Court of Session Bill [Lords] (Hansard, 6 July 1988)

§ The Parliamentary Under-Secretary of State for Scotland (Lord James Douglas-Hamilton)
I beg to move, That the Bill be now read a Second time.
The Bill repeals or re-enacts the existing provisions in many statutes since before the Act of Union right back to 1594. It relates to the Court of Session and its procedures, which have been brought up to date. This is a consolidation Bill and is totally non-controversial. The Joint Committee on Consolidation Bills said that there was no point to which the attention of Parliament should be drawn.

§ Mr. Menzies Campbell (Fife. North-East)
Good order and good sense dictate that one should not detain the House unnecessarily on a measure of this nature at this time. However, it is proper to say, as the Minister has said, that many of the statutory provisions that are to be re-enacted date from before the Act of Union. As a consequence, it is perhaps unfortunate that the opportunity has not been taken to bring some of the provisions into line with modern practice in the Court of Session. I hope that the Government will soon take that opportunity. They have some encouragement from the remarks, widely reported today, of the president of the Law Society of Scotland who, in another guise, was formerly the senior partner of the hon. Member for Glasgow, Garscadden (Mr. Dewar) and who has offered himself in Conservative colours at least once in a general election in Scotland.
I hope that the Government will soon take the opportunity to give serious consideration to a proper review of the procedures of the Court of Session. The Bill provides that, at the discretion of the Lord President, what is called an extra division may be formed for dealing with civil appeals. Many of us who have experience of practising in the Court of Session think that the opportunity should be taken to establish permanently an extra or third division in the Court of Session in order to deal more speedily and effectively with civil appeals.
The Bill preserves the right to civil jury trial—a right that has existed in the law of Scotland since the early part of the 19th century. It is important to mention that because recently the Lord Advocate was reported as saying that the Government are considering the abolition of that right to civil jury trial. They are doing that on the view that the introduction of hearsay evidence—a matter that we discussed earlier this week—makes it difficult, if not impossible, for a jury to be properly directed about its duties in a civil trial. There is nothing new in that attitude. In the early 1970s when the law governing interest on damages was changed in Scotland the view was that civil jury trial would no longer be possible because of the difficulty of giving proper directions to juries. That view was proved to be wholly unfounded. In the case of Macdonald v. Glasgow Corporation, with which I have no doubt the Minister is intimately familiar, the first division of the Court of Session made it plain that civil jury trials could exist side by side with the changes in the legislation governing interest on damages.
1164 I am happy to note that civil jury trial is preserved. because in many cases civil jury trial is the most appropriate means of determining the issues at stake. That applies particularly to road traffic accidents and to cases in which there are clear and unequivocal conflicts of fact which a jury is especially well suited to resolve.
I am glad to note that the provisions are to be re-enacted, but I give notice to the Government that if proposals are finally made to remove civil jury trial as part of the procedures of the law of Scotland, there may well be strenuous opposition, not only from the Opposition parties but from that well-known guardian of Scottish legal tradition, the hon. and learned Member for Perth and Kinross (Sir N. Fairbairn) who, unfortunately, is riot present this evening. No doubt he is recovering from his recent illness. We are grateful for that and wish him the speediest possible recovery.
As the Minister said, the Bill is not controversial. However, some of the measures that it re-enacts appear to be the subject of Government review. If that review results in an attempt to remove some of the provisions, the Government may find themselves in rather more controversy than they have bargained for.

§ Mr. Donald Dewar (Glasgow, Garscadden)
First, I assure the hon. and learned Member for Fife, North-East (Mr. Campbell) that the present president of the Law Society of Scotland is still my senior legal partner. These days it may be an academic or theoretical connection; none the less, it is legally valid.
I do not propose to spend long on the Bill, which is very much a consolidation measure; in any event, I recognise that I am circumscribed in that respect. I shall certainly not be tempted into an argument about whether we need a third division in the Court of Session. That sounds rather threatening. I welcome the Bill and the fact that 20 19th-century Acts have been raided and the various provisions regulating the Court of Session have been put in easily accessible form. That will certainly help practitioners.
The Law Society was good enough to supply me with a number of comments on the Bill. In the interests of speed and fairness, I shall not refer to some of those comments, because they deal with law reform points rather than matters of consolidation. No doubt the Law Society will be taking them up with the powers that be with a view to getting changes made and improvements such as those referred to by the hon. and learned Member for Fife, North-East introduced. It would be interesting, for example, to have a debate about the maximum number of judges. Even more optimistically, it was suggested that we might consider universal rights of audience in the Court of Session. That would certainly provoke a lengthy debate with the two members of the Bar who are assembled here.
Clause 6 deals with the allocation of business by Act of Sederunt. Clause 6(i) gives a number of classifications of the causes brought into the court. It refers to an Ordinary Roll … an Admiralty and Commercial Roll and … a Consistorial Roll and a number of other matters. I have never practised in the Court of Session, but I am told that there is an optional procedure roll which is not mentioned in the Bill. Presumably, it can still be covered by Act of Sederunt, or perhaps it is seen as some sort of subsection to one of the main rolls to which I have referred. Perhaps the Minister 1165 could say whether it has had any statutory life in another Act and been dropped, or whether it has never had that kind of statutory form and authority. It is a minor point, but perhaps he could refer to it.
The hon. and learned Member for Fife, North-East referred to the argument, which is receiving some publicity because of the Civil Evidence (Scotland) Bill, about the future of jury trials, but that is an argument for another occasion. I know that, by and large, members of the Bar and solicitors who practise in the Court of Session feel strongly that civil jury trials should survive. I do not complain about that, although the case is weakened by the fact that the number of jury trials has declined dramatically. At one time, they were reasonably frequent and there were more than 100 per session. I am told that we are now down to five or six, which suggests that, however important they may be, they are almost falling into desuetude.

§ Mr. Menzies Campbell
Does the hon. Gentleman accept that many cases are settled before they come to proof or trial, and the mere fact that a case has been allocated for disposal by way of a jury trial frequently persuades the parties to effect a settlement, which in turn saves court time?

§ Mr. Dewar
I am aware of that, and it is a fair point. The threat of a jury trial perhaps concentrates the mind wonderfully on settlement. That is sadly true of all litigation in the Court of Session, where the costs are now formidable, and I am not sure that we should accept that with much pleasure.
I was interested to note that the senior solicitors who were quoted in the public prints this morning in defence of jury trials very honestly made it clear that their devotion to them is largely because they see them as a way in which to maximise damage awards. I have some sympathy with that, as someone who, with limited experience, has been interested in representing the pursuer.
The Bill will be useful because it will make the chasing of the facts easier. Like most consolidation measures, it will do a useful job, and we should all welcome that. If it 1166 starts one or two hares running and reminds us about some of the changes and modernisation that are still required in Court of Session practice, but cannot be properly encompassed in a consolidation Bill, it will have done a second service, by persuading us to look for further reforms.

§ Lord James Douglas-Hamilton
The answer to the first question asked by the hon. Member for Glasgow, Garscadden (Mr. Dewar) is that the matter is covered by Act of Sederunt under powers in clause 5. My understanding is that the courts are enabled to regulate their own procedures.
I am grateful to the hon. Member for Garscadden and to the hon. and learned Member for Fife, North-East (Mr. Campbell) for raising those points and the points made by the Law Society, which will be carefully considered. They seem to be matters for the Lord Advocate, but not in the context of the Bill, which merely restates the existing law, making provision to remove laws which are anachronistic or obsolete.
The hon. Member for Garscadden knows that there are now very few civil jury trials, but I understand that it is the Lord Advocate's intention to consult, and I am sure that he will contact both hon. Gentlemen. I am grateful to the hon. Gentleman for raising that matter.
The Bill is necessary because it repeals an Act of 1594, which debars a judge from sitting in any cause where one of the parties is his father, brother or son or father-in-law, brother-in-law or son-in-law". The only problem is that the Act dealt only with a case where the related party was a male—not, for example, where one of the parties was the judge's sister. In these days of,equality of the sexes, I am sure that the House will generally welcome a measure that brings the law up to date.