RESTORATION OF POSSESSION AND SPECIFIC PERFORMANCE (Hansard, 11 July 1988)

§ The Parliamentary Under-Secretary of State for Scotland (Lord James Douglas-Hamilton)
I beg to move, That the clause be now read a Second time.

§ The Second Deputy Chairman of Ways and Means (Miss Betty Boothroyd)
With this it will be convenient to discuss Government new clause 2 and Government amendments Nos. 1 to 3.

§ Lord James Douglas-Hamilton
In speaking to new clause 1, I shall speak also to the second new clause and to three amendments. I intend to propose them en bloc because none involves amendments to the law.
The main amendment is made by new clause 2, which concerns section 89 of the Court of Session Act 1868. The Scottish Law Commission's original view, as recorded in its report on this consolidation measure, was that this provision should be repealed in its entirety since it related to the Bill Chamber which was abolished in 1933. However, the commission has now reconsidered that view and wishes to restrict the appeal to those parts of section 89 which specifically relate to Bill Chamber proceedings.
Accordingly, new clause 2 re-enacts those provisions of section 89 which cannot be regarded as wholly obsolete as relating to the Bill Chamber and which relate to the powers of the Court of Session. For example, an interdict normally prevents an action, but section 89 of the 1868 Act also allows the granting of specific relief. Therefore, it is desirable that that power should be retained so that there is no doubt about the extent of the court's powers.
In order to achieve parity of treatment in the Bill of section 89 and section 91 of the 1868 Act, new clause 1 re-enacts also those provisions in section 91 which are not obsolete. Section 91 is similar in nature to section 89 of the 1868 Act and it should be helpful to practitioners if both provisions are dealt with in the Bill in the same manner—[Interruption.] Well, the point is that unless a provision is entirely obsolete it should not be rubbed out of existence without the House expressing a view on it. The point is that we are consolidating the law.
Amendments Nos. 1 to 3 are purely technical amendments. They are aimed at making clear which of the repealed provisions are re-enacted in the Bill or are repealed without re-enactment.
162 The noble and learned Lord, Lord Oliver of Aylmer ton, the chairman of the Joint Committee on Consolidation Bills, has been consulted on the amendments. He has stated that he is of the view that they are appropriate to a consolidation Bill and further that the amendments do not change the legal effect of the Bill. That is what the hon. Member for Strathkelvin and Bearsden (Mr. Galbraith) was concerned about. Therefore, I commend the new clauses and amendments to the House.

§ Mr. John Maxton (Glasgow, Cathcart)
Not having understood a single word that the Minister said, I should point out that even in a Committee of the whole House, it is unusual for the Government's Deputy Chief Whip to make any intervention, whether from a sedentary position or not. I should assure the hon. Member for Penrith and The Border (Mr. Maclean) that I do not think that I was the only hon. Member who had difficulty in understanding what the Minister was saying. Indeed, I have a grave suspicion that the Minister himself did not understand what on earth he was saying. However, he read well from his notes and I accept that he is quite a good reader, but it is putting it a bit strongly to say that he actually understood it.
This is a consolidation measure. It had its Second Reading debate and I gather was printed some weeks ago. What I want to know is what evidence has appeared in the courts in Scotland, in the Court of Session, in the weeks between the printing of the Bill and this Committee stage or even since Second Reading.
The Minister said that it was originally believed that these clauses had fallen out of use and were no longer needed on the statute book. The only reason for reintroducing them is that in the past two weeks they have come back into use in the courts. Surely the Minister can give us examples of how this has come about. There must be a reason behind it. If not, why were they not included in the original Bill?
The Minister's explanation is unsatisfactory. He might have given us a fuller explanation of exactly what the new clauses do and why they are now necessary when two weeks ago they were not. I hope that the Minister will spend a few minutes giving us that explanation. If that is the sort of nonsense that Alex Pagett was having to sell, I am not surprised that he chucked it.

§ Mr. Menzies Campbell (Fife, North-East)
Less than a week ago we heard the Minister tell the House that this was an uncontroversial consolidation measure which should not occupy the time of the House. We now find him compelled to move two new clauses and three consequential amendments. One is bound to ask what the Minister knew and when he came to know it. How is it that an uncontroversial measure suddenly requires new clauses and consequential amendments?
The Minister's explanation of new clause 1 was less than convincing. I understand that it relates to section 91 of the Court of Session Act 1868. That section has been in use in the Court of Session since the passing into law of the Housing (Homeless Persons) Act 1977 when, in the absence of a system of judicial review in Scotland, recourse was frequently made to section 91 in an endeavour to persuade local authorities to discharge their statutory responsibilities. It is unconvincing that the draftsmen should have failed to take proper account of that when the section was in use and a matter of some judicial 163 controversy in the past 12 years. I hope that this is not a measure of the standard of draftsmanship that we may expect.
The Minister knows that I have been pressing him for some time in questions and I asked again on Second Reading for a proper review of Court of Session procedure. Many people believe that that is a necessary accompaniment to the proper use of the Court of Session and its relevance to modern practice. I hope that if such a review is embarked on, the standard of draftsmanship which accompanies it will not be the same as that which apparently allowed these mistakes to occur in what we were told was an uncontroversial and consolidating measure.
Both new clauses create remedies in the Court of Session. It is not clear in either case whether the new clauses provide that the remedies should be available on an interim basis. New clause I, which deals with the restoration of possession and specific performance, does not make any reference to whether such remedies may be available on an interim basis. Likewise, new clause 2 does not make any express reference to whether specific relief may be granted in interdict proceedings on an interim basis.
I hope that the Minister will take a little time to answer those points, which, in my respectful judgment, have some substance and may have important legal consequences in the Court of Session and, indeed, the law of Scotland.
It is perhaps unfortunate that these matters come before us at the end of a long day, because at another time those of us who know a little more about the procedure of the Court of Session might have been persuaded to press the Minister a little more vigorously. Perhaps the lengthy day has operated to the Minister's advantage. But I hope that he will accept that my observations are prompted by nothing other than a desire, which I have no doubt he shares, to ensure that the law of Scotland in this unitary Parliament receives the proper consideration that it deserves and that we pass into law, even by way of consolidation, only measures that are apt and appropriate and are not the subject of faulty draftsmanship.

§ Lord James Douglas-Hamilton
The Scottish Law Commission reconsidered its view because it noticed that a genuine error had been made by those responsible for drafting. I take full responsibility, although I did not draft every word personally. Acts going back to 1594 were being consolidated and obsolete provisions were being omitted, and one error was made in this case. As soon as it was picked up, we acted on it at once and came back to the House.

§ Mr. Maxton
Where did the Law Commission meet to take that decision?

§ Lord James Douglas-Hamilton
I am not sure whether there was a formal meeting. The Law Commission's view was firmly imparted and we are acting on it. I assure the hon. Gentleman that I am faithfully recording what that view was. It is clear that that was the Law Commission's view.

§ Mr. Maxton
It may well be the Law Commission's view, but many Opposition Members do not know who 164 the members of the commission are, how many they are and how, if they did not have a formal meeting, they came to a decision that has been put so clearly to the Minister. How on earth did they come to the decision, or was it just the chairman or the clerk who decided that a mistake had been made?

§ Lord James Douglas-Hamilton
The Scottish Law Commission does not put forward recommendations unless it has given them the most thorough and complete consideration. I have no regrets whatever about supporting the commission in this connection.
The hon. and learned Member for Fife, North-East (Mr. Campbell) asked about whether the provisions would apply on an interim basis. The present provisions do not deal with interim orders. I should make that clear. I have no hesitation in coming back to the House to admit that there was an error.

§ Mr. Brian Wilson (Cunninghame, North)
Has the Minister noticed that while learned people such as my hon. Friend the Member for Glasgow, Cathcart (Mr. Maxton) and the hon. and learned Member for Fife, North-East (Mr. Campbell) are here, only one party is not represented at this dissection of Scots law?

§ Lord James Douglas-Hamilton
I note what the hon. Gentleman says about the absence of the Scottish National party.
I end by saying that the lesser the man who is not wiser today than he was yesterday. I have great enthusiasm in proposing these corrections.