ask whether the Government will commit themselves to bringing forward legislation once the Scottish Law Commission has reported.

This is not an especially controversial area of the law and I understand that it would be possible to give a commitment that once the Scottish Law Commission reports a Bill could be prepared by the Government. I understand that such a Bill could be given a Second Reading by the Scottish Grand Committee. It could have a fairly expeditious passage from the report of the Scottish Law Commission to the statute book. In return for the House of Commons giving up part II, I would expect that degree of commitment from the Solicitor-General. In those circumstances, I would expect him to do everything in his power, once there is a report from the commission, to put the recommendation into law. There is a long and justified complaint by Scottish consumers that the law that protects consumers in Scotland lags behind consumer law in England and Wales.

The Solicitor-General for Scotland

Will the hon. Gentleman be more specific?

10.45 am
Mr. Fraser

That is so in respect of small claims procedures in the courts.

The Solicitor-General for Scotland

The hon. Gentleman is expanding his argument and seems to be asserting that there are specified areas of consumer law in Scotland about which there are identifiable complaints that require to be remedied as a matter of urgency. If that is what he is saying, I shall be grateful if he spells them out. The one particular example that was given to me by the Scottish Consumer Council related to the part exchange of one used vehicle for another one or a new car. The recent decision to which it makes reference itself explains in part of the judgment that that situation is in any event caught in Scotland by the Sale of Goods Act 1979. If the hon. Gentleman is saying that there is a crying need to remedy certain defects in Scottish consumer law, I ask him to specify them.

Mr. Fraser

I had in mind, first, bringing the law into line on unfair contract terms, which was eventually done in the 1977 Act. Indeed, I was responsible for helping the Bill on its way through the House of Commons. It was necessary to apply some pressure in Scotland to ensure that the Scottish drafting took place. There was a degree of difficulty with the Scottish legal establishment in getting that into law. It was necessary to use some muscle. The hon. Member for Caithness and Sutherland (Mr. Maclennan) was helpful in that instance. It was necessary to have political commitment to ensure that the 1977 measure was enacted. I am not talking especially about implied terms in the sale of cars. However, there has been a long-standing complaint by the Scottish Consumer Council about the legal procedures in Scotland that are available to consumers.

I understand the hon. Gentleman's argument that if we are to reform the law it is necessary to get it right. I accept his judgment that part II may not be right. However, I ask for a degree of commitment on the part of the Government that when the draft is in a correct form the Government will take the initiative to pass it into law. If the hon. Gentleman says "Yes" to that commitment, we shall be all the happier in the way in which we allow him to take his amendment through the House.

The Solicitor-General for Scotland

The Scottish Law Commission is already preparing a memorandum as part of the consultative procedure on which it has embarked. It follows the standard form that is observed by both Law Commissions. It will be a wider consultative memorandum than that which applied to the report which gave rise to the Bill.

There is no hostility to what is contained in part I. At this stage I cannot anticipate what the Scottish Law Commission will do, but the English Law Commission has said, in effect, in its report "We shall codify the existing law" with the one addition to which the hon. Gentleman has referred. I think that he will recognise that there is a real possibility that the Scottish Law Commission will say "Yes, we shall go along that route, but while we are at it we shall consider other matters". The hon. Gentleman will recognise as a lawyer that extremely difficult issues arise in dealing with latent defects, for example. If the Scottish Law Commission brings forward law reform proposals in that area of the law, I have no doubt that the hon. Gentleman will be extremely interested in how the commission deals with them with a view to introducing similar provisions in England and Wales. Another difficult area of the law is durability.

I understand that the commission is intensely interested in engaging in a proper examination of these issues. In these circumstances, what emerges from the commission could be a far more significant and radical reform of consumer law than is included in the Bill. Potentially there is an opportunity for better consumer legislation for Scotland than is contained in part II of the Bill.

Mr. John Fraser

May I conclude my speech with a question? If the Scottish Law Commission comes out with a more significant, radical and welcome proposal for the reform of the law, will it have the endorsement and support of the Government?

Mr. Maclennan

The Solicitor-General for Scotland devoted almost an hour of the time of the House not to an examination of the merits of part II, which one would have been interested to hear, not to an examination of any defects which he or the Government consider are in the Bill, but to stating a case against legislating on consumer matters in Scotland in the absence of a report from the Scottish Law Commission. He ennuciated a novel and unacceptable constitutional principle. It will not command support in Scotland. I doubt whether it will command support in legal circles there.

The Solicitor-General for Scotland

As an English lawyer, will the hon. Gentleman tell the House which Scottish lawyers and Scottish legal groups he has consulted?

Mr. Maclennan

That is an extremely stupid argumentum ad hominem. I have consulted a number of Scottish lawyers. If the Solicitor-General were riot so personally discourteous, he might realise that a former Minister with responsibility for consumer affairs in Scotland would have done that. The hon. Gentleman cannot hope to escape from the consequences of the Government's continuing unwillingness to move to reform consumer law in Scotland by making a personal attack on me.

The proposition that one can move to reform consumer law only if there is a report from the Scottish Law Commission does not bear examination. The law is complex. Undoubtedly there are many changes that could be made to improve it. If the Bill were described purely as a codification measure, it would be desirable to have a report from the Scottish Law Commission. However, it is not. The Bill is specifically described as a Bill to amend the law.

When the Scottish Law Commission was established in 1965 it was intended to assist in the reform of the law, not to impede its development. I do not think that the Scottish Law Commission would consider that it was appropriate for it to arrogate to itself the powers—which the Solicitor-General has suggested it has—to stand in the way of what the House regards as a desirable improvement in the law.

In an intervention I asked the Solicitor-General to say what evidence there was that the Scottish Law Commission regarded it as inopportune to legislate in this area. He prayed in aid some private consultation that he had had. I cannot regard that——

The Solicitor-General for Scotland

Will the hon. Gentleman give way?

Mr. Maclennan

Not in the middle of a sentence. The hon. Gentleman must contain himself. He has had an hour in which to develop his arguments and he has already intervened during the first two minutes of my speech. That is enough.

I have the highest regard for the work of the Scottish Law Commission. I know that it is burdened with a great deal of important work. I know of the work that it is doing on the law of diligence. However, I do not think the Scottish Law Commission would imagine that the House would not seek to introduce legislative reforms in important areas until it had concluded that work. I cannot think that that would be right constitutionally or that in any sense the work of Parliament with regard to the law of Scotland can be dictated in time or in order of priority by the proceedings of the Scottish Law Commission. The Solicitor-General insults the House by even implying that such is the case.

It was notable that in his remarks on the substance of the Bill the Solicitor-General attacked only part III. I have no reason to doubt that what he said was well founded. I am prepared to accept his legal advice as a Scottish Law Officer. What was notably absent was any attempt to attack in substance the provisions of part II.

The Solicitor-General for Scotland

I was not suggesting that the Scottish Law Commission could in any way arrogate to itself the responsibilites of the House for legislation. I was attempting to set out the procedures that had been followed by successive Governments in dealing with reports of the English Law Commission and those of the Scottish Law Commission. I accept that if the House seeks to legislate on anything it can do so. I was attempting to convey—unsuccessfully, it seems—that I could not see circumstances that justified a departure from those procedures with regard to part II. I was seeking to do nothing more and nothing less than that.

Mr. Maclennan

An important constitutional issue is at stake. If the Government are able to pray in aid the absence of a report from the Scottish Law Commission in respect of a matter and refuse to legislate or to permit Private Members' legislation, they are seeking to arrogate either to themselves or to the Law Commission the power to delay or order the priorities of legislation.

There are plenty of other matters outside consumer law reform on which it would be open to invoke the same argument. During this year there was a highly contentious piece of legislation on labour law. The Government did not think it appropriate to seek an opinion from the Law Commission on that. None the less, that is an important piece of law reform. I make no complaint about the fact that the Government did not invite an opinion from the Law Commission on that matter.

The Government are entitled to introduce legislation at any time they choose. The House can consider the merits or the demerits of a Bill. What is not acceptable is that consumer protection law should be treated differently from other law reform, and that it should be treated as a matter not of political judgment for consideration by the House. The Solicitor-General, in raising the matter in the way that he did, paid scant attention to the legitimate concerns that have been expressed by a body appointed by the Government—the Scottish Consumer Council.

It is unacceptable that the Minister has given little indication of the Government's views. It is obvious that the Government give a low priority to seeking to bring about the reform of the law in this area. I have no doubt that that will give rise in Scotland to a recognition that in this, as in so many other matters, the Government are trailing behind Scottish opinion on the need for law reform. That is no reflection on the excellent work that is being done by the Scottish Law Commission. It is a reflection on the priority that the Government have given to consumer matters in Scotland.

That is reflected not only in their failure to bring in substantive law changes, but in their failure to use a Private Member's Bill, which they could have sought to amend. They have chosen not to do that, but prefer to scrap the whole proceedings and they will not even give an undertaking that if the Law Commission brings forward proposals they will be facilitated in Parliament.

That is disgraceful, and typical of the reactionary approach to consumer protection that the Government manifest in Scotland.

It being Eleven o'clock, Mr. Deputy Speaker interrupted the proceedings, pursuant to Standing Order No. 5 (Friday sittings)

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