§ Order for Second Reading read.
§ Mr. Speaker
Before I call upon the Secretary of State for Scotland, I must announce to the House that I have selected the amendment in the name of the Leader of the Opposition.
§ The Secretary of State for Scotland (Mr. Malcolm Rifkind)
I beg to move, That the Bill be now read a Second time.
I have read the reasoned amendment which the Opposition tabled and which you, Mr. Speaker, have selected for debate. I notice from its contents that it appears that the greatest objection that the Opposition have to this miscellaneous provisions Bill is that it consists of miscellaneous provisions. Perhaps that is not a surprising observation by the Opposition, and naturally we look forward to the constructive contribution that the hon. Member for Glasgow, Garscadden (Mr. Dewar) will make.
This is an important measure covering a wide range of proposals that affect the law and practice in Scotland. It has three major parts and some minor, but useful, provisions. It has already been the subject of extensive debate in another place and some important and helpful amendments have been made. However, the central purposes remain. They are, briefly: to introduce new arrangements for supervising charities in Scotland; to improve choice in legal services; and to make important adjustments to the law on liquor licensing.
Part I of the Bill will establish an improved system for the supervision of charities in Scotland. In July 1988, I issued a consultative memorandum, "Supervision of Charities in Scotland", the response to which confirmed my view that the current arrangements for supervising charities are inadequate for modern needs. It is not widely appreciated that Scotland does not have—and never has had—a Charity Commission. In Scotland, bodies that wish to be recognised as charitable in order to qualify for tax relief must apply to the Inland Revenue for confirmation that their objects are charitable.
The difficulty with the current arrangments is not that the Inland Revenue is in any way unsuited to the role of granting charitable recognition. It was evident from the comments made by the numerous charitable bodies that the Inland Revenue's claim branch in Edinburgh has established a considerable reputation for its knowledge and helpfulness in dealing with organisations seeking recognition.
The difficulty with the current arrangements is that the Inland Revenue's dealings with charities are governed by a rule of absolute confidence. The Revenue cannot so much as acknowledge to a member of the public, or to any official body, that it has recognised a body as being charitable. Nor is there any body to which it can report instances that it may discover of wrongdoing by a charity where such wrongdoing is not related to a tax matter.
157 For charities to sustain the important function that they play in Scottish society, they must retain the confidence of the public who support them. The best way of maintaining that confidence and good will is to ensure that every charity is openly accountable for the manner in which it conducts its affairs and makes use of the money that it has under its trust. Charities are rightly held in high esteem, but the charitable world, like any other, can attract rogues—and, as elsewhere, one bad apple can spoil the barrel. In instances where misuse of charitable funds takes place, or where serious mismanagement occurs, it is right that there should be provision for the affairs of the charity to be investigated and for those responsible to be brought to account. Those views are not exclusively mine—they are strongly held in the voluntary sector itself.
With those objects in view, clause I of the Bill makes provision that will enable the Inland Revenue to disclose to members of the public the names and addresses of bodies that it has recognised as being charitable and to pass to my noble and learned Friend the Lord Advocate information about any non-charitable activity among such bodies. That is a most important provision. For the first time in Scotland, members of the public will have a right to be informed which bodies have received recognition as charities for tax purposes. The clause also requires any charity to provide, for a reasonable fee, to anyone who requests it, a copy of its explanatory document—that is, its trust deed or other document setting out its aims and objectives.
Clause 2 will prevent bodies that have not been recognised by the Inland Revenue—or, if they are established in England and Wales, by the Charity Commission—from representing themselves as charities to the Scottish public. It provides that bodies which have not been recognised and which represent themselves as charities shall be guilty of an offence.
§ Mr. George Foulkes (Carrick, Cumnock and Doon Valley)
As to the publication of names and addresses and other information about charities, the Secretary of State will be aware that there is some concern that a full description of the purposes and functions to which the money that the charity receives is applied, if it is a grant-giving charity, may not be disclosed. If it is a charity that is a recipient of grants, again its purposes may not be properly known. Can the right hon. and learned Gentleman say whether all such information will be publicly available in future, and whether it will be possible to publish a directory of grant-giving and grant-receiving charities in Scotland?
§ Mr. Rifkind
As to the hon. Gentleman's initial point, one is likely to find out most about a charity's prime purpose not so much from its constitution, which is likely to be widely drafted—that has been the experience of most charitable organisations—but from the title of the charity and how it distributes its income. Because the charity's accounts will be available, one will know how the sums received by a charity are being allocated. In addition, we have said that we shall be happy to see co-operation with, for example, the Scottish Council for Voluntary Organisations, if it wishes to draw up a directory of the type that the hon. Gentleman mentions, to provide the additional information to which he attaches importance.
158 Clauses 3 and 4 place a duty on charities in Scotland to keep proper accounting records and to make available to members of the public, on payment of a reasonable fee, copies of their annual accounts. Those accounts must include a report of the bodies' activities over the year. By those provisions, individual members of the public will, for the first time, be able to discover in respect of any charity in Scotland what its charitable purposes are and what it has done to promote those purposes. Ready, direct, public access to information provides the key to the Bill's supervisory provisions.
§ Dr. Norman A. Godman (Greenock and Port Glasgow)
Will credit unions fall within the provisions of that part of the Bill?
§ Mr. Rifkind
I think not, although I shall check that I should not have thought that a credit union would be recognised as a charity by the Inland Revenue for tax-raising purposes. Unless it is, it would not normally meet that criterion. However, I shall certainly have that point checked.
Clauses 5 to 7 are concerned with the investigation of mismanagement and the penalising of offenders. They enable my noble and learned Friend the Lord Advocate to carry out investigations within Scotland where it appears that the organisers of particular charities have been guilty of mismanagement or other wrongdoing. They also give the Lord Advocate powers to petition the court for orders remedying and preventing the continuance of abuse, and for orders imposing penalties on those responsible.
Clauses 8 and 9 concern a different aspect of reform. The doctrine, known as cy pres, or approximation, enables a public trust whose purposes have failed to petition the Court of Session for approval of a scheme authorising the application of trust funds to a purpose as near as possible to the original purpose. Unlike the position in England and Wales, the cy pres procedure is in Scotland available only where it is no longer possible to carry out the trust's purposes in the manner prescribed. Clause 8 widens the opportunity for reorganisation by enabling application to be made to the court where the trust's purposes have become obsolete or lacking in usefulness.
Clause 9 goes yet further by providing procedures that will enable small public trusts having an annual income of not more than £5,000 to reorganise without the necessity of seeking court approval at all. Clause 10 enables certain very small trusts no longer capable of achieving the purposes for which they were established to spend capital in order to achieve their charitable purposes. Taken together, those provisions will go a long way towards unlocking charitable funds and enabling them to be applied to better effect in modern society.
§ Mr. Alistair Darling (Edinburgh, Central)
Does the Secretary of State accept that one of the unexpected benefits of what is a wholly welcome provision is that health boards might be able to divert money given to them in trust in order to bail themselves out of financial difficulties? The right hon. and learned Gentleman may think of Lothian health board, for example, which expects to make an adjustment to its various trusts to help itself out of its present difficulties. Will the Bill contain a safeguard to ensure that the purposes of trusts will not be altered in such a way as to substitute private trust funds for public funding—which I am sure he agrees is the basis on which health boards ought to be funded?
§ Mr. Rifkind
I agree with the hon. Gentleman, and if he looks at clause 9 he will see that that procedure for reorganising the expenditure of the trust without the court's approval applies only to trusts with an annual income of not more than £5,000. We are talking about small trusts and trusts with a more substantial financial establishment, which continue to require the approval of the courts if they wish to depart from the original purposes of the trust. Therefore, I do not think that in practice the considerations to which the hon. Gentleman referred are likely to be affected in any significant way by the provision.
I trust that I have said sufficient to outline the broad purposes of part I of the Bill. It has been designed to meet the particular needs and circumstances in Scotland and to take account of concerns expressed not least by the charities themselves.
§ Mr. Menzies Campbell (Fife, North-East)
The Secretary of State will be aware that the word "charity" has a much broader definition under the law of Scotland than it enjoys under the law of England and Wales. It seems to me that a consequence of clause 2, as proposed, is that if, for example, the trustees of a local hall committee in a small community were to seek to raise money, describing what they were doing as being for charity, because that organisation was not a recognised body, those trustees would be guilty of a criminal offence. Does not the Secretary of State feel that that is a sledgehammer to crack a nut, which thus far does not appear to have caused much difficulty?
§ Mr. Rifkind
I think that the hon. and learned Gentleman would be well advised to consult the charities, which believe that the provisions are highly desirable. We are concerned about any organisation, large or small, which presents itself to the public as an organisation with charitable purposes, which may be seeking the tax advantages that go with charitable status and which seeks to persuade the public to divest themselves of certain resources to help the objects of the charity. The provisions are applied to protect the public from unscrupulous organisations. I believe that all responsible organisations will be only too happy to welcome the provisions, as indeed those representing charities have already done.
§ Mr. Foulkes
I want to mention another issue that relates to part I of the Bill, before the Secretary of State moves on. He will be aware that in Scotland, especially in Edinburgh, there are several trusts, such as the George Heriot Trust and the George Watson Education Board, among others, which run private schools. What provisions of this part of the Bill will be applicable to those organisations?
§ Mr. Rifkind
In so far as those are charitable trusts that currently receive tax benefits recognised by the Inland Revenue, the Bill applies in its entirety to them, in the same way as it would to any other charity.
Part II of the Bill deals with legal services. This part of the Bill is based on the conclusions reached after considering responses to the two consultation papers: "The Practice of the Solicitor Profession in Scotland", and "The Legal Profession in Scotland".
As I emphasised in that statement, the fundamental objective of the reforms is, within the Scottish legal tradition, to increase choice for the client of legal services, while at the same time preserving and, where possible, 160 improving, consumer protection mechanisms. The main areas for increased choice are conveyancing and executry work and representation in litigation. Hon. Members will be aware that a number of amendments were made in another place that have strengthened the provisions in part II, which deal with protection of the clients of conveyancing and executry practitioners. I am determined that any new providers of legal services will compete with solicitors on a fair basis, and that clients will enjoy no less protection than that offered by solicitors.
As the House would expect, I have attached importance to the distinctive Scottish legal system, and I believe that the provisions fully reflect that. For example, the mechanisms to allow solicitors to qualify for rights in the Supreme Courts build both on existing rights in the sheriff courts and on the essential requirements for practice as an advocate.
The establishment of a unitary regulatory body, the Scottish Conveyancing and Executry Services Board, to oversee the registration and regulation of conveyancing and executry practitioners, has been widely welcomed. The board will, after an initial period, become self-financing and will fund its activities from the fees that it charges to those registered with it. The board will be an independent body charged with certain statutory functions. Its functions will apply to a very wide range of practitioners, from sole practitioners to large institutions, and it will require to establish its own distinct identity without showing bias towards any one group.
Contrary to what some have attempted to suggest, this part of the Bill does not allow just anyone to undertake conveyancing work. Prospective practitioners will have to comply with stringent registration requirements, to be set out in regulations. Once registered, a conveyancing practitioner will be bound to comply with a code of conduct and practice, also to be prescribed in regulations. Finally, disciplinary sanctions are available against those who fail to comply, the deterrent effect of which will be at least as great as that of the sanctions attaching to solicitors. The board's powers will enable it to revoke registration if necessary.
§ Mrs. Margaret Ewing (Moray)
Can the right hon. and learned Gentleman explain why he has not brought forward a code of conduct, which could be included within the primary legislation and which would be much more acceptable to the legal profession?
§ Mr. Rifkind
Certainly there are some matters that require statutory force, but I should be reluctant to include them in primary legislation because, by its very nature that would require further primary legislation if any subsequent amendment or improvement were required. Therefore, while it would be appropriate to spell out what is proposed and intended, the profession would welcome the flexibility implied by secondary legislation in respect of any future improvements in the light of subsequent experience.
It has been suggested—
§ Mrs. Maria Fyfe (Glasgow, Maryhill)
Before we leave the subject of conveyancing, has the Secretary of State any plans to study surveyors and the inadequacies of the service that they provide?
§ Mr. Rifkind
I should be interested to hear what the hon. Lady has to suggest. I have expressed views in the 161 past about certain aspects of surveying as it affects house purchase in Scotland. I look forward to the hon. Lady's comments on that subject, which we shall study in some detail.
It has been suggested that there is no demand for the changes to the provision of conveyancing services in Scotland. Attention has been drawn to the high levels of customer satisfaction that opinion surveys have revealed for conveyancing work undertaken by solicitors. I readily accept that the solicitors' profession in Scotland provides an extremely high standard of service, and has much of which it can be proud. Whether or not other conveyancing practitioners can offer a service as attractive as that provided by solicitors is something that the public should be able to ascertain for themselves.
It is slightly misleading to speak of breaking a monopoly on conveyancing services. Although solicitors, in every practical sense, have had a monopoly, that is the result of the reservation to solicitors of the right to charge for undertaking a relatively small part of the conveyancing transaction. That restriction makes it an offence for persons other than solicitors to draw or prepare the conveyancing deed if they are doing it for a fee.
Under current law it is theoretically possible, therefore, for a person to conclude missives and do everything else involved in a conveyancing transaction, save preparing the actual deed. Nevertheless, the narrow legal restriction has had the wider practical effect of reserving almost all conveyancing business to solicitors. I readily grant that there is a public interest in the quality and accuracy of our registers of deeds and titles to land. That is one reason why it would be wrong to allow simply anyone to undertake conveyancing, but it is not sensible or historically accurate to assert that that restriction is or was designed to perform other functions such as guaranteeing independent advice for house buyers. While that may be one consequence in the existing framework within which conveyancing services are offered, the Government do not believe in forcing clients to use a single set of service providers when others could offer a competent service within a framework which provides adequate customer protection.
Building societies or others will be required to employ suitably qualified persons to provide interviews with each prospective client and to oversee every conveyancing transaction. A "suitably qualified person", in this instance, means either a solicitor or, in due course, a qualified conveyancer. Solicitors who join the employ of, say a building society do not thereby lose any of their competence in conveyancing. I am firmly of the view that all those qualified and capable of offering conveyancing services should be able to do so, subject of course to rigorous consumer safeguards. Part II of the Bill satisfies that objective, and provides clients with greater choice, while maintaining and sometimes enhancing existing safeguards.
I have been concerned throughout the Bill to ensure that a level playing field is established between solicitors and other providers of legal services—[Interruption.] The phrase has regular contemporary currency and I knew that it would be clear to the House exactly what I intended to convey.
I am particularly concerned that there is no threat to the network of rural solicitors' offices. A number of measures, 162 both in the Bill and in regulations to be prescribed in future, will serve to prevent unfair competition and thus diminishing the availability of legal services in rural areas. Those measures include the requirement, to be included in regulations made under clause 15, that all conveyancing practitioners offer all prospective clients an interview with a suitably qualified person, either close to the property being conveyed or close to the client's home or place of work. It will prevent anyone from offering conveyancing services from his head office without establishing face-to-face contact between the conveyancer and the client.
Such regulations will also require conveyancing practitioners to price each service separately. To support the measures, clause 81 of the Courts and Legal Services Bill makes it an offence for a provider of lending services to make any loan conditional on the purchase of another service or to make any service available only if the client takes out a loan.
§ Sir Nicholas Fairbairn (Perth and Kinross)
As the Bill allows anybody to go into partnership with a licensed or qualified conveyancer, why does my right hon. and learned Friend think that only building societies, banks and institutions of that nature will take advantage of the Bill? If it is on a level playing field, why could not hairdressers say, "While you are having your hair cut, why not arrange to buy your house?"?
§ Mr. Rifkind
That may be a theoretical possibility, if those people are able to meet the statutory requirements. Whether they would be likely to have much success in attracting clients on that basis is at the least doubtful.
The measures should serve to prevent any market dominance by conveyancing practitioners that is detrimental to the availability of legal services in rural areas. If any further fine tuning appears necessary in that context, we shall be receptive to suggestions. Moreover, my Department has been undertaking research into the geographic availability of legal services throughout Scotland, so that it will be possible in future to ascertain whether or not increased competition has led to any diminution in the availability of legal services, particularly in rural areas. That is something, therefore, which the Government are keeping under review because, while I do not believe that the proposals relating to conveyancing in the Bill will adversely affect rural solicitors, I consider it to be an important enough issue to merit vigilance.
§ Mr. Thomas Graham (Renfrew, West and Inverclyde)
How long will that review take? By the time it is completed, all the lawyers' practices in rural areas might be closed.
§ Mr. Rifkind
We are publishing this week a document on the current availability of solicitors' offices in various parts of Scotland, including the rural areas. We intend to monitor on an on-going basis any changes in that provision over the next few months and years.
§ Mrs. Margaret Ewing
Obviously, that is a matter of great concern to individuals such as myself. How will the Secretary of State ensure that, in the interim, facilities are available in rural areas? Conveyancing may represent the bread-and-butter money of rural practices and rural solicitors may have built up expertise in farming or fishing law, which is of great importance to individuals in my constituency. What will happen if there is a diminution of 163 services during that period? Will my fishermen and farmers be expected to travel to multi-disciplinary practices in Aberdeen, Edinburgh or Glasgow, or will the Minister ensure that facilities remain available to them in the interim period?
§ Mr. Rifkind
It is reasonable to conclude that, as long as there is a demand for solicitors' services in the towns in the hon. Lady's constituency, solicitors will be only too happy to provide those services. The hon. Lady should have the confidence that I certainly have in members of the legal profession in her constituency continuing to attract members of the public to use the services that they provide.
I remember when it was proposed to take undefended divorces from the Faculty of Advocates and allow those matters to be dealt with in the sheriff court. Many members of the faculty, including myself, were worried whether that would lead to the destruction of the Faculty of Advocates. In practice, over the period that has elapsed since then, there are virtually double the number of advocates working in Scotland doing other forms of work.
§ Mr. Bill Walker (Tayside, North)
Will my right hon. and learned Friend confirm what he said earlier, that reasoned amendments to ensure the survival of rural practices and rural solicitors would be received kindly by the Government, who would co-operate if possible? Was that the substance of what he was saying?
§ Mr. Rifkind
Naturally, we are anxious to ensure that the end of one restrictive practice does not lead to the creation of another. That means that there must be an opportunity for fair competition between solicitors' practices and building societies or banks that may employ solicitors or licensed conveyancers to do conveyancing work. I confirm that we shall consider in a positive light constructive and sensible proposals to ensure that that is achieved.
§ Mr. William McKelvey (Kilmarnock and Loudoun)
I have listened most carefully to the right hon. and learned Gentleman. He has just confessed that he is a member of the Faculty of Advocates, and I should like to offer him some free advice. Perhaps he should have mentioned that when he opened the debate, if not as a declared interest, certainly as a moral declared interest.
§ Mr. Rifkind
Normally, subject to your advice, Mr. Deputy Speaker, one declares an interest if one has the possibility of financial gain from the provisions of a Bill. If the provisions of the Bill mean that the Faculty of Advocates is to lose its monopoly position in the Court of Session and the High Court, there is hardly likely to be a financial interest to declare in terms of the normal criteria affecting those matters. However, my membership of the Faculty of Advocates is referred to in the Register of Members' Interests. Had the hon. Gentleman consulted that document, he would have been well aware of my background.
Clause 22 will enable solicitors to acquire rights of audience before the highest courts in Scotland. It is fair to say that for us in Scotland, the admission of solicitors to Supreme Court practice is a natural progression. Solicitors' rights of audience before the sheriff court are already extensive. Solicitors are already able to plead in jury trials that may result in sentences of up to three years' imprisonment; and the sheriff's civil jurisdiction overlaps extensively with that of the Court of Session. It is 164 commensurate with the overall aim of this part of the Bill that clients should have access to as wide a choice of supreme court pleader as possible.
As my noble and learned Friend the Lord Advocate made quite clear in another place, that is not to say that any compromise is contemplated on standards. The Court of Session and the High Court of Justiciary depend on those who appear before them to provide the highest standards of pleading and legal argument. Clause 22 of the Bill makes provision for solicitors to acquire rights of audience in the supreme courts only where they satisfy the council of the Law Society that they measure up to such standards. Those standards will themselves be approved by the Lord President of the Court of Session and by the Secretary of State.
§ Mr. Foulkes
As a former councillor, the Secretary of State will recall that as a very junior bailie I served on the bench in Edinburgh, so some strange people serve on the bench. What are the consequences of solicitors doing the jobs of advocates in the Supreme Court, for appointments to the bench? Should there not be appropriate consequential changes?
§ Mr. Rifkind
The hon. Gentleman is certainly right that the presence of baillies on the bench can have curious consequences. I recollect on Edinburgh baillie saying to a person convicted before him that he would fine him £50, and had there been any evidence against him, he would have sent him to prison, but I am sure that the hon. Gentleman did not make that particular observation. As for the entitlement of solicitors to judicial appointment, if the hon. Gentleman consults the Bill he will see that there is provision to that effect and I shall refer to it in a moment.
§ Mr. Menzies Campbell
As the purpose of the provisions is increased choice, will the Secretary of State give the House an undertaking that a person admitted to legal aid will retain the choice of a solicitor and an advocate or solicitor-advocate and that, by virtue of these provisions, he will not be prevented from having the representation that he prefers?
§ Mr. Rifkind
I am happy to give that assurance to the hon. and learned Gentleman. It is in the public interest that that should be made quite clear and unambiguous in this context.
It can only be right that a solicitor who can demonstrate that he has the requisite ability and experience and who is willing to accept the obligations that attach to supreme court pleading should be able to provide such a service. Moreover, steps have been taken to ensure that solicitors with supreme court rights of audience shoulder similar obligations to provide representation in all cases as advocates. It is clearly important that the rules governing the two groups of supreme court pleaders should be based on comparable principles. Clause 22 provides for that. That approach also applies to rules governing the conduct of non-lawyers who acquire rights of audience, or rights to conduct litigation in any court under clause 23.
Clause 25, coupled with the provisions in schedule 7, which repeal the statutory barriers to solicitors forming partnerships with non-solicitors, removes the statutory bar to multi-disciplinary practices. I regard those measures as enabling ones, which provide an opportunity to the 165 solicitor profession to develop its own approach to practice with other groups, unfettered by statutory barriers. The measures do not impose an outcome. The Law Society of Scotland remains entirely free to make such rules on the matter as it sees fit.
It will not, however, be possible for the society to make a rule prohibiting multi-disciplinary practices unless that rule has been approved by the Secretary of State, in consultation with the Director General of Fair Trading. The purpose of the Secretary of State's involvement is to ensure that any prohibition is no more restrictive than is necessary in the interests of justice. My involvement is therefore confined to any rule that prohibits multidisciplinary practices in relation to court work. Any other restriction will fall to be considered in due course under the proposed legislation on restrictive trade practices, outlined in the White Paper issued by my right hon. Friend the Secretary of State for Trade and Industry.
There will therefore be no compulsion for solicitors to enter into multi-disciplinary practices, but the statutory barriers to their doing so will be removed. Whether such practices come into being will depend on whether there is a demand for them. That is as it should be where a service is responding to client needs by expanding the choice available.
§ Mrs. Margaret Ewing
Has the Secretary of State taken steps to ensure that multi-disciplinary practices will be monitored? Is not there an inherent danger that the establishment of such practices will result in the same fate for the legal profession as for the accountancy profession —a smaller number of larger practices, with people taking on lucrative work instead of following the ethic of service to the community?
§ Mr. Rifkind
All that we are removing is the statutory bar on multidisciplinary practices. The Law Society will be able to continue to make that a requirement of practice in the profession. The statutory bar on multi-disciplinary practices was introduced only in 1933. It may be of interest to the hon. Member for Glasgow, Cathcart (Mr. Maxton) to know that when the matter was discussed in 1933 a certain Mr. J. Maxton MP criticised the introduction of a statutory framework precisely because it gave a voluntary associationstatutory powers to control and direct the lives of men, the methods of a great profession, powers which should reside nowhere else than in the central Government itself.It is that statutory bar, which one J. Maxton MP imposed, which is being removed, for the reasons that I have given.
Advocates' partnerships are, for the time being, very unlikely to be in the interests either of clients or of the court system as a whole. Clause 25 therefore also requires the approval of the Secretary of State for any rule that prohibits partnerships between advocates. That approval has the effect of putting the rule beyond the scope of any challenge under forthcoming legislation on restrictive trade practices. If, however, in the future the Faculty of Advocates changed its attitude to partnerhips, it could submit an amended rule for approval. I do not see any need for such a change in the immediate future.
The complaints procedures for legal services are also strengthened considerably by the Bill. A new public office of Scottish legal services ombudsman is created, with wider responsibilities than that of the lay observer, which 166 is to be abolished. The ombudsman will deal with grievances about the handling of complaints by the Faculty of Advocates, by the new board and by any body that acquires practising rights under clause 23, as well as by the Law Society of Scotland.
In making those reforms to the complaints procedures relating to legal services, I have attempted to build on those already in place. Given the enhancement of the lay observer's powers, all of which the ombudsman will inherit, and the changes to be made to the statutory provisions on complaints procedures of the professional bodies, I believe that those with a grievance against a solicitor or other legal practitioner will be well placed to obtain a just and reasonable outcome for their complaint.
The remainder of part II contains a number of comparatively minor, though nevertheless valuable, measures, all of which are aimed at extending choice and opportunity both for the client and for the practitioner.
Clause 24 remedies the anomalous situation, which has arisen under community law, whereby Scottish, English and Welsh lawyers are not able to obtain the same recognition as qualified legal practitioners in each other's countries as are lawyers from other member states. A reciprocal measure is contained in the Courts and Legal Services Bill for Scottish lawyers seeking recognition south of the border.
Taken as a whole the measures in part II represent a significant step forward for legal services in Scotland. Part II does not, in any event, force anyone to do anything. It simply widens the opportunities available and removes some outdated and unnecessary restrictions.
Part III proposes reforms to the system of liquor licensing in Scotland. A new code of liquor licensing was introduced in the Licensing (Scotland) Act 1976, which took account of many of the recommendations made by Dr. Clayson. The Government believe that the 1976 Act has stood the test of time, principally because the provisions reflected public attitudes. The proposals in part III of the present Bill build on the existing regime, taking account of trends in those attitudes since 1976 and of practical experience of the operation of the 1976 Act.
In drawing up the provisions in part III, we have had regard to a survey conducted by the Office of Population Censuses and Surveys and a consultation exercise undertaken in 1986 by my Department. Over 2,000 responses were received and all were carefully considered.
There are three themes running through this part of the Bill: enhancement of the more civilised regime that has been in place since 1976; eliminating unnecessary bureaucratic procedures; and tightening up the law in areas where experience suggests that that is needed.
As regards the more civilised regime, clauses 41 and 42 introduce a system of children's certificates which will enable licensing boards to permit children to enter suitable licensed premises in the company of their parents or other adults. The Bill makes it clear that children may enter those premises so as to have a meal in the company of adults. As the provisions relate specifically to meals, the hours when they may be admitted will be limited to the period from 11 am to 8 pm. Clause 42 enables a board to suspend a children's certificate, following procedures that include provision for a hearing, where it considers that the premises concerned no longer constitute an environment suitable for children to be present.
167 The Bill also proposes that the present requirement for licensed premises to be closed in the afternoon between 2.30 and 5 pm, unless an extension has been granted, should no longer apply.
§ Mr. Tam Dalyell (Linlithgow)
Clause 37 raises a matter of considerable delicacy in places such as Bathgate. The Law Society considers thatThere should be equality of opening times between licensed premises, licensed canteens, registered clubs and public houses and that the inequalities in trading hours for off-sales premises, etc. should be removed.Will the Secretary of State comment on the Law Society's views?
§ Mr. Rifkind
As a general principle, I do not take exception to that, but there may be circumstances when that would not be entirely appropriate. We propose to extend the opening hours of off-sales premises on Sundays for precisely the reasons to which the hon. Gentleman refers. Where, however, a distinction is drawn, we believe that it can be justified in the light of the consultation exercise.
The widespread grant of afternoon extensions under the present provisions shows that continuous trading is now widely accepted, and responses to the consultation paper confirmed that. On the other hand, it remains the clear majority view that there should be no addition to the Sunday opening hours of public houses, which run from 12.30 to 2.30 in the afternoon and from 6.30 to 11.00 in the evening. The Bill proposes no change on that point.
§ Mr. McKelvey
In the light of all the representations that have been made, does the Secretary of State consider that it would be sensible to allow those who manage public houses to apply for an extension on Sundays so that the licensing boards could consider their applications and then grant an extension, or otherwise? Why are extensions not allowed for public houses when extensions are allowed for other establishments?
§ Mr. Rifkind
We are tightening up the exemptions in ways that I shall illustrate. We are responding to the results of the consultation exercise, which suggest that, with regard to Sunday, although not to other days of the week, the significant majority view is that people do not wish Sunday afternoon extensions to take place.
We believe that the traditional view—that Sunday afternoon should be a time of peace and quiet when there should be no noise or disturbance from public houses, many of which are located in residential areas—ought to be respected. The Bill reflects the results of the consultation exercise. Naturally, we look forward to the views of hon. Members in all parts of the House on that matter, as on all other issues.
§ Mr. Dalyell
What is the right hon. and learned Gentleman's reaction to the Law Society's worries about the restriction on the boards' discretion? The Law Society refers particularly to clause 38 and states:The Law Society considers that Licensing Boards should be flexible bodies capable of responding to immediate and local needs. The Law Society views with concern attempts in this Clause to restrict the Board's discretion in respect of Sunday opening of licensed premses.This is a delicate issue in West Lothian.
§ Mr. Rifkind
These are delicate issues in various parts of the country. We have tried to establish a balance that reflects what appears to be the views of the public arising 168 out of the consultation exercise. The Bill proposes that off-sale trading on Sundays should be permitted between 12.30 and 10 pm. Trading on Sundays has been permitted elsewhere in Britain for some years, and there is a clear demand for relaxation of the law on that point in Scotland. It is considered to be anomalous that people should be able to buy groceries and other provisions in supermarkets on Sundays, but should be restricted from buying alcohol for consumption off the premises.
On the theme of tightening up the law, the 1976 provisions relating to the grant of regular extensions of permitted hours have given rise to much criticism. 'The proliferation of late-night extensions in some areas has been a source of distress and disturbance to local people and has imposed heavy demands on medical services and the police. A large number of complaints have been received from members of the public and hon. Members. Clause 39 accordingly requires a licensing board not to grant an application for a late-night extension unless it is satisfied that there is a need in the locality for such an extension and that it would be of such benefit to the community as a whole as to outweigh any detriment to the locality.
§ Mr. Darling
The Secretary of State and I know, as Edinburgh Members, that the city centre in Edinburgh has a particular problem because of the sheer number of late-night premises being allowed to open. How will a board determine whether an extension would be of benefit to the community as a whole? Does the right hon. and learned Gentleman accept that there is a difference between the various pubs in any one street? Several may cause no problems, but one may be a source of problems. Would it not be better to allow licensing boards the power to take someone off the road, as it were, until he put his house in order and to make it easier for individuals to object? In that way, we could differentiate between those places that cause no harm and those that are a constant source of irritation to the people who have to live around them.
§ Mr. Rifkind
I note that point. Over the past few years, instead of being the exception, as was envisaged in the earlier legislation, late-night extensions have been the rule. Almost without exception, they have been granted, causing annoyance and disturbance to many residents who, even in the early hours of the morning, find themselves disturbed by noise. A well-run public house can still be a noisy establishment, even if no crimes are committed or no irresponsible behaviour is apparent—there can be singing and other such activity. It is necessary to find a balance.
That is why the criteria that a licensing board is invited to consider include the question whether the need in an area for an extension is such as to outweigh any detriment to the locality. It must be for the board to look at the circumstances in each case, to consider the objections that might be put by local residents and to come to a sensible judgment as to whether the criteria are satisfied. It is our view and that of the vast majority who commented on the matter that late-night extensions, particularly in residential areas, should be the exception rather than the rule, for the reasons that I have given. The ultimate discretion lies with the licensing board.
§ Sir Nicholas Fairbairn
I have some difficulty in following my right hon. and learned Friend's argument. Clause 38(4)(a) states:A licensing board shall refuse to grant or renew a public house or a refreshment licence in respect of the permitted hours on a Sunday if it finds that the opening and use on a Sunday of the premises to which the application relates would cause undue disturbance or public nuisance in the locality, but the refusal of an application on that ground alone shall not prevent the licensing board from granting the application in respect of days other than Sundays.That seems to conflict with what my right hon. and learned Friend said.
§ Mr. Rifkind
Not really. Until now, any application to open on a Sunday has required a separate application to the licensing board. One of the reforms proposed in the Bill is that, if a new public house is to be opened, the initial application can cover both weekdays and Sundays. It is not unreasonable to think that, although there may be a single application covering both Sundays and weekdays, the board should be permitted to make a distinction in respect of Sundays if the circumstances appear to justify it. the clause is drafted in its present form to give boards the maximum discretion.
§ Mr. Graham
Does the Secretary of State accept that under-age drinking is causing a rampaging disaster in villages and towns throughout Scotland? Will he take cognisance of that fact and keep off-sale premises closed on a Sunday? Most of the young people are getting their drink from off-sale premises one way or the other. Will the right hon. and learned Gentleman give folk in the villages and towns of Scotland peace on a Sunday?
§ Mr. Rifkind
The provision in the Bill reflects the strong views that were expressed in the consultation exercise. I appreciate the fact that the hon. Gentleman's view may be shared by the minority of those respondents and, no doubt, he will put forward his views in due course.
§ Mr. Rifkind
I should certainly like to hear the hon. Lady's views in due course. Obviously, there is an opportunity for persons to bring to the attention of the licensing boards any reasons why they believe that the terms of the licence are not complied with. No doubt, if the hon. Lady has particular points to raise, she will seek an opportunity to do so.
Clause 46 provides the police with a power to enter registered pubs at any reasonable time without a warrant. Such a power was recommended by the Clayson committee, and the Guest committee before that, and our consultative exercise revealed overwhelming support for it. There was considerable debate on the matter in another place, and we recognise the concerns of some registered clubs about the exercise in practice of those powers by the police. I have every confidence that chief constables would have due regard for those concerns and would use the powers only where they were genuinely necessary and with due regard to the sensitivities of members and the management of registered clubs.
§ Mr. Dennis Canavan (Falkirk, West)
The clause gives that power to police constables, not just chief constables. 170 Why does the right hon. and learned Gentleman consider the clause to be necessary? Most clubs are self-regulating and organise themselves in a fair, efficient and disciplined manner. If any trouble or law-breaking occurs, the police already have the powers to deal with the situation. In the last analysis, the sheriff may refuse to renew a club's licence. It is utterly unwarranted to give those powers to the police and it will be seen as a gross invasion of privacy. The opposition to the clause comes not just from social, miners' welfare, sport and labour clubs, but—as I know from my conversations with Conservative Members—from Conservative clubs. Many hon. Members are determined to fight the clause. I ask the Secretary of State to say that he will withdraw it.
§ Mr. Rifkind
Before getting carried away, the hon. Gentleman should consider the responses to the consultation exercise, which show that some 67 representations were in favour of the proposal, with only nine against. Among the 67 in favour, there were 21 licensing boards, 18 community councils and others, 15 organisations with health and alcohol interests, five licensed trade interests, four police organisations, two Churches, the Law Society and the Convention of Scottish Local Authorities.
§ Mr. Rifkind
The nine comprised three licensing boards, four community councils, the Scottish Trades Union Congress and the Faculty of Advocates—[HON. MEMBERS: "Oh."] I acknowledge that that is a powerful combination.
§ Mr. Richard Alexander (Newark)
My right hon. and learned Friend must be aware that in that list, no clubs said that there is a need for the provision. Is he further aware that such a provision has never been carried out? Does he agree that whatever happens in Scotland, once clause 46 becomes law in Scotland, the next stage is for clubs to be open to the police in the rest of Great Britain? I assure my right hon. and learned Friend that that would be wholly unacceptable to many Conservative Members.
§ Mr. Harry Ewing (Falkirk, East)
I am grateful to the Secretary of State for giving way before he answers his hon. Friend the Member for Newark (Mr. Alexander) and I hope that my intervention will not prevent him from answering his hon. Friend.
The Secretary of State will be aware of the great deal of discussion about the matter in the other place. In the Licensing (Scotland) Bill 1976, the Labour Government tried to include a provision that gave the police right of entry into clubs without a warrant or without invitation. We were defeated on the Floor of the House, with the right hon. and learned Gentleman voting against us. Can he explain his change of mind?
§ Mr. Rifkind
The hon. Gentleman is correct and he has made the point to which I have just drawn attention. When many organisations that are intimately involved in health and in the prevention of alcohol abuse, such as the Churches, the Law Society and the vast majority of community councils, as well as the licensing boards themselves, join together, that is a powerful combination of points of view.
Licensed clubs are the only licensed premises where the police do not have such a right. There may be arguments 171 against that and we shall be happy to listen to views on it. However, it is right that the Bill should reflect a view that is not merely the majority view, but the overwhelming view of a wide diversity of interests that took the trouble to comment on the proposals.
§ Mr. Menzies Campbell
I was a member of the minority on the Clayson committee who were opposed to the extension of that right. As was pointed out by the hon. Member for Falkirk, East (Mr. Ewing), the Licensing (Scotland) Act 1976, when it was first laid before the House, contained such a provision. If there is to be an extension of police powers, there must be a justification for that extension. The fact that many bodies may be in favour of the extension does not of itself justify it. Is not the right hon. and learned Gentleman under an obligation to demonstrate to the House why there should be an extension of a right that already exists in the form of the right of the police to seek a warrant before a magistrate if they are able to satisfy a magistrate that there is good reason for them to have entry to a particular club?
§ Mr. Rifkind
The hon. and learned Gentleman is correct to make that point. The evidence from the police is that they believe that in a minority of clubs, there is iresponsible behaviour that requires to be investigated by the police. They believe that if they were required to seek a warrant before having permission to enter the premises, they would not be able to prosecute the interests of justice. They believe that just as they have the right to enter a public house without a warrant when they believe that such activities are being conducted, so they should have a comparable right in respect of the clubs.
I fully accept that those are controversial matters and that hon. Members will wish to probe deeply into the justification for the proposal. It represents the overwhelming view of those who took the trouble to comment on those matters.
§ Mr. Rifkind
No. I hope that the hon. Gentleman will forgive me, because many hon. Members want to take part in the debate. I have given way a great deal.
§ Mr. Rifkind
I am sorry. However, I have given way to the hon. Gentleman several times already and other hon. Members wish to speak. The hon. Gentleman will no doubt catch—
§ Mr. Deputy Speaker (Mr. Harold Walker)
Order. The Secretary of State is clearly not giving way. The hon. Gentleman must resume his seat.
§ Mr. Dalyell
On a point of order, Mr. Deputy Speaker. I think that the Secretary of State should give way. He has made—
§ Mr. Deputy Speaker
Order. The hon. Gentleman knows better. He must resume his seat. It is a matter for the Secretary of State and he is clearly not giving way.
§ Mr. Deputy Speaker
Order. Perhaps the hon. Member for Linlithgow (Mr. Dalyell) will seek to catch my eye to explain why later in the debate.
§ Mr Dalyell
I should have thought that, on a point of fact, the right hon. and learned Gentleman would have given way.
§ Mr. Deputy Speaker
Order. Many hon. Members are waiting to take part in the debate. We are getting on. Perhaps the hon. Gentleman, who is very experienced in these matters, might wait to see whether he can catch the eye of the occupant of the Chair and make his contribution then.
§ Mr. Deputy Speaker
Order. I very much hope that the hon. Gentleman will not press me into having to use the disciplinary powers that he knows I possess. Perhaps he will wait patiently and seek a later opportunity.
§ Mr. Deputy Speaker
Order. I hope that the hon. Gentleman will not push me. I hope that we shall be allowed to get on with the debate. The hon. Gentleman knows perfectly well that it is for the right hon. or hon. Member who has the Floor to determine whether he or she gives way. The Secretary of State is clearly not giving way. I hope that the hon. Gentleman will not push me into having to do what I do not want to do.
§ Mr. Dalyell
The Secretary of State is not giving way because he knows that he has misled the House.
§ Mr. Deputy Speaker
Order. If this goes on, I shall have no option but to ask the hon. Gentleman, under the 173 powers conferred on me by Standing Order No. 42, to withdraw from the Chamber for the remainder of this day's sitting.
§ Mr. Deputy Speaker
I am afraid that my repeated warnings to the hon. Gentleman have given me little option.
§ Mr. Deputy Speaker
If the hon. Gentleman also withdraws the allegation that the Secretary of State deliberately misled the House—
§ Mr. Dalyell
I am prepared to do anything you ask, Mr. Deputy Speaker, because I do not want to be thrown out.
§ Mr. Rifkind
Part IV contains a number of provisions with regard to the social work services and to the probation social inquiry reports. It provides for 100 per cent. Government funding of such services in the interests of improving the probation service. There are also provisions relating to fines, including a provision to enable unitary fines experiments to take place with a view to relating fines more closely to an offender's ability to pay. The opportunity has also been taken to correct a deficiency in the Criminal Justice (Scotland) Act 1987 relating to the confiscation of the proceeds of drug trafficking.
Clause 53 reduces the periods of separation required to establish the irretrievable breakdown of marriage. The reduction is from two years to one year where the other party consents to divorce and from five years to two years without the consent of the other party. That reflects the Scottish Law Commission's conclusions that the present periods of separation are unnecessarily long and have the effect of causing many divorcing couples to use behaviour or adultery grounds, with all their attendant unpleasantness and hostility, as a means of obtaining an earlier divorce. The Government believe that the modest amendment proposed by the commission, which received substantial public support on consultation, will meet much of the criticism of the existing law without going beyond what is generally acceptable to members of the public.
§ Mr. Timothy Raison (Aylesbury)
It seems that the object of clause 53 is to make divorce easier. There is a great deal of concern, certainly south of the border, that we are making divorce easier the whole time. There is also a great deal of concern that the results of that increase the sum of human misery. There is more research evidence to that effect. My right hon. and noble Friend the Lord Chancellor has said that we need to make divorce harder. Does my right hon. and learned Friend have any plans, for example, to protect the interests of children more carefully than at present in divorce proceedings?
§ Mr. Rifkind
I can reassure my right hon. Friend. We have followed the advice of the Scottish Marriage Guidance Council. In its submission in support of the proposal, it said:We can appreciate that others may be concerned about the reduction of time in relation to encouraging couples to take marriage less seriously, but we can honestly claim that we, in our work have not experienced this attitude.174 It believes that the proposal will help, as does the Scottish Association of Family Conciliation Services, which said in its submission:It is encouraging to see Scotland leading the way in this legislation.The thrust of the bulk of the advice received is that the current arrangements lead to a somewhat arbitrary and artificial state of affairs, and that is why the reform has been proposed.
The final matter to which I wish to refer is the provision—
§ Mrs. Margaret Ewing
The Secretary of State has referred to the Scottish Marriage Guidance Council and the family conciliation service. What view does the Scottish Office take of the need to ensure adequate funding for the training of counsellors? That is a very important matter, as many solicitors now refer potential divorcees directly to such services. Will the right hon. and learned Gentleman ensure that the funding is available to enhance those services?
§ Mr. Rifkind
That question does not arise directly from the Bill, although I shall certainly look into it.
Finally, let me refer to the provision in the Bill for the High Court, or the sheriff court in Scotland, to receive evidence from abroad by means of live television links. My noble and learned Friend the Lord Advocate stated in Committee in another place that he would intend to bring the provision into operation on the same basis as that for England and Wales—that is for serious and complex fraud, murder and culpable homicide.
As a result of an amendment passed in another place, those procedures will not be available in any trial involving alleged war crimes committed in German-held territory during the second world war, which, as Scots law stands at present, the Scottish criminal courts do not have jurisdiction to try. In respect of this Bill, the Government have decided to accept that position.
Following the defeat of the War Crimes Bill on Second Reading in another place, we have under review the whole question whether our courts should have jurisdiction over such war crimes. It is in that context that we shall also consider whether the House should be asked to remove the restrictions set out in clause 56(3). I would commend that approach to hon. Members who are concerned about that clause. I suggest to them that questions about the availability of the procedures set out in clause 56 are subordinate to the larger and prior question whether there should be jurisdiction, and should not be discussed further in proceedings on this Bill.
§ Mr. Norman Buchan (Paisley, South)
As the Secretary of State knows, a crucial question arises here: what happens if the non-Scottish members of the Cabinet decide to seek rapidly to reverse the decision made in the House of Lords?
§ Mr. Rifkind
As the hon. Gentleman will be aware, the decision of the House of Lords to reject the War Crimes Bill on Second Reading means that the Bill cannot proceed during this Session. The implications of that decision are still being considered, as is the question whether steps should be taken in the next Session of Parliament to deal with the matter. It is in that context that I believe that it would be sensible for the provision to be considered.
As I said at the start of my speech, the Bill is an important measure containing wide-ranging proposals. I 175 look forward to hearing hon. Members' views. It may help if I say that I am arranging for copies of the notes on clauses to be made available to hon. Members for the Committee stage of the Bill.
I commend the Bill to the House.
§ Mr. Donald Dewar (Glasgow, Garscadden)
I beg to move,That this House declines to give a Second Reading to the Law Reform (Miscellaneous Provisions) (Scotland) Bill [Lords] which lacks a coherent theme embracing in one measure widely different and controversial issues; and which does not offer adequate protection to the interests of the consumer, is based on a flawed concept of competition, and fails to face up to the problems of delay and expense in the legal system and the unmet need for legal services.I have never been entirely convinced of the Government's sureness of touch, and there are many examples to support my view. Yesterday, the Government sent the Under-Secretary of State, the hon. Member for Stirling (Mr. Forsyth), on a trip to Genoa to act as the Scottish team mascot. There were pictures in the press of a rather unconvincing—and, to be fair, unhappy—figure clutching a Scottish scarf. In a flamboyant moment, the Scottish Information Office produced a press release under the heading:Mr. Forsyth wishes Scotland team 'buona fortuna"'.All that I can say—I hope, without overstretching the linguistic abilities of the Scottish Information Office—is that a more appropriate phrase might have been "il bacio della morte", the kiss of death.
In any event, the Bill is another example of the Government's unsureness of touch. I hasten to assure the Secretary of State that I do not object to the Bill merely because it is a miscellaneous provisions Bill. I have a number of more fundamental arguments to deploy in my speech.
The Secretary of State will have gathered from the amendment standing in my name and those of my right hon. and hon. Friends that, on balance, we do not much like the Bill. That is not to deny that it contains some good provisions, but the concept and management of the Bill are disappointing, none the less. I ought also to make it clear that I have no objection at all to law reform (miscellaneous provisions) Bills. On checking the records, I discover that I have managed to serve on a very high proportion of the Committees which have considered them in the past 20 years, and most of them I have found extremely interesting and useful. They are gatherings of odds and ends—proposals whose time has come—but by and large they tend not to be controversial.
Here, however, I believe that there is a difference of degree, as this Bill contains a number of provisions which are by any standards contentious and controversial, and which have given rise to fundamental opposition in serious quarters. The most obvious case in point is the part of the Bill which deals with changes in the legal structure—a subject which I believe would have justified a major Bill in itself. We have also crowded in changes in the licensing law and a fundamental change in the divorce law. No one could describe those as nice adjustments on the margin.
The Bill even deals with the provision of evidence in criminal trials. The hon. and learned Member for Perth and Kinross (Sir N. Fairbairn) will remember many discussions of that in our proceedings on previous law reform Bills, when the introduction of new clauses created 176 a major furore. This is a very different sort of Bill and the provisions that have been miscellaneously gathered together in it raise more serious questions than is usual. When we come to deal with new clauses, we shall want to raise a number of matters under the lengthy and extensive long title. The Secretary of State will remember that Lord Macaulay of Bragar moved amendments in connection with the law on diligence and warrant sales, and no doubt we shall wish to return to those questions.
I wish to raise another most important matter about which I feel extremely strongly. This Bill is one of only two Bills to come from the Scottish Office this Session. Presumably the Government are the masters of the timetable, and the timing of proceedings on the Bill means that the Bill will go into Committee on 19 June. As we understand it, the House will rise before the end of July.
§ Mr. Dewar
The hon. Member for Dumfries (Sir H. Monro) raises a cheer at the prospect, and I take his point.
As I understand it, we shall have five weeks for the Committee stage of the Bill and there is no way in which that can be extended, either by agreement or by force. We are literally boxed into that five-week period. I must stress to the Patronage Secretary's representative and the Secretary of State that I do not think that five weeks will be sufficient for the scrutiny of the Bill.
I took the trouble to refer to the proceedings on the previous Law Reform (Miscellaneous Provisions) (Scotland) Bill, which was introduced in 1985. It was a much less substantial Bill, much of which was given over to leases, crofting tenure, the valuation of sheep stock and similar fascinating matters. Of course, it dealt with some important matters and I do not for a moment undervalue it. We had important debates on the detention of children in secure accommodation and on evidence in rape trials, for example. I remember that my hon. Friend the Member for Greenock and Port Glasgow (Dr. Godman) took a particular interest in the latter.
Nevertheless, it was undoubtedly a less controversial and less extensive law reform Bill than the present Bill, yet it went into Committee on 5 January 1985 and did not come out until 26 March. It occupied 26 sittings, many of them lasting well into the night, and more than 1,000 columns of Hansard. Everyone who served on that Committee accepted that its exchanges were constructive and that there was no filibustering. The Committee clearly felt that it needed the time that it took.
I suggest that, as the five weeks of the Committee stage of this Bill tick away, and as we struggle to try to cover the extraordinarily extensive measures before the House, we are likely to find tempers getting frayed. I suspect that we shall also be conscious of the fact that we are not doing the kind of job for which we were elected in scrutinising and considering the full implications of the Bill. I make a genuine protest at the way in which the Bill has been managed; I deeply regret what has happened.
The Committee on the 1985 Bill consisted of 18 members. The Government's representation consisted of 11 hon. Members, all of whom had been elected to Scottish seats. It is a sign of the times that, at the subsequent general election, seven of those gentleman perished and only four survived. Nevertheless, it is unfortunate that the members of the Committee will almost certainly include a number of Members who represent seats south of the 177 border. I make no complaint about that, because I realise that it is now inevitable, but I suspect that hon. Members will regard with curious indifference the intricacies of our debates on Scottish licensing law and similar matters. Again, that underlines this very unfortunate situation. People have a right to be angry about that, and I suspect that many of the bodies which will brief us will be unhappy as well.
The merits of the proposals do not matter at the moment. However, we would all agree that the changes in the legal structure are far-reaching and have raised widespread fears. I suspect that they will not be as adequately scrutinised as I should have liked—or, to be fair, as many Conservative Members would have liked. If they are properly scrutinised, inevitably that will happen at the expense of other important issues. I hope that that point is accepted. It is too late to salvage the situation now, but that is an adverse comment on the way in which the Government have managed Scottish business in this and recent Sessions.
I wish to make another preliminary point before I consider the merits of the Bill. I hope that Opposition Members will be able to take a constructive and reasonably flexible view in our debates on the Bill. The Bill contains a number of issues which have normally received a free vote in the House and we intend to follow that precedent in Committee. For example, I do not intend my views on licensing law to be laid down as a standard that other hon. Members must follow. They may regard me, as they will discover in a few moments, as hopelessly reactionary on those matters. I will be unashamed and may even have to stand the indignity of finding myself on the same side as the hon. and learned Member for Perth and Kinross and against others who are normally my allies.
§ Mr. Foulkes
My hon. Friend means the hon. Member for Tayside, North (Mr. Walker), not the hon. and learned Member for Perth and Kinross (Sir N. Fairbairn).
§ Mr. Dewar
Indeed, the hon. Member for Tayside, North (Mr. Walker)—I do not see why I should be called upon to distinguish between peas in a pod in these matters. [Laughter] I appear to be turning a serious point to laughter.
With regard to licensing law, divorce law reform and other issues, we shall vote according to our individual views. That is the right way to approach a Bill of this kind, and we hope that our example will be followed on the Conservative Benches.
I wish now to consider the specific provisions in the Bill and to make a general charge buttressed by example. In our amendment, we state that we believe that the Government have failed to do what is necessary to protect consumers' interests adequately. I recognise that the Secretary of State will make a case for saying that the attack on the conveyancing monopoly and the arrival of the legal services ombudsman are important advances from the consumer point of view. I would agree with the latter, but I believe that it is a more arguable proposition in the former case.
I have spoken to representatives from the citizens' advice bureaux and the Scottish Consumer Council. They support some of the Bill's propositions, but feel that in 178 many areas opportunities have been missed. They have indicated, for instance, that in English legislation there are a number of consumer protection measures which have not been extended to Scotland. For example, there is the Lord Chancellor's advisory committee on legal education and conduct, with its rather interesting provision in English legislation that eight of the 14 members will not be salaried judges, barristers, solicitors or teachers of law, but ordinary people and presumably valued as such. That provision is lacking in the Bill, and we might consider it in Committee.
In the English version of the authorised conveyancing practitioners board, there is to be a proper balance between the interests of authorised practitioners and those who make use of their services. The Scottish equivalent contains nothing like the same adequate safeguard. There are some points about the powers of the ombudsman position that is to be created, particularly in connection with inadequate professional services, to which we shall wish to return in Committee.
My general point is that there is little in the Bill about access to legal services and the unmet legal need. There is no assault on delay and expense and no attempt to simplify the precise and intricate rules that govern our courts, and in particular the art of building a closer accord, the mysteries of the adjustment and the procedure role. That might be achieved by rules or internal committees, but the cost and delay of litigation is still one of the major problems of our legal system and the Bill does not appear to acknowledge the existence of that problem. In that regard, we simply have clause 32, which allows a solicitor outside Edinburgh to borrow a Court of Session process, which may be a small step for out-of-Edinburgh solicitors, but not for the common weal of Scotland. The legal world will not move as a result of that. There is a feeling of disappointment which I hope the Secretary of State will recognise.
I wish now to consider the specific contents of the Bill, and in doing so I must be careful to declare an interest. I am a partner in a firm of solicitors in Glasgow. Even in these days of advertising, I shall not mention its name, but it can be found in the Register of Members' Interests. Although I have not seen a client in anger for many years, and certainly not with a view to charging him a fee, that is a connection which I value and it is of some relevance because much of the Bill deals with the interests of the solicitors' profession.
With regard to the structure of the legal profession and the so-called attack on the monopoly, I do not believe that the argument has been made. There is a feeling that the Secretary of State has been dragged along in the wake of the Lord Chancellor and that there has not been a great deal of room for a distinct and separate Scottish approach. I accept that competition is important, although there is clearly a distinction in a regulated profession hedged around with necessary and important safeguards and competition in the retail trade or in the general market place.
The arrival of advertising, to which I have referred, and much more importantly, the abolition of scale fees which was long overdue, have undoubtedly had a considerable impact on conveyancing charges. I suspect that they have been more effective than anything that is likely to be created by this Bill.
There will be new animals on the legal scene, including qualified conveyancers who, I presume, are roughly 179 equivalent to the licenced conveyancer who appeared in England in 1985. There will also be a conveyancing practitioner, equating with the authorised conveyancer south of the border. The latter is an institution rather than an individual. In Committee we may wish to draw a distinction between those two rather different phenomena.
So far as I can see, it is inevitable—if it were not so, I should have fought to make it so—that the Scottish Conveyancing and Executry Services Board will equate largely in its powers and approach with the Law Society of Scotland's role in regard to solicitors. In Committee we shall have to look at indemnity, the guarantee fund, the clients' accounts provisions and the qualifications. Many of those matters are fundamentally important.
We cannot ring-fence conveyancing. Someone involved in conveyancing will have to advise his client on many aspects of the law, including the law of contract, matrimonial homes law, family law and tax and financial matters. We cannot ring-fence such matters and we are genuinely interested to learn what is to be included in the code of conduct. I would argue that the code of conduct could, with advantage, have been included in this Bill so that it could be placed on the record.
I am sceptical about the impact of the Secretary of State's new brand of qualified conveyancer because, if we consider the history of licensed conveyancing in England, it is clear that its impact has been very small. The Library has advised me that there are 710 licensed conveyancers in England at the latest date for which figures are available. I suppose 710 sounds quite impressive, although England is a big place. However, only 250 of those are in private practice. The rest work for institutions or legal firms of one kind or another. The Library brief states—if I am not out of order in quoting it:It was originally envisaged that licensed conveyancers would set up in private practice but experience has shown that in the three years or so since they came into existence, licensed conveyancers are using the qualification to seek employment with firms and organisations that have established conveyancing departments.That is not what was intended or what I presume is in the mind of the Secretary of State. However, I believe that many of the difficulties, fears and problems have arisen perhaps for little return, even in terms of the Secretary of State's theories, if we consider the English equivalents. Although I cannot consider the issue at length now, we shall consider in Committee the broader concerns, particularly the potential arrival of banks and building societies on to the scene.
In an exchange, the context of which I cannot recall, the Parliamentary Under-Secretary of State for Scotland said that he had talked to a bank and a building society and that they had assured him that they had no interest in getting into the sphere of conveyancing. That may have been the case, but it does not seem a conclusive argument to judge what is likely to happen.
It is because I recognise that there are attractions in the one-door approach that I worry about it. I recognise the enormous impact that could be made if, for example, a building society said, "I will fix your mortgage, I will buy and sell your house through our estate agency arm and I will also do your conveyancing, all for one all-in fee." That will be particularly attractive to people who do not like the idea of having to fix a mortgage, then find a solicitor and then move on to an estate agency, or in whichever order the tasks are undertaken.
180 Such a one-door approach is bound to cause worries in the longer term about independent advice—those worries are well known and we shall return to them in Committee as the Secretary of State did not deal with this issue fully and effectively—and about the impact in rural areas.
Great concern has been expressed on that score and I will only say at this stage, in the interests of brevity, that the Government case has not been laid out. We must make sure that we are on a level playing field, to use one of the clichés of the afternoon, and not the legal equivalent of kicking up the slope in Easter road for those who have remained in the more conventional conveyancing field.
In the other place, Lord Hughes, who had a distinguished career as a Scottish Office Minister on my side of the political divide and, more importantly, was chairman of the Royal Commission on legal services, honourably recalled in the debate in the other place on 27 March that the Royal Commission had recommended the breaking up of the solicitors' conveyancing monopoly, but that that wasin the state of play as it then was."—[Official Report, House of Lords, 27 March 1990; Vol. 517, c. 792.]He went on to enumerate a large number of changes, including the abolition of scale fees, which had taken place in the interim. He made a point of saying that the royal commission had never recommended the creation of a new breed of conveyancer, and he came to the conclusion that he was persuaded, as chairman of the royal commission, to oppose clause 14, as it was in the House of Lords, being the proposition that had come from the Government. His views as chairman of the royal commission are of considerable interest.
On the whole, I am favourably disposed to the provision on rights of audience. In Committee, we shall want a great deal of information about how the system will work and what is intended. Much will depend on the rules. I hear talk, for example, that a solicitor who wishes to practise in the Court of Session or the High Courts will have to do a tutelage and that examination hurdles will have to be overcome. The rules appear to be firmly in the hands of the Lord President. It will be a matter of anxious interest how those powers are exercised. I do not know whether the Secretary of State is able to anticipate them, but we shall be pressing him in Committee on that.
The issue is of importance, in particular to the Faculty of Advocates, because if some solicitors will retain their position in their own firms of solicitors but will have a right of audience in the High Court—which is where it may be most relevant—there may be occasions, for example, when they will decide that they do not need to employ advocates. There may be occasions when advocates fall out, for example, because of timetable problems in their practices, when the obvious solution will be for the solicitor advocate to take over the case in which he is prepared and the consultations about which he has attended.
From the point of view of the faculty, if that happens on a wide scale, there will be a multi-disciplinary practice, in a sense, because one solicitor partner will be converted into an advocate. That, I envisage, could be a matter of anxious consideration in deciding where the balance lies. We cannot talk intelligently about the subject until we know more about the conditions and circumstances in which it will arise.
Similarly, on the question of multi-disciplinary practices—it is a natural progression—clause 25 is 181 puzzling. I listened carefully to the Secretary of State's remarks and I am not much clearer. I understand that the rules prohibiting advocates from taking part in a partnership either with another advocate or with some other person must be approved by the Lord President and the Secretary of State. I am told that there is an understanding that those rules will be so approved. In other words, there will be a prohibition on the emergence on that type of partnership. I will not say that, in a sense, it is a fait accompli, but the clause on its face is rather deceptive because there is no chance of MDPs emerging in that area.
A worry of mine is that when we come to solicitors, we again have a prohibition which requires the approval of the Secretary of State. His approval may be forthcoming —the right hon. and learned Gentleman will be able to help us on that issue in Committee—but as he pointed out, that is a solicitor offering professional services to the public in relation to any court proceedings, and that gives rise to an odd situation. The implication is that a firm which has no court activities—a purely chamber or commercial practice—will have a right, subject to Office of Fair Trading oversight, to move into multi-disciplinary partnerships. There could be a possibility of a split in the profession, with some firms exercising that right and others being stopped from doing so.
The Secretary of State will appreciate that a rural practice, which might be more attracted to the idea of having other forms of partner, such as an accountant, within its number, could be prevented from doing so because of having a court practitioner among its number, while the narrow and prosperous commercial practice in Edinburgh or Glasgow may be able to branch out in that way. That would be an unsatisfactory situation and I give notice that we shall want to examine it in Committee. We shall also want to examine carefully the effect of multi-disciplinary practices and the prospect, for example, of large accountancy firms buying up large commercial practices in Scotland.
While I must not speak for too long, or I shall trespass on tolerance, I must point out that I am puzzled why, in clause 29, the provision about speculative work, presumably by court practitioners, and an enhancement of fees as a reward for taking on speculative work, has appeared. It takes us into the interesting area of contingency fees.
I suspect that it has appeared—since I am told that it was not asked for—because it duplicates clause 48 of the Courts and Legal Services Bill south of the border and was in the Lord Chancellor's White Paper. I do not like that suggestion, and, if that is the reason, it is not good enough. If the Secretary of State cannot do better than that, it will get a hostile reception.
I merely mention—it is no bad thing to advertise areas of difficulty—that the proposal that a client who has reached agreement in a written agreement about fees should then be precluded from going to taxation in the courts—I understand that to be the effect of clause 29—would be a retrograde step. We might have agreements reached between clients and solicitors which are not even-handed in terms of the expertise with which they are approached. The right to go to taxation is important and should be maintained.
182 I welcome the ombudsman provision, although we shall examine the powers and to what extent he or she will be able to operate above and beyond what is achieved by the lay observer.
§ Mr. Dewar
I am sure that the Committee will give some time to that, especially if my hon. Friend is prepared to serve on it. One obvious answer is to give a right of appeal against sentence to the Crown. I have severe doubts about that, however, although clearly it is worth considering. My own instincts are against it for all sorts of reasons that we may return to.
I hurry on to the licensing provisions. I have made it clear that there will be a free vote on them, so there is no great virtue in talking about them at length. Personally, I believe that Clayson was a success and a major reform which did much to liberalise and civilise consumption of alcohol in Scotland. I should like to see that process continue, but not necessarily by supporting all the proposals in this measure.
Weekday opening from 11 am to 11 pm is sensible and I have no objection to it. The stop-start provision on weekday opening is rather illogical, but I have no enthusiasm for off-licenses on Sundays. I recognise the argument that, if other commodities can be sold, then why not alcohol? On the other hand, I recognise that off-licences, although often small shops, have a large impact on urban areas, since the product sold is consumed in the immediate vicinity of the premises, and we could do without that on a Sunday.
I certainly support the limitation on late licences although I agree that there is an interesting argument about the needs of a locality and the benefits to a community—we shall return to that, too. I also welcome the fact that the Bill of my hon. Friend the Member for Clydesdale (Mr. Hood) on under-age drinking—it was an attempt to limit it—has reappeared, at least in part, in this measure. Obviously, the supermarket provision—the three points of sale—has gone under the second point in the Bill, and we shall want to consider that carefully. I am sure that the Committee will unanimously want to take seriously the problems of under-aged drinking and to put further controls on the statute book.
I am afraid that there is widespread opposition among Labour Members to clause 46 and police entry to registered clubs. The case against that was effectively put in another place by Lord Cawley. There was one of the few votes—it was close—on this Bill when this clause was discussed, and the case for it is not sufficiently made merely by saying that it was recommended by the Clayson and Guest committees. There is a clear distinction between a public house, which members of the public are invited to enter at their will, and a members' club. I am not satisfied that the invasion of privacy that this proposal represents is justified.
My hon. Friend the Member for Linlithgow (Mr. Dalyell) expressed concern in his characteristic way, in a number of attempted interventions, because the Secretary 183 of State was parading the Law Society's support for this idea during the consultation exercise. But Members have received a letter dated 8 June 1990 which says of clause 46:The Law Society views with concern the apparent increase in police power to enter registered clubs without warrant.I do not doubt that the Secretary of State has correctly reported what was said at an earlier stage, but the Law Society has had second thoughts, and I am glad to have made my hon. Friend's point on his behalf.
We believe that warrant on cause shown is a necessary protection for private clubs, and we shall argue thus in committee.
§ Dr. John Reid (Motherwell, North)
I shall be brief, and I do not intend to seek to catch Mr. Speaker's eye later, but I remind my hon. Friend that, back in 1961 and subsequently, when considering licensing in England and this issue of warrants, the then Home Secretary said that one of the most valued privileges of clubs is freedom from police entry without warrant and that that privilege should be retained as it has been in England. Does my hon. Friend agree that the privilege should be retained in Scotland and that that reinforces the case for it?
§ Mr. Dewar
Yes, it sounds an interesting passage, which might be recycled with advantage at a later stage. My hon. Friend makes a serious point about a serious point. We should not be cavalier about giving away rights in the proposed way.
Like most hon. Members, I have a long-standing interest in divorce and hence in clause 53. I remember, back in the 1960s, moving a 10-minute Bill to replace the matrimonial offence with the ground of irretrievable breakdown. It was right to reduce the importance of the matrimonial offence, with all its inherent tendencies to embittering claim and counter-claim. I also accept that the law must reflect social reality—an important principle, easily forgotten. I recognise that the move to two years without consent and one year with consent was recommended after a good deal of thought by the Law Commission—rather quaintly bolstered by a public opinion survey by which Ministers in another place laid great store.
I must record my doubts about this matter and about the speed of change. I am rather surprised by this provision —as was Lord Hailsham, who felt that there was virtue in keeping the basic groundwork of divorce the same north and south of the border. Recently, the Lord Chancellor has made speeches about easier divorce which do not sit easily with this provision. I accept, however, that there is a case for change and I shall support some change. For example, I think that the five-year period during which consent can be withheld is too long. There is a genuine danger—although it can be exaggerated—of undue pressure being applied when it comes to negotiations over possessions and terms, or perhaps even access and custody, when one party refuses to grant a divorce and knows that he has five years in hand.
Meanwhile, the other party may have found a new partner, and children may be on the way or have arrived. Unpleasantness can then arise and an unfair advantage can be given, so I think that the five-year period should be reduced. There are no absolutes in this, but my judgment is that it should come down to three years, probably not to the two years proposed by the Law Commission. It is important that marriage should not be seen as a trap. If 184 both parties are satisfied that the marriage is at an end, and if the courts are satisfied that the proper arrangements have been made for the children, there is a case for thinking in terms of one or two years—it is a difficult judgment. However, I would not go as low as the Government propose on the non-consent provision.
§ Dr. Godman
Given that I am not likely to receive an invitation to join the Committee which will scrutinise the—[Interruption.] In view of what the Whip is telling me, perhaps I should withdraw that remark.
Does my hon. Friend agree that the Matrimonial Homes (Family Protection) (Scotland) Act 1981 needs to be changed in another crucial way? While an order can be obtained under that Act to remove an accused perpetrator of child abuse or sexual abuse from the matrimonial home, the procedure is far too slow and cumbersome. Surely in all such cases it is the accused perpetrator who should be removed from the matrimonial home, not the children?
§ Mr. Dewar
I should like to read what my hon. Friend has said. The Act is an area of some difficulty. There is no doubt that it was an important change in the law and that it was welcome and socially desirable, but there are problems in its operation. One ambiguity in the Act is tackled in this Bill by the matrimonial interdicts and the circumstances in which they have to be reported to the police. No doubt, with my hon. Friend's help, we shall return to that in Committee. One of my regrets is that the opportunities for exploring these matters will be limited by the time factor, but I accept that my hon. Friend has made a perfectly legitimate point for consideration.
I hope that we shall debate video evidence and the Government's approach to it in Committee. I have always seen this as having to do with child abuse, or with the protection of complainers in certain sexual assault cases —especially rape—or with the Roskill report on serious fraud. The clause gives an unlimited right, subject to the judge's satisfaction that it is in the interests of justice. The Secretary of State has said that this will be implemented only for murder, manslaughter and serious fraud—
§ Mr. Dewar
Indeed—I am sorry.
I will have to look at this, but, apart from fraud, these were not the offences that I thought would require video linking. It makes deeper my genuine puzzlement as to why we are taking this approach and why we are being faced with that list. There are problems with video links. Cross-examination will be particularly difficult and there will be problems with the assessment of credibility because television can be a distorting medium.
§ Dr. Godman
Have not the Government missed a fine opportunity to bring us into line with extant English legislation—the Criminal Justice Act 1988? Why have they refused to take this opportunity?
§ Mr. Dewar
My hon. Friend is making, in a direct and sensible way, a point that I was trying to make in a roundabout way, and that is that the list set out by the Secretary of State is not the one that I anticipated. It excludes some of the offences that I should have thought would be those for which the arguments for video linking would be strongest, such as offences involving children and sexual offences. However, these offences appear to be specifically excluded. That is why I said that I was puzzled 185 by the exchanges during the Secretary of State's speech. We shall come to this in Committee. On the basis of what I understand to be the position, my intention is to look for substantial changes. If, despite the difficulties, we are to have index linking, it should come for offences where it is appropriate rather than for these offences.
I am surprised by the provisions dealing with war crimes. I shall not press the Secretary further, but the exception written into the Bill by the other place is indefensible and if it gets on the statute book it will have to be removed. I say that as one who has no enthusiasm for the War Crimes Bill, as I proved with my vote on it. It may be right to pause before final decisions are taken, but to leave the Bill as it is seems, to put it in the kindest way, quaint, and not something that I should want to do.
The Bill covers many subjects—charities, definitions of homelessness, community service orders, probation hostels, the Matrimonial Homes (Family Protection) (Scotland) Act 1981, the Mental Health (Scotland) Act 1984—all of which would justify extensive debate. We shall have to see what we can do in Committee. I am depressed about our prospects for doing so in the time allowed. This is not a good Bill. I do not go as far as the dean of the faculty of law at Edinburgh university, Professor Wolfson, who said that this should have been called the Scots Law (Abolition) Bill. Nor do I believe, as he suggested, that this is the death of the Scottish legal system. I do not even share his fear that the atmosphere in the Scottish courts will be set by slick accountants from Clapham. That is a little excitable.
There are genuine and substantial fears about what the Bill proposes. The way in which it has been handled reflects little credit on the Government. The balance of the argument is against the measure. I have no hesitation in urging my colleagues, and perhaps others, to vote for our amendment.
§ Sir Nicholas Fairbairn (Perth and Kinross)
I speak tonight, I hope without prejudice, but with some experience of the matters covered by the Bill. I regret to say that I find most of it extremely unsatisfactory. I should declare an interest, or perhaps many interests, because the Bill covers so many sectors that it is difficult to know which interest to declare. I am a Queen's counsel, I am a practising lawyer, I drink on Sundays and, from time to time, I subscribe to charity. At the moment, I am not homeless, nor am I intending to divorce my wife. Lest these matters arose in the course of the Bill, which may require a new clause to alter the Scottish calendar, I would declare them in advance.
This is a bad Bill. It is a sandwich of stale bread and poisoned meat. Part I is a thick bit of bread about charities. Part II is a very thick piece of beef which is seriously contaminated. Part IV is a miscellany of breadcrumbs and Part III is no doubt a potion on the licensing laws to help us to swallow the indigestible bits.
I have always had my reservations about theoretical organisations such as the Law Commission reinventing the law as they believe that it should be, but a miscellaneous provisions Bill is useful so as to adjust the law to the reasonable changes and subtle circumstances of our life in all its manifestations in Scotland, from time to time as 186 circumstances dictate. However, the convulsion that the proposals in the Bill will cause and its effects on the legal profession should not be undertaken in a miscellaneous provisions Bill, and certainly should not be embarked upon in the middle of June. I agree with the hon. Member for Glasgow, Garscadden (Mr. Dewar): it is an imposition and an unfairness, principally on Members of Parliament, but infinitely worse on the public and on all parts of the profession.
Part I, dealing with charities, is verbose and complex. Scotland has been lucky, in that charities can merely apply for their various purposes to the Inland Revenue and, if that is proved, that is that. We do not have charity commissioners, although we may have been happy to shelter under their umbrella to a certain extent. However, to take 18 pages and 13 clauses to do almost nothing would be a remarkable legislative achievement if it were to get through.
I am in doubt as to the necessity or purpose of part I, but our system works. If a charity holds itself out to be something that it is not, the Lord Advocate has an automatic remit to exercise the powers that are now taken in the Bill. If there is a prima facie criminal offence, he can investigate and prosecute. Why do we have to take statutory provisions, at such length, to do the same? If the Lord Advocate cannot do that, the Inland Revenue, which probably knows no rules, will do it for itself.
Many of the powers that the Bill will introduce are superfluous. The Government had a great opportunity to make a register of charities with their purposes, so that those who give can know to whom they wish to give and others may know from whom they might seek help. There is not a week in my life in which people do not write to me or ring me up to ask me, "Can you tell me of a charity that might help me with my problem?" The Scots Magazine used to publish such a list, but alas, it does so no longer. If we are to have these vast and bureaucratic regulations, such a list is the least that the public can expect to have included.
Great burdens of administration are newly put upon charities but every penny spent on administration is lost to them. We already know how easily those who run a charity can exhaust its income by so doing. All the administrative requirements to be put on charities as a result of the Bill are likely to absorb a great deal of the money given in good will for purposes which are not administrative.
Clause 5 gives cause for great caution. The Lord Advocate is granted powers of investigation, demand and scrutiny that go beyond the powers of natural justice and any powers that could or should be used or granted to others. I welcome clauses 8 and 9, which seek, however clumsily, to simplify the winding up or the change to a small trust or charity. I doubt whether any of their trustees will comprehend the legislation, assuming that they know where to find it or can read it. They can, I suppose, consult a solicitor, if there are any left, and exhaust the funds of their trust or charity to avoid the necessity to change its purpose.
I am sure that even my severest critic would not suggest that I was an establishment man. No one has been a more consistent critic of the various weaknesses of all branches of the profession—or, I trust, a better sustainer of its strengths. Therefore, I speak with conviction. I am not speaking about part II because I am a lawyer. I am not a lawyer to serve myself. I have spent my life serving the client, and the purpose of the legal profession is to serve 187 the client. I am appalled by the proposals in part II because I believe that they will seriously damage those who seek the help of the legal profession.
Part II encompasses clauses 14 to 17, and takes up five pages of the Bill. It proposes to set up a new quango with grants from public funds to enable banks, building societies and other financial institutions, many of which will have their headquarters and certainly the bulk of their capital and finance forth of Scotland, to act as conveyancers.
The hon. Member for Garscadden was right to say that part II deals with an important matter. I believe that it is extraordinary that we are setting up a quango to qualify people as conveyancers who are not even qualified as lawyers, far less as conveyancers. We are setting up a quango to qualify the unqualified, for the purposes of the great institutions. We are therefore disfranchising 1,100 firms of solicitors to give the great institutions an opportunity. I asked the Secretary of State why the Bill does not mention hairdressers, do-it-yourself shops or others who might care to take on conveyancing. The answer is that they do not have a financial interest in doing so. The fact that the banks and the building societies are the institutions that will undertake the conveyancing means, ipso facto, that the playing field will be one on which no team could beat Costa Rica.
Let us be clear about this. We are to have qualified surveyors who will undertake conveyancing or the legal work involved with the buying and selling of a house in vacuo. Those people will not be asked whether they can tell Mrs. Snodgrass about the implications of putting that house in joint names. That is not a conveyancing matter, but a matrimonial one. Those people will be unable to tell Mr. Snodgrass what happens if he puts the house in his wife's name and she leaves him. They will be unable to say what will happen if, by the slightest chance, the property is split or is subject to independent planning permission. They will be unable to say what happens to a residual feu right. They will not know the answers. They will know none of the general law which affects the purchase and sale of a house. It is not good enough to say that one is a qualified conveyancer.
Do the Government intend to set up qualified divorcers? Will a fellow put a postcard through the sheriff court, or whatever one does nowadays, without knowing the law of succession? Will we have qualified criminal people who know about the criminal law only and nothing about the law of evidence and procedure? It is a most extraordinary concept that people should be trained as qualified conveyancers—I regret that the term QC is thereby debased, as it shares the same initials—to do a tiny scrap of work that is vital to solicitors, but just another bit of the roast for the great institutions.
The most important effect of the Bill is that it will give the institutions the power to buy and sell one's house, survey it, insure it and insure one's life and those of one's children. Such is the power that the institutions will combine. No statute, no interest and no power will prevent that irresistible path. We already know that many building societies say, "If you don't use our surveyor, you don't get your mortgage." Similarly, they say that, if a person does not allow them to sell his house, he will not get a mortgage to buy the next one. No provision thought up by the Lord Chancellor in another place, now in a Bill, will prevent that. No doubt the regulations will say that one must be faced with a lawyer if one wants one. The regulations will 188 say that people must have that right. How many people have the right to have a lawyer in a police station when it is in their interests to have one, and how many just happen to sign a form saying that they do not want one? No provision under the Financial Services Act 1986 can prevent what will be a considerable advantage to the institutions. The Government say that it is all about choice, but it is a crocodile choice, snake choice—we will lick you first and eat you later.
Clause 22 concerns rights of audience. My comments on it are made, I hope, without prejudice, as an advocate who has been in practice for many years and has had the benefit of hon. Members on both sides of the House assisting him as his junior or, in some cases, very junior. Even the Secretary of State has been my junior, but I will not comment on how useful he was on those occasions.
§ Sir Nicholas Fairbairn
Yes, the Lord Advocate has been my junior as well.
One of the most important parts of the law, as of the medical profession, is to have an independent body of experts who have nothing to do with the client except during the case in which they are concerned. A solicitor has frequently told me to call a policeman a liar—to do what the client wants, so that he will be pleased with the solicitor. That is bad agency, but it happens. The advocate will never see the client again. I used to, because I used to get them off.
§ Sir Nicholas Fairbairn
There is a presumption of innocence in the case of my clients, but perhaps not in those of the hon. Member for Carrick, Cumnock and Doon Valley, (Mr. Foulkes).
It is essential and it is shown in the difference between the pleading in the sheriff court and the High Court, that the person who presents the case is not involved in a contractual relationship with the client whom he hopes to keep for all other purposes. It is also essential that, in small towns and small places—even in places as big as Inverness— a solicitor can protect himself by obtaining the opinion and services of counsel.
A solicitor is often busy. People come in and out. One may want to buy a house, one may want to divorce his wife, one may want to make a will and one may have fallen over the pavement. A solicitor may have a hundred things on his mind. To be able to obtain somebody who has only one problem on his mind is an important service. If solicitors and advocates are linked so that advocates are part of practices in Glasgow or Edinburgh, how does one obtain the services of Mr. X? How does one obtain my services? The only way to obtain my services is to instruct the firm of solicitors of which I am a partner, and once a local firm does that, it has lost all that person's business for good. Or a local firm may say that my services are not necessary because it has a frightfully good chap, Mr. McSnod, a marvellous court practitioner. In doing so, it gives a bad service and the public will lose out.
The serious point about interference in the solicitors' profession and the rights of representation is that the client will not have a solicitor service in the countryside, and in the towns the smaller firms will be compromised and the multi-disciplinary practices will pervade. Anyone who knows the differences between their charges will be fearful 189 of the effect. The destruction of the solicitors' profession will remove a considerable prop and structure of rural life and one of the great characteristics of the structure of the legal profession in Scotland.
If we are to change our conveyancing profession, which we say is so much better than that in England, we should do something about the one bad thing in it, which is blind bidding. It is ridiculous that a young couple may bid for 20 houses without knowing whether one has been lost by a penny or whether £20,000 too much has been spent. Each time, they have to obtain a survey and a solicitor. I propose to table a new clause so that all bids for the purchase of a property must be disclosed to all bidders.
I come briefly to divorce. It is a difficult problem but, as the hon. Member for Garscadden said, it is outrageous that the financial benefits of holding out on somebody else for five years should be available. The hon. Gentleman said that he would like the period reduced a little, but I do not see that reducing it to three years would remove the blackmail. Where the parties are separated, a person should be allowed to go to the court and satisfy it that the parties will never live together again. In some cases the court may say that it thinks that the marriage has a chance and the partners must try again for a year. But I do not see why there should be a statutory period of five, three, 10 or two years. Admittedly, the laws of legitimacy have been changed, but if a separated woman is approaching the end of her puerperal capabilities, during that time she cannot give rise to other than an illegitimate child. Therefore, it is wrong to have a statutory time in which one partner can, for whatever reason, hold out on the other.
I have no doubt talked for far too long, but I wish to raise one other matter in the schedules—the appointment of judges to the Inner House or the Appeal Court. Scotland has a collegiate court. Its members eat and drink together every day. They all know one another intimately. They meet one another every day. It is absurd that the Lord President and the Lord Justice Clerk should be able to pack their court as they would like it packed. I will not mention names—nisi nil bonum de mortuis—but many of those who are asleep before whom I have pled from time to time would have made it on merit in the days when they could stay awake.
This is not an improvement. It is also contrary to the terms of appointment of those judges. For instance, it suggests that they have been allowed to be judges when they were not good enough to be judges. We have a Lord President who had never judged anything in his life until he became a judge. He has never been a sheriff principal. That measure is unpopular with all the judges, except, presumably, the Lord President and the Lord Justice Clerk. But let us also be careful about this. All the judges —the Lords Ordinary—sit in the division, civil and criminal, and it is extraordinary for the House to say that people who, according to the Lord President and the Lord Justice Clerk, are disqualified from promotion should sit in the division. That is what it means. That is an unacceptable change in the collegiality of the College of Justice in Scotland.
I am sorry to say that there are so many things about the Bill which I find unacceptable that I would spend the rest of the night if I were to mention a quarter of them. But 190 I hope that that I have given the Government warning that, in almost every part of the Bill, I shall be opposed to their purpose.
§ Mr. Harry Ewing (Falkirk, East)
I am honoured to follow the hon. and learned Member for Perth and Kinross (Sir N. Fairbairn), who made such a valuable contribution to our debate and made me aware of why I would never make a good member of a jury. The hon. and learned Gentleman has persuaded me against the provisions in the Bill which change various aspects of the legal profession. But I am equally sure that, in 10 minutes' time, I could listen to another advocate who would persuade me of the opposite view. That is one of the major dilemmas for laymen and laywomen when dealing with this legislation.
I know the hon. and learned Gentleman well enough to say that, if anyone appreciates that he has spent his life representing his clients, it is me. I know him well enough to tell the famous anecdote from when Duncan Mackenzie was the governor at Barlinnie. He was walking through the grounds one morning in the company of the hon. and learned Gentleman. Several prisoners on exercise said, "Good morning, Mr. Fairbairn." Big Duncan turned to the hon. and learned Gentleman and said, "You haven't been doing so well lately, have you?"
I was interested in the comparison that the hon. and learned Gentleman made with hairdressers undertaking conveyancing. As a house purchaser, I would certainly never dream of asking a barber to do the conveyancing on my house. But to be fair to the hairdressing profession, nor would I dream of asking the hon. and learned Gentleman to cut my hair—although the last haircut that I had might suggest that he had cut it.
I begin with a word of caution to the Minister who will reply to the debate. Where he sits now, I once sat. I recognise some well-known faces assisting him in the Box. When I was a Minister, I dealt with precisely the same kind of legislation with which the Minister is dealing tonight and will steer through Committee. I was responsible for the Licensing (Scotland) Bill in 1976 and the Divorce (Scotland) Bill in 1976. I was assisted by some of those who are assisting the Minister. The word of caution is this. At the subesquent election, the Government were defeated, so I suggest to the Minister that he start looking for another job. I am not saying that those who are assisting him had that effect on me as a Minister, but there is some connection between the two things that I mention.
I speak as a layman. As such, I am not sure that the changes in conveyancing are as draconian as the hon. and learned Member for Perth and Kinross or even my hon. Friend the Member for Glasgow, Garscadden (Mr. Dewar) sought to persuade us. I appreciate that one of the most important things, particularly for a young couple, that people do in their life is to purchase their first house. With house prices as they are now, it is commonplace for a young couple starting out in life to pay £30,000, £35,000 or £40,000 for their first house. As I look around the Chamber, I can see no hon. Members who were in that position when they first started out on married life.
It is absolutely crucial that the financial and legal details of the important transaction of buying a house are absolutely right as far as we can ensure. As we know, consequences on resale and all that goes with it, problems 191 arising from the breakdown of marriage—I shall come to that matter later—and all sorts of other things may flow from the initial transaction. I shall be persuaded to support the Bill during progress through its various stages if I can be convinced that what we are doing as elected Members of Parliament is in the best interests of people, particularly young couples, who make that vital decision.
Hon. Members on both sides of the House will agree that the same risk does not arise when elderly people or people who have had more experience of buying and selling houses purchase a home. Some people move from house to house at regular intervals, so the same risk does not occur. My abiding concern is for a young couple starting out in life buying that expensive item called a house. It is essential that the financial and legal conditions under which that transaction is conducted are as right as we can make them.
With great respect to estate agents, if making the legal conditions of conveyancing right means that it must remain in the hands of the legal profession, I support that. I am here to be convinced. I have an open mind at present. Equally, if I can be convinced that estate agents could handle conveyancing with the proper training and registration, I should consider that possibility too. I hope that that is the way in which all hon. Members will consider this important legislation.
I was pleased to hear my hon. Friend the Member for Garscadden say that many of the issues raised by the Bill will be decided, at least on the Opposition side, by a free vote. This is not a party political issue. The best way to get these matters right is to decide them as we did in the Licensing (Scotland) Bill and the Divorce (Scotland) Bill. Except on two specific issues in the Licensing (Scotland) Bill, which I shall deal with later, matters were decided on a free vote in order to obtain a consensus of opinion.
My hon. Friend the Member for Garscadden referred to the timetable for consideration of the Bill in Committee. There will be no filibustering in Committee, of that I am convinced. For that reason, it would be a great pity—I say this with great respect to the Minister, whom I know to be a fair man—if discussion were curtailed in Committee, as a result not of filibustering but of the date of the summer recess and the formal date for the opening of the next session of Parliament. The summer recess and the date for the opening of Parliament are not good reasons for curtailing discussion in Committee on an important Bill such as this.
I have an open mind on the legal and conveyancing provisions in the Bill. I shall now move on from parts I and II to parts III and IV. Part III deals with licensing and part IV deals with divorce law reform. I intervened during the speech of the Secretary of State and he kindly gave way on police powers to enter clubs either without an invitation or without a warrant. I said to the Secretary of State, as I say again to the House, that the 1976 Bill contained such a provision. Although it was carried in Committee, it was heavily defeated on the Floor of the House and the Secretary of State and the Minister both voted against the proposal to allow the police the right of entry into licensed clubs without a warrant.
The arguments were clear and sound. The argument was led by the late Michael Clark Hutchison, who represented Edinburgh, South. He argued that a club was an extension of a person's residence because there are residential clubs which are licensed. There are such clubs in Edinburgh. Just as the police do not have the right to 192 enter a person's residence without either an invitation or a warrant, neither should they have the right to enter an extension of that person's residence in the form of a club. I agree with those who say that any extension of police powers must be considered much more seriously than is provided for in this Bill.
My hon. Friend the Member for Linlithgow (Mr. Dalyell) may read into the record the statement issued by the Law Society some 60 minutes ago. It is concerned about the proposal in the Bill to allow the police right of entry into licensed clubs. It will permit a constable to enter a club without a warrant or an invitation, full stop. He does not need to suspect that a crime is being committed, that there is unruly behaviour, or that anything untoward is happening. That is not the case with a public house. A police officer cannot enter a public house unless he suspects that some offence is being committed. If this provision is enacted, private clubs will not be on a par with public houses. The most serious consideration must be given to that proposal. I hope that the Minister will take a good long hard look at it in Committee.
§ Mr. Buchan
A similar provision was included in the Broadcasting Bill, in the notorious clause 145, to allow police entry to studios on suspicion—but that was withdrawn by the Government on a United Kingdom basis. At the same time, they are attempting to introduce a similar draconian provision in a Scottish Bill to allow police entry without a warrant.
§ Mr. Ewing
I am grateful to my hon. Friend for drawing that to my attention. He makes an important comparison that should be taken into account.
I am aware that the police in Scotland have long wanted such a power. There is no greater supporter of the police than me, but the mere fact that the police want such powers is not a good reason for giving them. We must consider the interests of the individual who will be affected by the granting of them. I should have thought that, at present, the police, certainly in Scotland, are under sufficient pressure without imposing an additional burden to the duties they are already asked to undertake on behalf of the public.
As to the change in licensing hours, I accept that the regular extension has been abused. I remember the discussions we had with the Scottish Licensed Trade Association, when no one anticipated the consequences for a moment. For the first time, I publicly pay tribute to the late Jimmy Ross from Dundee, president of the association at that time, who did tremendous work in guiding us with that legislation. We were open to discussion with anyone and everyone who wanted to talk to us during its formulation. The association did not anticipate that the regular extension would be used in the way that it has been used under the 1976 Act.
There are residential areas in my own constituency, as there are in those of other right hon. and hon. Members, where regular extensions have caused untold trouble. I have no complaint about additional powers being given to the licensing boards in that respect.
Where I part company with the Bill and, I suspect, with the Minister, is in relation to the dangerous decision to allow off-sales premises to open from 10.30 am to 10 pm on Sunday. I fail to understand the reason for that provision. The Secretary of State said that it was the result of a survey. When, in 1976, I was the Minister with 193 responsibility for reforming licensing laws in Scotland, there was a knock at the door of my home in Leven. On the doorstep was a student from St. Andrews university earning an honest crumb by undertaking a survey on behalf of the Scottish Office on licensing law reforms.
Her first question was to me, "Do you know that the Government are reforming the licensing laws?"—to which I replied that I had read about it somewhere. She then went through about 20 pages of questions about my drinking habits. I will not go into either the questions or answers because you, Madam Deputy Speaker, would not be interested in hearing them. She ended with this gem. She said, "I should tell you that we are not supposed to mention the Government really, because they are unpopular at the minute." She could have told me that again. She explained, "We do not want their unpopularity to rub off on the reforms of the licensing laws." That was the basis upon which that survey was undertaken.
Surveys are notorious for eliciting popular answers to the questions they pose—not accurate or meaningful answers, but popular answers. There is a difference. If the Minister went into Asda in Kirkaldy on a Sunday and asked Mrs. Brown there, "As you have been able to buy your magazine, sugar, jam and pizza, do you think it's fair that you can't buy a bottle of wine?", Mrs. Brown would be bound to reply, "No, it's no fair." We can be certain that Asda would make sure that Mrs. Brown would say it was unfair. I am never convinced by surveys, but I am convinced of the dangers created by the opening of off-sales premises on Sunday.
As my hon. Friend the Member for Renfrew, West and Inverclyde (Mr. Graham) said, Scotland has the most serious under-age drinking problem of any western European country, so it is the height of irresponsibility for the Government to introduce such changes at this time. It has been proven beyond doubt that the source of the alcohol purchased by under-age drinkers is invariably off-licences. That is because of the ease with which youngsters can buy alcohol from them, and, even worse, because of the irresponsible adults who are prepared to buy liquor from off-licence stores and give it to the youngsters outside the shop.
An added feature that I bitterly regret not taking care of in the 1976 legislation is the open selection of alcohol. No one should be able to enter a store and take a bottle of whisky from the shelf and go to a check-out where the cashier sees a queue half a mile long waiting to pay. She is not concerned whether or not the person with that bottle of whisky is 16 or 60. She is more concerned with taking the money for that item. One cannot blame her, because she is under pressure to get that queue down. The open selection of alcohol in the off-licence sections of supermarkets adds to the problem of under-age drinking.
The Minister has no defence. Off-licences are open from 8 o'clock in the morning until 10 o'clock at night—not from 11 am to 11 pm as in other places. They are open that long six days a week, and there is no need to add Sunday opening from 12.30 pm until 10 o'clock at night.
§ The Parliamentary Under-Secretary of State for Scotland (Lord James Douglas-Hamilton)
Is the hon. Gentleman aware that we would very much welcome him 194 on the Committee, where he could use his experience in tabling amendments? Is he aware also that clause 45 attempts to deal with that specific problem? It states:any off-sale premises … or any employee or agent … who causes or permits a person under 18 to sell on these premises alcoholic liquor without that sale having been specifically approved by the licence holder or by a person of or over 18 … shall be guilty of an offence.If the hon. Gentleman has further suggestions, we will welcome them in Committee.
§ Mr. Ewing
That does not deal with the problem of the pre-selection of wines and spirits in supermarkets. We should ensure that wine, spirits and alcohol of any description is treated in the same way as cigarettes and served by an assistant. We cannot go into a supermarket and take cigarettes off the shelf. We have to go right round the supermarket, do all the shopping and then go to a counter and get an assistant to serve us with cigarettes. We should do the same for alcohol. That is one of the things that I hope to suggest at a later stage of the Bill.
Before I leave the subject, the Secretary of State said that the legislation will bring Scotland in line with England. Goodness me, what a thing to say to the House of Commons. The position in England is exactly the opposite, because people can buy liquor on Sunday but they cannot buy groceries, whereas in Scotland people can buy groceries but not liquor. That seemed to be a stupid remark from the Secretary of State in defence of a proposal to open off-sales on a Sunday.
I know what has happened, because it also happened when we put the licensing legislation together. The large multiples have been to the Government and asked them to make such a change. They have said, "We tried to persuade the Labour Government to do it and they wouldn't do it," and the Government have given in. It is as simple as that, and it is not a result of surveys or anything else.
I want the Minister to think carefully about the effects of the legislation. The Daily Record in Scotland has highlighted month after month the issue of under-age drinking and the serious problems that that causes.
I end my speech on the subject of divorce law reform. Once again I pay tribute to a former Member of Parliament who sat on the Scottish National party bench. The Divorce (Scotland) Bill was not a Government Bill, but a private Member's Bill introduced by George Reid —[HON. MEMBERS: "No, it was Ian MacCormack."] I thank hon. Members for that reply in unison. That is the only time that I have heard two Members of the Scottish National party agree. If I have achieved nothing else, I have achieved agreement on the SNP benches. It was not George Reid—it was Ian MacCormack. The Labour Government took the Bill over, because we wanted to ensure that the new divorce law reform was a meaningful measure.
I do not take the view that my hon. Friend the Member for Garscadden took, and I certainly do not take the same view as the hon. and learned Member for Perth and Kinross. I am not happy about the proposal to reduce the time in which one of the parties in a defended action does not agree on a divorce, from five years to two. I am even less happy about reducing to one year the two-year limit which proves the irretrievable breakdown of a marriage.
In such a serious situation, especially where children are involved, there has to be time for second thoughts and for reconciliation. I remember when the Divorce (Scotland) 195 Act proceeded through its stages. One of the favourite songs in Scotland at the time was the "Church, the Courthouse and then Goodbye" by Sidney Devine. If we reduce the time limits as proof of irretrievable breakdown of marriage from two years to one year and the limit when one of the parties does not agree to a divorce from five years to two years, we are moving rapidly towards the church, the courthouse and then goodbye. That is no basis on which to build a stable society.
§ Dr. Godman
Do my hon. Friend's most serious reservations about that issue hold true for childless couples?
§ Mr. Ewing
I take the view that there has to be time for second thoughts and reconciliation. Yes, I still take the view that I have explained.
In Committee, I hope to move an amendment to the Army Act 1955. Recently, I have been involved in a case in which Falkirk sheriff court made a maintenance order against a staff sergeant in the Army, but his commanding officer, under the terms of the Army Act 1955, has set it aside. Hon. Members may not be aware of this, as I was not until it was brought to my attention. As a result, one of my constituents and her two children get no maintenance because the staff sergeant's commanding officer considers that he should not be paying it. Falkirk sheriff court took the decision that he should, and set the level of maintenance. It sent the order to the commanding officer. He insisted that it was delivered to him personally by a court officer, who was sent down from Falkirk to the barracks in Manchester to deliver it.
I have taken the matter up with the Secretary of State for Defence—who is a member of a family Government, we are told—only to be told in a reply today that the Government are upholding the commanding officer's decision to set aside the court maintenance order. That is an absolute disgrace, and I hope that we can deal with the matter in Committee.
As the House will gather, I have some serious reservations about the Bill and I hope that we can effect changes as it goes through its various stages.
§ Sir Hector Monro (Dumfries)
After the debate so far, one thing is certain—we shall have an interesting Committee stage. I agree with the hon. Member for Falkirk, East (Mr. Ewing) that this is not, in the main, a party political Bill, and there are probably no political runs in it. That is why in some ways it is a pity that the House is not consulted before legislation. Would it not be much better to discuss some of the issues in the Bill in the Scottish Grand Committee rather than to consult interested parties who give predictable answers, we should then get a general view from hon. Members representing constituents who probably have a much less biased view than those people who were consulted officially.
§ Sir Nicholas Fairbairn
Forgetting about the Scottish Grand Committee, there is a perfectly good procedure, which was used on the Family Law Reform Act 1969, in which evidence is given about the desirability or otherwise of every clause of the Bill. That procedure was used only once, for that Act, and it ought to be used for this Bill.
§ Sir Hector Monro
I am grateful to my hon. and learned Friend for his knowledge of that procedure. However, we 196 are debating a broad-reaching Bill which covers a whole host of topics. It is difficult to give a coherent Second Reading speech with a theme. One has to jump about almost as though one were in Committee.
I share the view of all hon. Members that we are setting out a remarkably tight schedule for the Committee stage. It would be a pity if we had to have debates through the night when they should be taken at a reasonable pace and hour so that the general public can follow them as well as Members of the Committee.
I am also concerned, although it is too late to do anything about it now, that the title of the Bill is as wide and as long as it is. One could discuss almost any subject to do with the law under that title, and that will not help to achieve a concise ending in Committee.
I agree in general with many of the provisions of part I and give general support to it. However, I have many doubts about the legal services provision. So far as I recall, I have had no constituency correspondence in recent years in favour of change, whether on the issue of solicitors and advocates or on conveyancing. The general public are much less concerned about the legal profession in Scotland than the Bill gives us to understand. They are not expecting such dramatic changes to the profession. I wonder, therefore, whether the heartache is worth the eventual gain.
Conveyancing is vital to the legal profession. I listened with great interest and concern to the views of my hon. and learned Friend the Member for Perth and Kinross (Sir N. Fairbairn), who speaks with exceptional experience of the law in Scotland. There is competition now in conveyancing. Solicitors say that clients ring up and ask, "What fee will you charge to convey this house?" The scale fees are virtually disregarded. Competition comes in the form of the solicitor's response—what he will charge to carry out a conveyance. That competition is important. My lion. and learned Friend the Member for Perth and Kinross and even my right hon. and learned Friend the Secretary of State referred to the conflict of interest which is highlighted in many of the admirable papers that we have received from the Law Society.
Solicitors give advice on conveyancing, over and above the legal requirement. They give first-time buyers advice on setting up house—whether it should be done in partnership. They give clear and independent advice on insurance. Naturally, insurance commission is important to the insurance company. One has to ask whether institutions will use conveyancing as a loss leader. The package deal which may be offered does not necessarily include the important legal advice that a father, if he were legally qualified, might give his son. The family solicitor's advice to his client is all-important.
The provisions may require there to be a face-to-face relationship with the client. That face, however, will have removed itself to Edinburgh or Glasgow, 50 or 100 miles away, when the chips are down and the removal van arrives. Who, then, will deal with the problem about electrical fittings and the fact that the fireplace has been removed? And what about the porch at the back? All the problems concerning a property can, however, be resolved at relatively short notice by the solicitor, who is within a mile or so of his client. One may go to a building society or chartered surveyor and sign a form because it looks like a simple and complete package deal, but these matters 197 ought to be dealt with slowly and carefully, with the advice and help of a solicitor. We should take great care when legislating to deal with this problem.
The hon. Member for Moray (Mrs. Ewing) highlighted the fact that if solicitors do not have an important part to play in Scottish conveyancing they will lose between 60 and 80 per cent. of their income. If they do not have that income, they will be unable to subsidise other aspects of their practice. They give advice on community matters, which is absolutely crucial. We shall be removing a stable and important aspect of professional advice that has often been given free to the community. That help will not be there if the bread-and-butter income from conveyancing disappears.
The Government must examine that aspect, particularly in the rural context. It will be difficult legally to define what is meant by the rural aspect. What is rural and what is urban? Would one describe Inverness as a rural town? I believe that it is, but others might say that it was too large to be considered a rural town. The same might be said of Dumfries. Would one have to consider only solicitors in small towns, with populations of between 5,000 and 8,000? My right hon. and learned Friend the Secretary of State will have to consider carefully all the aspects surrounding conveyancing. It may be a major stumbling block in Committee. I am unhappy about the proposals, and I shall expect substantial changes to be made upstairs.
We are told to wait for the regulations that will govern the new conveyancing body. The regulations are not contained in the Bill. Will they be put before the Committee? I am not inclined to give a blank cheque in the hope that the regulations and the guidance will be all right. We ought to have before us in Committee a draft of the regulations so that they may be considered with the clause.
I do not believe that the building societies will be particularly enthusiastic about conveyancing. That may be so in the cities, but it will be less so in rural areas. We should not be prepared to take the risk. Building societies are responsible institutions, but Scottish solicitors are infinitely more important when it comes to conveyancing. We must bear that point in mind when we deal in Committee with conveyancing.
I note that a legal services ombudsman will replace the lay observer. That person must be provided with a great deal more power than the lay observer enjoys. The lay observer was outstandingly good, but invariably she ended up saying, "You are absolutely right and I am absolutely right, but I have no power to go any further." The ombudsman must be able to give advice and then ensure that the particular aspect of the legal profession's failure which has been submitted to him or her, as ombudsman, is rectified. The ombudsman must be an effective trouble-shooter.
I share the disquiet of the hon. Member for Falkirk, East and other hon. Members about the licensing laws. I served on the Committee that considered the 1976 Bill. Dr. Clayson is one of my constituents. He is an exceptional personality who has not received the recognition that he deserves for the changes that he brought about in the Scottish licensing laws. We must proceed cautiously in Committee. Many of us have received petitions and correspondence from the Kirk Sessions.
198 There is great concern about the off-licence issue as it relates to supermarkets. How right the hon. Member for Falkirk, East was to say that it is the easiest thing in the world to dodge the age rule in a supermarket. When a lot of people are waiting to be checked out, no one is going to haggle about whether someone is 16, 17, 18 or 19 years old. I welcome the idea that a voluntary identification card should be carried by people who are on the borderline. That would prove their age, but we ought not to encourage young people to drink. The provision allowing alcohol to be available at off-licences on Sundays will make control that much harder. We must watch that closely. I welcome the measure on late night drinking as virtually all of us have dealt with constituency cases in which a great deal of noise near hotels and pubs has caused dissatisfaction to neighbours. I am glad that the Bill take that into account.
However, I approach clause 46 with strong reservations, indeed opposition. It involves the powers of entry into private clubs. Reference has been made to what the Home Secretary said in 1961. That seems to hold as soundly now as it did then. Private clubs have held the cherished position of being an extension of one's home, as the hon. Member for Falkirk, East said. However strongly I support the police, as a past chairman of the police committee in my area, I believe that those powers are unnecessary and go too far. If the police are suspicious, they can get a warrant. As has been said, the legislation would put the clubs in a more restricted position than the pubs. Surely that cannot be right. We shall have to examine the clause extremely carefully. All the signs are that there is united opposition to clause 46, it is unlikely to have a very successful passage through the Committee.
§ Sir Nicholas Fairbairn
Under that part of the clause, the police would have the right to enter my hon. Friend's home to see whether he had sold me a drink rather than offered me one, even if neither was likely.
§ Sir Hector Monro
My dear hon. and learned Friend pushes me to the limit at times. He knows that there is a standing invitation and a bottle of Laphroig waiting for him whenever he wishes to come to my home—and what a delight it is when he and his dear wife visit.
Somewhat inappropriately, I now move on to divorce. Here again, we have to make haste very carefully. I am concerned that the proposed legislation gives a general impression that divorce will be easier. If the limit is down to a year, some people will say, "Why the hell should we get married? Let us wait a year and see how it goes and we may save the bother of getting a divorce." The sanctity of marriage is so important. I should like there to be a tremendous lead from the Church on divorce, but we do not seem to be getting one. I am most concerned that children will be put in a more serious position than they are now when their parents break up.
I agree that sometimes marriages are irretrievable, but that should be judged by the courts and not decided on a time scale set out in legislation. Everything should always be considered on balance by people with mature judgment. Instead of saying that the Bill states three years, two years or one year, they should consider how best to achieve, first, a reconciliation, secondly, responsibility to the children who will be left in the worst position of all and, thirdly, whether anything can be done to stop the marriage breaking up. The Bill makes it apparently easier to get a divorce, and that is the last thing that we should be doing. 199 Divorce should be the last point of no return and not the first means to break up a marriage and forget all about it. Obviously there will be detailed debate on that in Committee.
There is much to do, and so that my hon. Friend the Minister knows where I stand before we reach Committee, it is no use expecting my support for implementing the war crimes legislation in any form, as I share the view of the House of Lords that it is inappropriate in 1990. I accept that it will have to be reconsidered in the next Session, but we must not have any paving legislation in the Bill, which might enhance the chances of war crimes legislation succeeding in the future.
There are good things in the Bill, although I had to look rather hard to find them, but by and large my hon. Friend the Minister must have gathered from both sides of the House that the proceedings in Committee will cause a great deal of interest in Scotland.
§ Mr. Menzies Campbell (Fife, North-East)
Like the hon. and learned Member for Perth and Kinross (Sir N. Fairbairn), because of the nature of the Bill, I have a number of interests to declare. First, I am a trustee of a trust that will require to give information if part I of the Bill is enacted. Secondly, I am a member of the Faculty of Advocates, whose interests may be thought in some respect to be affected by part II of the Bill. Thirdly, in regard to the provisions on licensing, I was a member of the Clayson committee whose report formed the basis of the Licensing (Scotland) Act 1976 to which reference has already been made. Since then I have acted for and advised individuals and companies that might be thought to profit if the provisions of part III are carried into effect.
When the hon. and learned Member for Perth and Kinross was discussing issues which, although not directly related to conveyancing, might inevitably have some significance for people who are buying and selling houses, he put his finger on one of the central weakenesses of the proposed legislation. I do not wish to add to what he said, save one more example.
One of the issues that concerns people more than any other is how their property should be disposed of after their death. If the terms of a disposition of inheritable property are drawn in a particular way between a husband and a wife, the effect of the disposition may be to create a contract between them that prevents either of them from disposing of his or her share of the house. That is a complicated matter. The terms of the clauses of disposition require to be drawn extremely carefully. I find it difficult to conceive of how someone who has achieved the ungiddy heights of a licensed conveyancer will know precisely in what language to couch the disposition so as to preserve, if the parties so wish, the right to dispose of their own property as they please upon death.
As speeches so far have demonstrated, most hon. Members find the Bill profoundly disappointing. I share that disappointment with its form, because issues of such substantial principle should not be dealt with in a Bill that has as its centrepiece the notion that it deals with miscellaneous provisions. I am disappointed in the content of the Bill because, in spite of the very effective promptings of the noble and learned Lord Morton of Shuna, who now sits on the Cross-Benches in another place, the 200 Government have still not realised that they are proceeding in part I in a way that is quite inimical to the law on charity in Scotland.
A consequence of the provisions, which the Secretary of State did not deal with when I intervened, is that, if the trustees with responsibility for a village hall—heaven knows, there are many village halls up and down the length and breadth of Scotland—try to run an event that they describe as being for charity because it is for the purpose of replacing the roof of a village hall, they may be the subject of prosecution and ultimately conviction because they are holding themselves out to be a charity, although they are not a recognised body. If that is the abuse to which the Government are directing the provisions, they have a most peculiar idea of what constitutes abuse.
I am also profoundly disappointed in what is omitted from the Bill. Nothing in the Bill will extend real and effective access to legal services to members of the public who do not at present enjoy that access. The Bill is a miscellany, as its name demonstrates. It has all the appearance of an overfilled net brought to the surface after a trawl through the filing cabinets of long-resigned Scottish Office officials. Cowperthwaite and Sharp may have gone from the Scottish Office, but their names live on for ever.
I suppose, perversely, that one might welcome the Bill because it shows the inadequacy of Westminster as a forum for the proper scrutiny of Scottish legislation. In some quarters, the Bill may be regarded as an eloquent argument in favour of a Scottish Parliament, not least for the following reasons. A provision such as clause 53— which makes a radical change in divorce provisions in Scotland and is a distinctive change from divorce provisions south of the border—should not be embarked upon without careful scrutiny. The Secretary of State told us that he was relying to a large extent on public opinion in making some of the provisions in the Bill. I challenge him to test public opinion on whether any divorce should be possible with consent after the expiry of a period of 12 months. I challenge him to test public opinion on whether divorce should be possible after two years without consent. I suspect that the public would be antagonistic towards the Government's proposals.
§ Mr. Dewar
Although I have some sympathy with the hon. and learned Gentleman's view, I think that the Government would rely on the public opinion poll in the Law Commission's report which took a sample of nearly 1,000 people and found a good deal of support for their proposals, in that sample at least.
§ Mr. Campbell
As has been pointed out, much depends on the terms of a survey and the way in which it is carried out. I suspect that the majority view of the people of Scotland is that, after 12 months, it should be possible for the two parties to say that they are satisfied that their marriage has irretrievably broken down and that, consequently, they are entitled to go to court and have a rubber stamp put on the dissolution of that marriage. No doubt we shall all wish to return to that matter in Committee.
The liquor licensing provisions may be among the most controversial. I welcome the procedural improvements, but the main issue principle is whether off sales premises should have an automatic right to open on Sundays. Why 201 do the Government think that that is appropriate when the Bill preserves the situation whereby public houses are required to make a special case for opening on Sunday? If it is necessary for a public house to satisfy a local licensing board that it is desirable that its premises should be open on a Sunday, why not leave to the local licensing board the issue whether an off-sales premises should be open on a Sunday?
There would be a great range of circumstances throughout Scotland, but there would also be a great range of circumstances throughout the jurisdiction of particular boards. There may be compelling reasons why off-sales premises should not be open on a Sunday in Glasgow, Garscadden. However, there may be good reasons why such premises should be open in Renfield street in the centre of Glasgow. That should be left to the discretion of the local boards.
§ Mr. Harry Ewing
That is a dangerous approach. With respect to the hon. and learned Gentleman, one of the attractions bringing big supermarkets to the massive retail parks throughout Scotland and making them decide to build in Dunfermline rather than Kirkcaldy would be advance information that their licensed section could open on a Sunday. The hon. and learned Gentleman's approach is not responsible.
§ Mr. Campbell
With the greatest respect, it seems to me that the hon. Gentleman's approach is to deny the discretion of local licensing boards. As he was the architect of the legislation that forms the centrepiece of the liquor licensing legislation in Scotland—in which licensing boards were given enhanced powers over the licensing courts that they replaced—I should have thought that he would be happy for discretion to rest with those who are, after all, the locally elected representatives. A licensing board is not a creature of the district council, but it is composed of district councillors. In those matters, one is far better employed in relying on the good sense of those who have been given that responsibility, rather than endeavouring to lay down blanket provisions throughout Scotland.
§ Mr. Campbell
I should like to continue because I am conscious that others wish to take part.
As I pointed out to the Secretary of State in an intervention, I was in the minority on the Clayson committee on the issue of the police right of entry into clubs. The Clayson committee's report bears re-reading because it sets out the arguments in favour and against with great clarity. This provision—the hon. Member for Falkirk, East (Mr. Ewing) would perhaps agree on this matter if we cannot on others—was originally in the Licensing (Scotland) Act 1976, but the House of Commons, in its wisdom, voted against it. If there is to be a change in the legislation, we are entitled to know the objective circumstances that give rise to the need for it. The fact that 70 or 80 organisations may have expressed a view that the law should be changed in this way is no justification for doing it, unless what they claim is capable of objective assessment.
202 We are entitled to ask the Government the number of occasions on which it can be claimed that the proper administration and supervision of clubs have been prejudiced by the failure of officers of the rank of police constable to enter such clubs at will, especially as a warrant can be obtained and, in my professional experience, is usually capable of being obtained on not very substantial information. Such a warrant can be obtained and be effected at short notice. Thus far, we have heard no justification that is sufficient to make us give sympathetic consideration to extending police powers in a matter where so far it has not been demonstrated to be required.
One clause will allow the chief constable to make "observations" and requires him to intimate and give notice of those observations in a particular way, but it gives him a fallback if he fails to do so and allows a licensing board to take account of those observations. I have never understood why police authorities, which have licensing departments, should have placed upon them an obligation in terms of the form of notice and information required, but they are given a ready-made excuse. That matter arises in relation to objections under section 16 of the Licensing (Scotland) Act 1976, and I hope to return to it in Committee.
I do not oppose the extension of rights of audience, but in this matter access for the public to legal services is much more important than whether solicitors should have access to the supreme court. The hon. and learned Member for Perth and Kinross touched on a matter that the Government have not yet properly addressed. The legal relationship between a client and an advocate is that of a mandate and is separate and distinct from the legal relationship between a client and a solicitor. A solicitor is bound by contract to his client; an advocate—by that I mean a member of the Faculty of Advocates—has a mandate. Until the time it is recalled, a mandate entitles the person in whose favour it has been given to do as he thinks fit in the context of the legal case in which he is engaged. It entitles an advocate to settle a case even against the wishes of his client. That right is rarely exercised, but it demonstrates the fact that the essential relationship between client and advocate is different from the relationship between client and solicitor. That matter may have consequences beyond those to which the Government have given consideration in the Bill so far, and I hope to return to it in due course.
The point should be made in relation to Scotland that we are dealing with a relatively small scale. There are about 250 practising advocates at the Scottish Bar. In recent years, as many as 80 per cent. called in any one year have qualified as solicitors before coming to the Bar. The right hon. and learned Member for Monklands East (Mr. Smith) did that, as I did myself. The former shadow Lord Advocate, now the noble and learned Lord Morton of Shuna, who sits on the Cross-Benches in the other place, also qualified as a solicitor. There has been an easy movement between the solicitors' and the advocates' branches of the profession in Scotland. Although I do not oppose the extension of the rights of audience, I have some concern and reservations about just how effective that apparently radical change will prove to be.
It may be a result of my inability rather than the draftsman's, but I cannot understand the provision on partnerships for advocates, which seems to be put in the most convoluted way. I believe that there is no justification in a country the size of Scotland for there to be 203 partnerships between advocates at the Bar. For that reason, it is essential to maintain the largest number of wholly independent practitioners. That is why, on occasion, I have appeared on behalf of the Secretary of State one week and against the Secretary of State the next. If I were locked into a partnership, it might be difficult for such independence to be exercised. I welcome the assurance of the Secretary of State in relation to legally aided persons. He will know that that matter has caused some concern. It is a considerable relief to know that the right of a legally aided person to be represented in the way that he or she chooses will not be prejudiced by the proposals.
I am very suspicious of the proposals in clause 23, which could be construed as giving rights of audience to professional or other bodies to practise in every court in Scotland and as giving them immunity from liability for negligence. In Committee, I hope that we can test at some length the justification for that outwith legal services and those who are legally qualified.
Most significant for those of us who represent rural areas is the provision of legal services in such areas. The reservations have already been expressed, so I need do no more than associate myself with them. There is real apprehension that the overall provision of legal services will—not immediately, but inevitably—be affected if the proposals on executries and conveyancing are carried through. There is real apprehension about the strength of the financial institutions, and of nationally based and organised estate agents. There is also real apprehension about the possibility of conflicts of interest. When people, especially young people, make their first important purchase and legal transaction, it is right that they should have the most independent advice available. The Secretary of State must by now have realised that these matters will be brought to his attention time and again. They will be the touchstone against which every line of the Bill will be tested.
It is not understood that in rural areas, conveyancing is often used as a form of cross-subsidy. It is not frequently understood that in rural areas, solicitors often perform for honoraria of £250 the responsibility of secretary of this institution or of trustee of that, or that they may run something else or factor at levels that can hardly be described as economic. They do that because they take their service and their fee income in the round. The hon. Member for Dumfries (Sir H. Monro) suggested that that part of the fee income may be as high as 80 per cent. If a substantial part of that income is at risk, the provision of such service pro bono publico will be put at risk and the quality of life in rural areas may be severely prejudiced.
§ Mr. Rifkind
Does the hon. and learned Gentleman appreciate what he has said? I do not necessarily disagree with his point. He began by saying that it was important to protect the interests of young married couples in their most important purchase, but he has just told us—and this may be accurate—that young married couples pay a conveyancing fee that is used to subsidise other legal services provided by solicitors. Does not that suggest, if the hon. and learned Gentleman is correct, that the level of conveyancing fee is higher than it should be to provide the service to those of his constituents whom the hon. and learned Gentleman is trying to help?
§ Mr. Campbell
As the Secretary of State knows, there is now competition among solicitors in those matters. It must be well known to him that in many cases, solicitors offer and give discounted fees, especially to people who are starting out, for the very reason that they hope that if they do so, they will continue to have their business throughout their lives. They hope that they will draft their wills and that in due course, if they survive long enough—
§ Mr. Campbell
Yes, solicitors may even do their divorces and wind up their estates. As I said a moment or two ago, the truth is that solicitors take their fee income and their obligations in the round. If we enter on this new course, we may find circumstances in which the services provided by solicitors—often at uneconomic rates in rural areas—are withdrawn.
§ Mr. Bill Walker
Does not the hon. and learned Gentleman agree that all people in business take their services in the round and that, if the core of their business is the most profitable part, it could be said to be subsidising other parts of the business? It is the fact that the business is an entity that brings people to it in the first place.
§ Mr. Campbell
I do not for a moment dissent from that point.
Looking at the Bill as a whole and especially at the measures that deal with the provision of legal services, one is driven to the conclusion that it is neither a considered nor a spontaneous response to the needs of the public identified in Scotland. One feels entitled to make the judgment that, in many respects, it seems to be a slavish response to events in England. It is frequently forgotten that part of the provocation for a change in the provision of legal services in England and Wales arose not from the structure of the legal profession, but from the different structure of the courts.
As the Secretary of State told us, in the sheriff court, in its civil jurisdiction in Scotland, one can sue for any sum of money. One may sue for £20 million if one chooses to do so. In its criminal jurisdiction, an accused person, if convicted, may be sentenced for up to three years. The consequence has been that solicitors in Scotland have done a substantial range of work that was denied to them by the nature of the court structure in England and Wales. That is why I believe that the Bill is a slavish response that could not be regarded as either considered or spontaneous.
Access to a lawyer for the public in Scotland should be not simply to any lawyer, but to a proficient lawyer. The Bill does not do sufficient—indeed anything—to widen that access. I am driven to the conclusion that in this matter, the Government have no feeling for the law in Scotland. That is why I and my hon. Friends will decline to give the Bill a Second Reading.
§ Mr. Bill Walker (Tayside, North)
Unlike the hon. and learned Member for Fife, North-East (Mr. Campbell), who declared an interest, I declare a lack of interest. I have no legal interests or training. I am not a trustee of any charity. I have no intention at present of buying or selling a home. I do not drink alcohol and I have no intention of taking up the drinking of alcohol, although there are limes when I feel that some things could drive one to drink. I find 205 that I have little enthusiasm for the Bill, and in that sense, too, I declare my lack of interest. Yet this is a Government-sponsored Bill, and I am a loyal supporter of the Government.
§ Mr. Walker
I have never been called that before.
I am aware of the politically sensitive nature of some of the matters dealt with in the Bill, and I realise that the Committee stage will be followed closely in Scotland. The Conservative members of the Committee—at least those of us who represent Scottish constituencies—will therefore expect Ministers to take on board the views that we express in Committee. We shall expect any changes in the Bill adequately to take account of Scottish views. I caution the Government that the limited time available for the Committee stage is likely to highlight the need for them to be sensitive to the views expressed. In my view, it would be most unwise to attempt to steamroller the Bill through its Committee and Report stages.
I welcome some of the changes proposed with regard to charities. Some changes are necessary, although I wonder whether the Government have not gone overboard with what they have attempted in the Bill. We shall discover whether that is so during our detailed study of the Bill in Committee. Nevertheless, some aspects of charity operations in Scotland certainly needed to be looked at, and the Government were right to recognise that.
On part II, I should first make it clear that I believe that it is right that the public should have choices and options. But it is also right to examine the present state of affairs before determining whether simply to free up the arrangements. We are not dealing with the high street here. I am a great supporter of what happens in the high street, and a great supporter of the marketplace, but when it comes to legal advice and legal services we must be very careful.
After all, if one makes a mistake while shopping in the high street, the consequences are not likely to be all that severe, even if one is temporarily inconvenienced, but if one makes a mistake during the purchase of one's home, or if one is given detrimental advice, one can end up with a problem which remains throughout one's life. That is one of the awful problems that we face. I look upon the provision of legal services as I look upon people's ability to fly aircraft. We must provide a regulatory framework properly to protect the interests of customers. There is no question but that we shall have some interesting debates in Committee on part II. I accept that the Government are determined to provide a level playing field, and our debates will show whether they have succeeded.
Whatever the outcome in Committee, I make no apology for saying now that I want to ensure that my constituents in North Tayside have access to solicitors within an acceptable distance. People living in Aberfeldy or Blair Atholl should not have to travel to Perth or Edinburgh to obtain the advice that they require when buying a house. In one of the most interesting and stimulating speeches that he has made for a long time, my hon. and learned Friend the Member for Perth and Kinross (Sir N. Fairbairn) dealt with the legal matters in considerable depth, and his contribution was later 206 enhanced by those of other hon. Members. I repeat that I have no legal training. My only experience has been as a customer—as one of those making use of the services.
I think that every hon. Member will acknowledge that the profession about which we receive the most complaints is the solicitors' profession and we must all welcome the fact that the Bill will establish an ombudsman. I hope that the ombudsman will have teeth, because there is no doubt that, when things go wrong or when solicitors behave improperly, the consequences for individuals can be enormous.
On part III, I repeat that I have no interest in the consumption of alcohol, although I make no apologies for having a great interest in the well-being of the whisky industry. I hope that the Minister will be able to assure me that, under the Bill as drafted, our splendid whisky distilleries, open for the benefit of the tourist trade, will at long last be able to sell their products at times and on days when they cannot sell them at present. I hope that the Bill will change that.
Like other hon. Members, I am concerned about supermarkets and off-licences and I hope that we can deal in detail with them in Committee. There are obviously differences, and public houses in rural areas should not be disadvantaged. It is nonsense that, in a small village or town with five hotels and one pub, the pub should have to close while all the hotels can remain open. That never struck me as sensible. We should try to introduce some sense into those arrangements, which particularly affect the tourist areas of Scotland.
With regard to the ability of the police to enter clubs, I am concerned about and I hope that we shall be able to deal with it in more detail in Committee. I cannot claim to be happy with the provision as it stands and I look forward to hearing why the Government think that it is necessary.
Clause 53 makes certain changes in respect of divorce. There is no way that I can support what is proposed. That is one provision on which I have already reached a decision. It may be said that my prejudices are already showing, but I believe that marriage is far too important an institution for us to create a climate in which people think that they can get divorce on demand. It is not just important for children—it is important to the fabric of society.
One of the great tragedies of recent times is the way in which we have encouraged people to get married and divorced as though it were of little or no consequence. The family unit is the basis for our society and we should be looking for ways and means of sustaining it. I hope that I am not oversimplifying by saying that, like all things which matter, marriage has to be worked at. There is no easy way for two people to live together for a long period, and concessions have to be made.
We surely cannot think it sensible for people to bring something as important as a marriage to an end after just one year. I am also not happy with the reduction from five years to two. Such matters should be dealt with in the courts. I hope that in Committee we shall arrive at an answer which will satisfy those of us who have grave doubts about the clause.
On video evidence, the hon. Member for Glasgow, Garscadden (Mr. Dewar) said that he might find himself in some difficulty because he might agree with me. I hope that narrow political prejudices will not influence the way in 207 which we view the matters with which the Bill deals. I hope that we will consider video evidence in connection with offences against children and rape.
I hope that I have not spoken for too long, and I know that other hon. Members wish to speak. However, I believe that this Bill will be one of the most interesting to come before the House for the past three or four Parliaments. It is interesting because it is a miscellaneous provisions Bill. It ranges widely and we shall also consider additional clauses and amendments.
I hope that we shall keep in mind the fact that we have a unique legal system in Scotland. As Scots, we want as far as possible to maintain all that is good about our legal system. We do not want to be the same as other people simply for the sake of being the same. We want to improve our legal system. When we consider the various clauses and the amendments, I hope that we shall consider the Bill in the best interests of our constituents, because that is what we want to do at the end of the day. More importantly, I hope that we shall recognise that we shall be creating a new political environment—because the Bill covers many areas—in which people in Scotland will face substantial changes. I hope that we shall get it right.
§ Dr. Norman A. Godman (Greenock and Port Glasgow)
It seems that my hon. Friend the Member for Glasgow, Pollok (Mr. Dunnachie) has volunteered me as a member of the Standing Committee to consider this Bill. I served on the Committee which considered a previous Law Reform (Miscellaneous Provisions) Bill, and some of my memories of that Committee are not particularly happy. I remember trying to give added legal protection to complainers in rape cases and having my case demolished by an odd trio of legal minds: the hon. and learned Member for Perth and Kinross (Sir N. Fairbairn), the then right hon. Peter Fraser QC and my hon. Friend the Member for Glasgow, Garscadden (Mr. Dewar). However, like as not, I will have another go with that issue.
I am also unhappy about the introduction of the Bill at this stage in the Session. A number of clauses of particular interest to me are well down the batting order. I hope that their consideration will not be skimped as a result. The Under-Secretary of State for Scotland is listening with his usual rapt attention to the speeches of Back Benchers. With regard to part I of the Bill, can he tell us what will happen to new charities that are often set up in the aftermath of a huge tragedy elsewhere in the world? Some of those new charities are entirely legitimate and honourable. However, there are odd occasions when unscrupulous individuals try to milk the kindness of ordinary people who respond to requests for help. I hope that those villains will be dealt with, if only indirectly, by part I.
I do not want to repeat some of the arguments about part II. However, I am pleased to say that I agree with the creation of the office of legal services ombudsman, although I should have thought that such an official requires a substantial staff to deal with complaints brought against solicitors who provide their clients with a slovenly, careless and thoughtless service. It is not for me to defend the profession, which is remarkably conservative, full of Conservatives. Ministers should consider some of the serious reservations expressed earlier in the debate.
208 The overwhelming majority of solicitors in small communities—and not only in small communities—provide a fine and honourable service to their clients. It is absolutely essential that that service is not diminished by some of the clauses in part II of this hotch-potch of a Bill.
I also have serious reservations about part III, particularly in light of clause 37, which will allow the opening of off-sales premises on Sundays. Last week I presented a petition to the House protesting against that measure on behalf of the Rev. Ernie Scott, minister of St. Andrew's church in Port Glasgow, and over 300 members of the members or adherents of his church. I have received similar expressions of concern from Mount Kirk in Greenock and the Welpark Church in Greenock. Only today I received a letter from John Lindsay, the session clerk of Finnart St. Paul's church in Greenock, who wrote:The Kirk Session of the above Congregation, part of whose parish lies within your constituency, have asked me to advise you that at their last regular meeting on 15 May they expressed their unanimous opposition to any extension of the existing opening hours which would involve the opening of off-licensed premises on Sundays.In this House, we occasionally discuss the serious problems of drug addiction in Scotland and elsewhere in the United Kingdom. I believe that the most prevalent form of drug addiction and misuse involves alcohol abuse and misuse. Clause 37 enables smoother and wider access to that kind of drug. I will be voting against such a so-called liberalisation of the licensing law.
Part IV relates to miscellaneous reforms. I want to ask the Minister several questions to enable me to be better equipped to serve on the Standing Committee. My service on that Committee seems likely, thanks to the efforts of my hon. Friend the Member for Pollok.
Clause 48 offers a full refund to local authorities for approved expenditure in providing probation and parole supervision and social inquiry reports. In that regard, will there be financial compensation for any additional training that social workers, who presumably will be the probation officers under the terms of clause 48 for the regional and island councils, if they have to introduce extra training?
Why, in clause 54, in addition to the proposed change to section 15 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981, have the Government decided against introducing a provision which would enable the police to remove from the matrimonial home the alleged perpetrator of an act of sexual or physical abuse? I believe that it is established social work procedure throughout Scotland—it is certainly the case in Strathclyde—that in such cases, all the children aged under 16 in such a home are removed. Why should only the children be removed from a home in which such dreadful abuse has occurred? Why should the alleged perpetrator not be removed? He or she could be given financial provision for lodgings, and I give notice that I shall be tabling an amendment to deal with that issue.
In terms of balance, I agree with the sentiments in clause 55, which will give added protection particularly to women who have suffered what is called domestic violence. I am not sure how such a person will be classified under that provision. How will she prove her case to the local housing department and regional social work department?
Clause 56 deals with the use of live television links as evidence in certain criminal proceedings. Why does the Bill contain no provision for the use of televised interviews or 209 examinations in child and sex abuse cases? It is allowed in England by the Criminal Justice Act 1988, section 32 of which states:A person other than the accused may give evidence through a live television link on a trial on indictment or an appeal to the criminal division of the Court of Appeal or the hearing of a reference under section 17 of the Criminal Appeal Act 1968 if—(a) the witness is outside the United Kingdom; or"—as is the case with clause 56—(b) the witness is under the age of 14 and the offence charged is one to which subsection (2) below applies",a part of which deals with offences under the Sexual Offences Act 1956, the Indecency with Children Act 1960, the Sexual Offences Act 1967 and the Protection of Children Act 1978.
If children in England and Wales receive that protection, why not children in Scotland? I have argued before that children in such cases should give their evidence in as informal a place as possible. They should not be in, say, the sheriff court within 10 to 15 ft of the accused. That happens in one of the most modern court buildings in Scotland, the sheriff court in Glasgow: a child giving evidence in such a case in one of those court rooms is situated within 15 ft of the accused. That is a scandalous state of affairs, particularly bearing in mind the English legislation that we passed about three years ago.
I should like in such cases to see the judge with defending and prosecuting counsel seated at a table in, say, dark lounge suits—divested of their ceremonial outfits— with a child sitting at the table with them, perhaps in the friendly presence of a social worker or some other befriender.
If we introduced a new clause in line with the English legislation, we might see a lowering of the stress inflicted on children by the ordeal of giving evidence in the presence of the accused. More cases might also be reported to the police.
The Government should be providing all our major hospitals with suites of rooms equipped with video equipment for the interviewing and examination of children involved in such cases. Those video recordings should be allowed in evidence, although I appreciate that all manner of problems surround the use of such recordings, including their care and security. But at least hospitals should be equipped with such facilities.
I know of only three suites of rooms in Scotland. One, the Fred Stone suite, was opened in the Yorkhill children's hospital in Glasgow two weeks ago. It comprises four rooms with video equipment. The cost was about £70,000. It is named after the famous and estimable Professor Fred Stone, one of our foremost experts in the treatment of such cases and until recently professor of child psychiatry at Yorkhill hospital.
Another suite of rooms has been established at the Royal Scottish Society for the Prevention of Cruelty to Children centre at Anfield place in Glasgow. That was jointly funded by the RSSPCC and Strathclyde regional council. A third has been set up by the social work department of Strathclyde regional council in the offices of the Drumchapel area social work team, and video equipment is about to be installed in that unit.
I am pleased to say that a similar unit is being set up in the Inverclyde Royal hospital in Greenock. With my wife, I visited that unit recently. I told John Ryan, chairman of 210 he Argyll and Clyde health board, that I welcomed the innovation but regretted the absence of video equipment. I believe that Mr. Ryan's view is that, if the provision of such equipment became law, he would have it installed the following day.
That is the direction in which we should be moving in the treatment of child and sexual abuse cases. As I have explained, there are major omissions from the Bill. I shall seek to correct that state of affairs, I hope with the support of other members of the Committee, but I do not want our discussion of those vital issues to be hasty.
§ Mrs. Margaret Ewing (Moray)
I shall follow the example set by other hon. Members and declare those of my interests which are affected by the Bill. I am an unpaid adviser to the Scottish Law Agents Society and I am married to the junior partner of a small legal firm called Ewing company, based in Glasgow. I stress, however, that I earn my own income independently. I felt it important to put those details on record because I want to speak mainly about the Bill's implications for the legal profession. I wish to speak essentially as a consumer—although I prefer the term "client"—and as a constituency Member of Parliament.
The laws of our land need to have the confidence of the populace and this Bill is not just about the implications for the legal profession; it is about the delivery of legal services to the population. A great deal of concern has been expressed to me about the implications of this legislation for the delivery of those services.
First, can the Minister tell the House whence the demand first came for this piece of legislation and why these measures have been included in a Bill that is essentially a hotch-potch of other matters? If the Minister maintains that there was a clear demand for reform of the legal profession in Scotland, surely that reform merited a separate Bill, which could have been discussed in detail and less hurriedly than we shall have to deal with this one. I remind the Minister of the comments of Professor T. B. Smith, whom I am sure he studied at length in his training. Professor Smith once said that the law was rather like a drainage system to which no one paid any attention unless something went wrong. The people of Scotland have given no clear sign that they have lost confidence in the legal profession or in the delivery of services, so it seems strange that we are faced with these proposals.
Scotland is the only country in the world that has its own legal system but which lacks a legislature. We are also in the unique position of having two parliament buildings but no Government. That conundrum underpins many of the proposals in the Bill. As far as I can see, there has been no demand from the public for the proposed changes; the Government have undertaken no research; and the consultation process was largely a sham because most of the responses that came back to the Government were highly critical of the proposals in the Green Paper and in subsequent documents.
What is the rationale behind these proposals? We must look at what the Secretary of State said in paragraph 1.3 of the consultation paper:The independence of Scots Law and the distinctive Scottish Legal System are important corner stones in the preservation of a Scottish identity. The Scottish Legal System has its own historical origin and has developed in its own way. The organisation of the Legal Profession is, in part, a reflection of the distinctive Scottish Legal System",211 and of the distinctive Scottish way of life.
These may have been fine words but little in the proposals received the approval of the Scottish legal profession or of the public at large. Most lawyers see the proposals as an attack on the legal profession, which is one of the last bastions of the Scottish nation. Teachers, doctors and social workers in Scotland have already been on the receiving end of Tory reforms, and now it seems that the Government are determined to undermine the last of the independent professions in Scotland. Lawyers are to be sacrificed on the altar of the false gods of consumerism and competition which are so ruthlessly pursued by the Government in their legislative programme.
In their letter to me dealing with this legislation, the Scottish law agents said:The Scottish Bill mirrors the terms of the English Courts and Legal Services Bill. Our members deplore the assimilation of treatment for the two distinct jurisdictions.That speaks volumes for the attitude of the legal profession in Scotland.
Secondly, does the Minister believe that this legislation deals with the real needs of society for the delivery of legal services? We are debating it without having any debate on the legal aid system of Scotland. If we are to discuss consumerism and freedom of choice we must first discuss access. Without access to the law, there is no choice. People who can afford it have the luxury of a choice of solicitor, but consumers' choice becomes irrelevant when legal aid is denied them. I think, for instance, of areas such as personal injury, legal aid for tribunals—especially industrial tribunals—the delays in the determination of applications for legal aid civil cases, and the determination of the Scottish Legal Aid Board to operate a system of economies under which it refuses to increase the permitted levels of advice and assistance cover and regularly refuses to backdate assistance when new evidence become available.
The Government are determined to cut legal aid even further. I remind the Minister from his own statistics that bankruptcy cases now place a projected demand of £50 million by 1996 on the public purse whereas legal court aid costs only £11 million, which seems to reflect a strange set of priorities.
I refer the Minister to an article which appeared in The Times—The Times of London, not the Glasgow Evening Times which is held in such affection by many hon. Members—by Anthony Thornton QC, who writes of amendments to the Courts and Legal Services Billwhich may erode the rights of legally aided litigants … the government has maintained, until now, that the bill does not affect the structure of legal aid. Many fear the Government has now decided to use the bill to enable it to cut back expenditure on legal aid.Does the Minister intend to bring in similar amendments to this Bill to reflect those tabled to the English legislation in another place? If such amendments are carried, the erosion of legal aid could become institutionalised, which none of us would want. It is despicable that we have not dealt with legal aid before embarking on reforms of the legal profession.
In several earlier interventions, I touched on some aspects of the Bill. The idea that there will be a level playing field in conveyancing as between law practices and building societies and banks is misleading. The Minister will recall that the Building Societies Act 1986 specifically 212 excluded Scotland, so what has changed since then to convince Ministers that building societies, estate agents and banks should be brought into conveyancing?
Many hon. Members referred to rural practices—the small town practices which are so vital to our communities. I do not like the expression "cross-subsidy" being used in this context. Conveyancing is the bread and butter of many of those small practices. If they did not perform conveyancing in their communities, they would go out of business. By being based in small communities, solicitors build up expertise in technical areas of law. In my constituency, that can mean land tenure, tenancy, fishing law, agricultural law—all specialised areas which are fundamental to the well-being of the communities that we represent. There is a danger that those practices will not be able to compete with the larger conglommerates or with the multi-disciplinary practices, so the expertise provided in our communities will disappear. It is all very well paying lip service to the continuation of our rural economy— Ministers spout it often enough from the Dispatch Box— but if we do not take action now to ensure the survival of our small legal practices we shall be driving another nail into the coffin of our rural economies.
I have a great deal of confidence in the solicitors who work in my constituency, and I have spoken to many of them about the implications of the Bill. In return. I have received many letters and good ideas. They say that they will not be able to compete. It was rude of the Secretary of State to say that I do not have confidence in my local solicitors when I put in a plea that we should guarantee the survival of small practices. I do not understand what the Secretary of State meant by "monitoring" over the next few years. What happens in the interim? What happens if these practices disappear? Will all my skippers have to go to Aberdeen, Edinburgh or Glasgow to find someone who will understand the fishing laws and to assist them in any cases in which they might be involved?
It will be difficult for any of us to assess the implications of the Bill for the building societies and the banks if the code of conduct is not published in the primary legislation. It is not good enough to talk about such a code being set out in regulations because there is no guarantee that Members of Parliament will be afforded enough time to examine the regulations. A fundamental right is at stake.
I cannot understand why the Secretary of State and his Ministers have so rigidly set their faces against publishing a code of conduct. What do they have to hide? What is their reason for not doing so? If the Government wish to allay fears and suspicions among solicitors, the best way forward would be to publish the code of conduct before the Committee sits, so that those right hon. and hon. Members who serve on the Committee can look at it in detail and receive comments from the various organisations involved and from members of the profession and work out whether the regulations are appropriate for the quasi-legal individuals who will be able to do conveyancing in other organisations.
I say this against a background of a declaration by one of the major building societies, Nationwide Anglia., that it made a £90 million loss on estate agency work last year. It can hide such a loss in other aspects of its work, and consistently undercut those who are fully legally qualified to undertake conveyancing, rather than facing the consequences of such a loss. We need much more detail from the Scottish Office about what the code of conduct and the requirements will be.
213 The Government are adding to the cost of conveyancing, first by refusing to provide sufficient resources to the Registers of Scotland, or the central deeds office. This means that, while the whole of Scotland was to benefit by the registration of title process, only one ninth of Scotland will be helped. For example, according to a recent Glasgow Herald survey, conveyancing costs in Edinburgh are more than they are in Glasgow. That is partly because, under the new system, there is less work to do and the fees are cheaper.
Secondly, as from 6 April, the Government introduced agency status for the Registers of Scotland as part of their continuing privatisation programme so it will be essential for the agency to show a profit. The Government, for their own purposes, will want it to be profitable, because otherwise it will be seen as a failed experiment. I have it on excellent authority that the Government will be increasing the sums paid by the public for registration and recording of deeds, so that the agency will show a profit. I should like some straight comments from the Minister about that, because the Government are increasing the cost of a legal service.
The Bill covers many other aspects, on which I should like to touch, but I am conscious that other hon. Members have been waiting so I do not want to take too much time from them. Suffice it to say that, if I serve on the Committee, I shall move many amendments and new clauses. We face a difficult situation in that in June or July Scottish Members are being asked to spend lengthy days and probably nights considering a complex Bill covering a wide variety of subjects, from criminal evidence proceedings through conveyancing to amendment of the licensing laws, all of which are controversial and in need of detailed examination. Moreover, we shall have to deal with all of them within four or five weeks. That will put an incredible burden on those serving on the Committee and on outside organisations wishing to see changes made to the Bill.
The Government would be well advised to take the Bill away, separate the parts dealing specifically with legal provisions and make one Bill on that, leaving the other miscellaneous provisions to be dealt with in a correct miscellaneous provisions Bill. When I table my amendments and new clauses, I shall not withdraw them, as was done with amendments and new clauses in another place. That will be especially true of those on subjects which are dear to my heart, such as warrant sales, which I have raised previously in a private Member's Bill.
I am determined that we shall use the opportunities available to us, as the Government are determined to pursue their course, to raise other aspects of what needs to be done within the law of Scotland. May aspects are in much greater need of reform than those dealt with in the Bill. I find it insulting to the legal profession that it has been drawn into this hotch-potch of a Bill. The Government should take the Bill away, think about it and bring it back another day to be dealt with in another and more effective way.
§ Mr. Dennis Canavan (Falkirk, West)
The hon. Member for Moray (Mrs. Ewing) rightly described the Bill as a hotch-potch. It is a motley collection of unrelated 214 measures. It consists of over 100 pages, and almost the whole of the first page is taken up by the long title. It could be subdivided into at least four separate Bills, but the Government have not done that—for the self-evident reason that they do not have enough Tory Scottish Back Benchers to man one Scottish Standing Committee, never mind four. This reinforces the need for a Scottish Parliament, so that adequate scrutiny can be given to Scottish legislation.
Part I deals with charities. It is not often that I agree with the hon. and learned Member for Perth and Kinross (Sir N. Fairbairn) but I agreed with much of what he said about the need for a national register of charities, so that people who want to give money for a specific charitable purpose can find out which is the most appropriate charity. It is also a pity that the Bill misses the opportunity for a stricter definition of charity. It is anomalous that an amateur sporting organisation would not normally qualify for recognition as a charity, while an organisation like the Adam Smith Institute, which is heavily involved in political activities, does qualify for charitable status and therefore for tax relief. I hope that, at a later stage in the Bill, we shall have an opportunity to look at this and other anomalies.
Part 2 deals with the proposed changes in legal services. I am not legally qualified, but I have a fairly open mind and I listen to the arguments put by both sides, although I have been critical of the lawyers' closed shop, or the legal mafia as it is often known. When I make up my mind how to vote on the proposals, the main criterion for me, as it should be for all hon. Members, whether or not they are lawyers, is whether the proposed changes, or amendments to them, are in the interests of the consumer or the client.
It is all very well for the Secretary of State to talk about level playing fields, but they are no use if they are covered in ice or broken glass. It is the poor consumer who may suffer from the possible effects of the deficiencies in some of the proposals.
Part III relates to liquor licensing. That always has been and always will be a controversial subject in Scotland and we shall never please everyone when amending licensing legislation. I remember the passage of the Licensing (Scotland) Act 1976, which contained some fiercely controversial measures. In the light of the experience of 14 years, however, many of the Clayson proposals, which have been enacted, are generally excepted as having introduced a more liberalised and civilised attitude towards the consumption of alcohol in Scotland.
Draconian or restrictive legislation does not necessarily eradicate or minimise alcoholic abuse—it may well have the opposite effect. As a consistent decentraliser, I also believe that some discretion should be given to the licensing boards so that they can take into account local circumstances before final decisions are reached. I hope that the eventual legislation will give those boards the opportunity to exercise some discretion in such matters.
Earlier, I raised with the Secretary of State his proposal to allow the police entry into registered clubs without a warrant. The Secretary of State referred to a survey that had been undertaken and I hope that the questions put, the organisations and individuals questioned and the results of it will be published in due course and given to all hon. Members, particularly those who are selected to serve on the Committee.
Perhaps I should declare an interest, as I am a member of the Camelon Labour club and the Bannockburn miners' 215 welfare club. I believe that my membership of the latter entitles me to reciprocal membership of virtually every miners' welfare club in the country. It is important to remember that a club is not equivalent to a public house. Originally, the club was considered to be an extention of the home.
Clubs must keep a register of members and anybody who is not a member must be signed in for entry. Most club members would consider it a gross invasion of privacy if the police were allowed entry into clubs without a warrant. Most clubs operate a successful system of self-discipline and I do not know of any widespread abuse. If there is trouble in a club, even under the existing system the police can get a warrant to deal with the situation. In the final analysis, clubs are accountable not to the licensing board, but to the sheriff. The sheriff may refuse to renew a club's licence if there has been any misbehaviour, evidence of which has been given him by the police.
It is not just Labour Members who have expressed grave reservations about, not to say downright opposition to, the proposal. There are many types of social clubs—working people's clubs, ex-servicemen's clubs, British Legion clubs, sporting clubs, Labour clubs, miners' welfare clubs and even Conservative clubs. I appeal to the Minister to consult those in the House who speak on behalf of the Conservative clubs north and south of the border. He should ask them what they would think if they were sitting in their club having a private meeting when, suddenly, in burst the police without a warrant. That is a gross and unjustified intrusion.
Way back in 1976, the late Willie Ross was persuaded to withdraw a similar clause. He had a great deal of common sense and he listened to the views expressed by the public and by hon. Members. When the clause was considered on Report, my recollection is that it was withdrawn without being forced to a vote. In that connection, I pay tribute to my hon. Friend the Member for Falkirk, East (Mr. Ewing) who, as the Minister responsible for piloting the legislation through in 1976, listened to the views expressed by hon. Members.
Although the Minister may think that he has good intentions and that those who support the clause are similarly minded, it would have a damaging effect on police-community relations in many parts of Scotland. There is also an understandable fear that, if the measure reaches the statute book, it is only a matter of time before clubs in England and Wales face the same threat.
Part IV deals with miscellaneous reforms, including penal reform. Recently I had occasion to visit the young offenders institution at Polmont, in the constituency of my hon. Friend the Member for Falkirk, East. I was invited by the governor primarily to witness a great sporting event held to raise money to send youngsters from the Central Region to the special olympics. In my following remarks, I have no criticism of the governor or the staff at Polmont, but I am critical of the system that they are obliged to operate.
After the sporting event, I took the opportunity, at the governor's invitation, to look at some of the facilities available and speak to some of the inmates, I understand that Polmont was originally a borstal, with a fairly open regime. Recently, it has been surrounded with a perimeter fence and additional security arrangements have been introduced. The Minister will be aware from a parliamentary reply to me that that cost the taxpayer no less than £1.25 million.
216 Given the increased security, I thought that all the inmates at Polmont were high-risk young offenders who had committed grevious offences. However, I must tell the Minister of a conversation I had with a young 16-year-old inmate who, for obvious reasons, shall remain nameless. I asked him how long he was in for and he said four weeks. When I asked him what he was in for, he said that it was for not paying a fine of £100. I asked him why he could not pay it and he said that he had no job and received only £22 a week on social security, of which £15 went to his mother for his keep. Yet the sheriff ordered him to pay the fine at £7 a week. Understandably, he fell behind in his payments and, as a consequence, he found himself in that high-security detention centre.
Does it make sense in terms of penal or economic policy to spend more than £1.25 million to surround such young people with a high-security fence and all the rest? Surely they would be better on a community service order or some other alternative to custodial punishment. Something could and should be done about such a situation. I am sure that that young man's case is not unique.
There is a lot fundamentally wrong with Scotland's penal system in general. I must make it clear that I am not talking about Polmont when I say that, if people in our prisons are treated like animals, there will be a tendency for them to behave like animals. Long before the riots started in Strangeways, the track record of the penal system in Scotland under this Secretary of State for Scotland left a lot to be desired, with prisoners taking to the rooftops and prisoners and prison staff being subjected to violence and threats of violence. If inmates are treated in a barbaric fashion—it is not surprising that some of them sometimes behave in a barbaric fashion—and I am not justifying their actions by saying that.
I hope that the Bill gives us the opportunity to discuss such matters. It would be a great pity if we were to miss the opportunity to bring about a radical reform of Scotland's penal system.
There is not much that is good about the Bill, but today's Second Reading debate is encouraging in that, much more than in any other piece of Scottish legislation in this Parliament, valid points have been made in a conscientious manner from both sides of the House, sometimes with cross-party agreement. Therefore, I hope that, at a later stage, we will be able to have a positive and constructive debate, so that the Bill which emerges from the Standing Committee will be much improved on Report and Third Reading.
§ 9.1 pm
§ Mr. Alistair Darling (Edinburgh, Central)
Because of the time, I shall truncate my speech. I am grateful to my hon. Friend the Member for Cunninghame, North (Mr. Wilson) for giving some of his time to me. The lack of time only serves to illustrate the most important conclusion that many of us have drawn from the legislation—that the case for a Scottish Parliament has been made out.
It is well known that I was a doubter in 1979 hut, for the record, I voted yes in the referendum for devolution for Scotland. Every day that we consider Scottish legislation in the House, I am more and more convinced that it is inappropriate to do so in this sort of environment, in this truncated time, with not a soul on the Conservative 217 Benches other than the Ministers on the Front Bench. The case for these matters being discussed in Scotland by people who know the conditions there is overwhelming.
I must declare an interest as a member of the Faculty of Advocates. Because of lack of time, I do not intend to address myself to many of the measures that affect rights of audience. I should like to do so, but I cannot, because I am duty bound to raise matters that affect my constituents, particularly on licensing.
I am concerned about one aspect in particular—clause 39, which requires licensing boards to have regard to what is called the need in "the locality." What is the locality in central Edinburgh? Is it the immediate locality—for example, Stockbridge or Tollcross—the city centre, Edinburgh or the Lothians? What is the licensing board supposed to consider?
The problem in Edinburgh at present is that there are a large number of licensed premises in the comparatively small area of the city centre, and they are open for long periods. That causes those who live near them considerable inconvenience and irritation, particularly at night. As I said in an intervention to the Secretary of State, many of those premises are well run and cause no problem, but it is simply the presence of a large number of licensed permises open late at night, disgorging many people into the streets, which causes the problem. That is a problem that the Bill should address, but does not do so.
In the time available, I wish to describe a few things that could be done. The first will cost money. It is to allocate more money for police overtime. I have long believed that policemen on the beat on the streets late at night reduce both the number of general disturbances and the incidence of serious crime. They deter problems before they arise. Secondly, licensing boards should be given additional powers to close premises that cause problems on a temporary basis. That immediate deterrent would make many landlords who keep unruly houses—for want of a better word—keep their customers in order.
There is also a clear need to make it easier for ordinary people to object to late licences. At present, the odds are stacked in favour of the brewers and licensees. A simplified procedure under which it was not necessary to follow the exact statutory terms of the objection would make it much easier for not only those who live nearby but community councils and residents' associations to make their voices heard. Why not give them a right of appeal? The licensee can appeal to the sheriff court, so why cannot those who live near the nuisance? Some flexibility would be greatly welcomed by many of my constituents.
I cannot say any more about licensing because of the time, but I wish to mention several minor points which arose in the debate and about which I feel strongly, both as a Member of the House and as someone who has practised law.
Several comments have been made tonight about divorce. No one wants to make divorce easier, but that is not the question before us. Hon. Members might like to bear in mind the fact that, if one commits adultery the night after one gets married, one can get divorced immediately. The idea that somehow there is a two-year period before divorce can take place when there is consent and a five-year period when there is not, is nonsense. When we consider the nature of the institution of marriage, we 218 should be in no doubt that, if one wants to, one can get divorced easily. I have never understood why it is necessary to shackle people in an unhappy domestic situation and an unhappy marriage when it is obvious that the partnership has broken down. I hope that the members of the Standing Committee will consider the practical effects on the individuals involved rather than worship an institution that may be worthless in the individual case.
I should have liked to mention several other matters in the Bill, but because of the time available it is not possible to do so. I conclude by saying that the two fundamental problems that people face in the provision of legal services are cost and often delay, particularly in the courts. The Bill does nothing to address either problem. It simply extends monopolies in certain cases. It does not get around the obvious problems of conflict of interests. It does not get round the problem that choice is not extended simply by increasing the number of people involved in providing legal services. Choice includes the quality and impartiality of the advice. It includes many things by which the Government do not seem to set any store.
In short, the Bill seems to monkey around with the present system, and at the end of the day, the consumers of legal services will not find the service greatly improved. Many other areas have not been considered, including no-fault liability or putting the resoluton of more disputes out of the legal environment.
I am grateful for this brief opportunity to touch on matters which are important to all of us who live in Scotland. I conclude where I started: it is a tragedy that the whole matter has been discussed here in a rush and in such circumstances, when it could and should be discussed 450 miles away to the benefit not only of people who live in the United Kingdom as a whole.
§ 9.8 pm
§ Mrs. Maria Fyfe (Glasgow, Maryhill)
I too am grateful for the opportunity to speak on the Bill. I have a great deal to say about the inadequacies of the conveyancing system and about the appointment and preservation of judges on the Bench, but I shall save it for the Committee. On licensing, I do not see why people should be entitled to peace and quiet only on a Sunday. If local pensioners or mothers with young children are being annoyed by hooligans with carry-outs on any day of the week, they should expect the licensing boards to crack down on the supplier. In Committee, I shall be concerned to make it easier for the public to complain. Why should people have to take unpaid leave from work, wait outside the court for several hours, and then find that the case is not even to be heard? The licensing procedure is in a shambles, and something ought to be done about it.
I want to draw particular attention to clause 34. For a five-year period to operate in the case of a contested divorce puts the non-consenting party in a very strong bargaining position. If that party has possession of the family home, the other partner is forced to find whatever accommodation they can. Not every local authority is particularly helpful, and it usually means a worsening by far of the housing standards that the individual must endure, possibly together with the children of the marriage. He or she might have to live on benefits or part-time earnings, while his or her share of the value of 219 the marital home remains tied up until the divorce is finalised many years later. That places enormous pressure on that individual to settle and to accept an unfair deal.
If the other party wishes to remarry, an enforced wait of five years is far too long. It would often prevent the new couple from having children of their own for that considerable length of time. If the woman is close to an age when she knows that pregnancy could result in serious foetal abnormality, it may even prevent the couple from starting a family. What is the point of a five-year wait? Is it likely that many spouses who have refused to have anything to do with each other for two years will have a change of heart between the third and fifth year? I am likely to support the change in the Bill, but I will bring my remarks to a close, so that my hon. Friend on the Frong Bench can make his speech.
§ Mr. Brian Wilson (Cunninghame, North)
For the first time since I entered the House, I can say with entire sincerity at the conclusion of a Scottish debate that we have had an excellent and real debate, with people speaking from the heart and from the head rather than along party lines. I am delighted that that happened because the issues that we are confronting are extremely important, not only in parliamentary terms but to the social ethos of Scotland. The issues that we have debated have a real effect on the lives of many of our fellow citizens, and they have been approached with the seriousness that they justify.
As the Secretary of State for Scotland has only just rejoined us, I am sure that he will receive reports of the debate. He should be aware that probably the most scathing criticism of the Bill, with which I should not seek to compete, came from his own side of the House. The hon. and learned Member for Perth and Kinross (Sir N. Fairbairn) described it asa bad Bill. It is a sandwich of stale bread and poisoned meat.I should not seek to improve on that short title. The hon. Member for Dumfries (Sir H. Monro) said that it was a pity that the House was not consulted before the Bill was brought before it. The hon. Member for Tayside, North (Mr. Walker) was, as befits of a man of his station, more cautious in his criticisms, but he too showed serious disagreement with many of the Bill's aspects.
We reiterate our anger at the way in which the Bill has been presented and the time scale that we have been offered. It is a major piece of legislation. As every hon. Member who has spoken recognised, its provisions should not be contained within a single Bill. Perhaps Professor Wilson of Edinburgh, who specialises in Scottish law, was exaggerating when he described it as the Scottish Law (Abolition) Bill. But, with the common consent of the House, it might be termed the Small Town Solicitor (Scotland) (Abolition) Bill.
The Bill embodies what should be a major piece of licensing legislation in its own right. It incorporates as an afterthought significant changes to Scotland's divorce laws that will crucially affect the lives and future happiness of hundreds and, in time, thousands of our fellow citizens. As a throwaway, it contains also charities law, without an iota of party politics in it, but involving significant reforms. Its miscellaneous provisions cover such matters as court proceedings and matrimonial homes. That is a huge gamut of extremely important measures.
220 A Bill having the title of the Law Reform (Miscellaneous Provisions) (Scotland) Bill should conspicuously and unmistakably extend and strengthen the rights of the citizen. To win the approval of the House, it should enhance the availability and likelihood of justice, irrespective of the individual's ability to pay. By the common consent of the House, there is little in the Bill that readily suggests that it meets those criteria. There is no reference to the extension of legal aid and to what is probably the greatest legal controversy in Scotland at present, the use of warrant sales. Many large areas of Scottish law that are in need of reform are not addressed by the legislation.
I shall deal briefly with charities, because in the short time available I have no wish to reiterate issues that have already been dealt with in some detail. I support the concept of greater disclosure about the identity of charities, and the purposes for which they exist. I also believe, along with my hon. Friend the Member for Falkirk, West (Mr, Canavan), that there is a good case for including in the Bill provisions to examine the criteria and the basis upon which charities exist, and the charitable purposes of some organisations that are quite wrongly designated as charities.
I have no doubt that in Committee one organisation that we shall be interested to inquire into is the Atlantic Salmon Trust. For the life of me, I cannot imagine how an organisation that is in the business of buying up salmon net fishings in Scotland to protect the vested financial interests of riparian owners there can possibly qualify as a charity. If that trust can be defined as a charity, I suspect that many other organisations are masquerading as charities when they should not be, and we shall certainly explore that in Committee.
A small matter—almost a personal hobby horse—is local charities or voluntary groups that have fallen by the wayside and become defunct. The knowledge of their past existence, perhaps stretching back for several decades, exists only in local folk memories. Perhaps they were never registered or formally wound up. There may be some confusion about whether they had any money and who is responsible for it. The information has disappeared in to the mists of time. As things stand, the only beneficiaries of such confusion are the banks, where the money rests for ever and a day. I hope that so that their charitable funds may be merged or so that the bodies may be redefined in their purposes, as the Bill rightly proposes, there will be an onus on banks to declare the existence of dormant accounts belonging to all voluntary or charitable bodies registered or unregistered. Further steps can then be taken.
The largest area of contention in the Bill is legal services. I am the only hon. Member at either Dispatch Box who does not declare a vested interest, and who does not need to be addressed as learned. Personally, I think that that has more to do with the inadequacies of terminology in the House than with anything else.
It is crucial that legal services are subjected to the critical scrutiny not only of lawyers—we have heard plenty from them tonight—but of the consumers, the people who use such services. The consumer has a strong interest in distinguishing between genuine choice and the illusion of it. Simply because the Government refer to choice does not mean that it exists. The route to all the proposed reforms seems to be the part of the Bill that deals with conveyancing practitioners. The Secretary of State referred to the very high standard of service that is at 221 present provided by solicitors in the sphere of conveyancing. I should have thought that a reasonable maxim for the Government is: if it is not broken, do not fix it. Yet we have this legislative basis for the introduction of conveyancing practitioners. The terminology suggests a new breed of person who will deal with conveyancing as if it were a separate compartment of the law, apart from all others. It is like a heart surgeon not being required to know anything about what happens in the arms and legs.
If he is to fulfil his conveyancing responsibilities, the conveyancing practitioner—whether he is a solicitor or not —will need to have a real understanding of the law of contract, property law, company law, bankruptcy law, the law of succession, taxation law, the Matrimonial Homes (Family Protection) (Scotland) Act 1981, and doubtless many more Acts. If that person does not hold the required professional knowledge of all those branches of the law, how can his performance compare with that of the solicitor who is regarded as competent in them all? The public should not have foisted upon them, in the name of choice, a conveyancing practitioner who is less well qualified than those who are already available to them.
The theory is that choice will be extended. Choice, however, will not be extended if all that is available is a lesser breed of practitioner. Choice will certainly not be extended if solicitors lose the essential income that allows them to practise conveyancing, thereby forcing the consumer into the hands of a diminishing number of practices. That problem ties straight in with the question of multi-disciplinary practices.
The hon. Member for Dumfries made an interesting point when he referred to difficulties over the legal definition of a rural area and an urban area. Solicitors in small towns may disappear and be replaced by a multi-disciplinary practice, which could be in Dumfries, Perth and Inverness. I do not accept that a few glossy, one-door practices in the larger towns and cities of Scotland are any substitute for the large network of solicitors that can be found in virtually every town, and sometimes in the villages of Scotland. That, however, is a real possibility if the Bill is enacted in its present form. It will push people towards the bigger practices, towards the one-door approach. Many of those professional services will be offered by only a few larger business organisations instead of by a large number of small organisations at local level.
Reference has been made to first-time buyers. I should like to give my personal experience under the existing system, not under the system that is envisaged in the legislation. When I bought my first flat in the west end of Glasgow I went, in all innocence, to an estate agent in Byres road. I apologise if I am revealing disturbing middle-class tendencies, but my first priority was to secure that flat. I was much more worried about that than about shopping around.
From the time I entered that estate agency I was carried along inexorably on a magical mystery tour. It took me first to a back room in the office where I was "advised" about mortgage facilities. I was then carried, even more mysteriously, to a solicitor's practice in an upstairs attic in Hamilton. Eventually I ended up in a bank in Busby. That was the result of taking the first basic step of going through an estate agent's door in Byres road, Glasgow. There may 222 have been—although I would not have noticed them—many funny handshakes during that magical mystery tour, but the point is that, even as matters stand now, there is not a one-door approach but an interlinked approach.
I know that there is considerable concern in the Law Society and elsewhere about such operations. If anything, the Bill should be trying to put a stop to such practices rather than formalising and legitimising them through multi-disciplinary practices that will extend the principle far beyond the experience that I described. Multidisciplinary practices might mean that an inexperienced person buying a house will find it difficult to resist the pressure to go from one stop to the next in the way in which I described, and will provide a greater deterrent to the person saying, "I do not want to go to the professional associate just up the corridor to whom you are trying to direct me." If we are trying to establish choice and if we want people to consider their options independently—that is exactly what they should be able to do—putting all the disciplines under one roof with all the pressures that will then be incumbent upon people is the antithesis of choice.
In small and medium-sized towns in Scotland, enterprising solicitors might decide to fight back against the development of multi-disciplinary practices and might say, "A multi-disciplinary practice in Perth is taking our business away; we shall try to extend the same facilities to our clients in Blairgowries. We shall try to give them the same package on the spot." But under the Bill such a solicitor is prevented from doing so because of the incomprehensible distinction that it draws between those firms that have court practices and those that do not. So solicitors who are partly dependent upon court practices will have to either give that up or abandon the idea of becoming a small multi-disciplinary practice. Once again I cannot see how that in any way extends choice.
My great fear is that there will be an erosion of legal services. I shall not go over the ground again about the dependency on conveyancing work in small solicitors' firms. If we take that away from them, undoubtedly we shall diminish access to the other legal services that they provide.
On the subject of the Scottish Conveyancing and Executry Services Board that is proposed in the Bill, the English equivalent has been legislated for in such a way as to provide a balance of interest between providers and consumers. That is the least that we would expect in Scotland. We welcome unreservedly the creation of the ombudsman post, but we should also welcome some sanction. I understand that the English legislation introduced the concept of £1,000 maximum compensation at the behest of the Law Society, and I believe that such a sanction should apply to Scotland. Again, many constituency cases involve people who have been through the entire process of the Law Society, the ombudsman and so on but achieve no satisfaction.
I give notice that Labour Members and, I believe, the hon. and learned Member for Fife, North-East (Mr. Campbell) will table an amendment in Committee to allow the cost of a survey in a conveyancing transaction to be borne by the seller. That idea might put a few cats among the pigeons.
I shall not go over the same ground again on rights of audience. I speak as a non-lawyer, but the issue may be seen by some people as a matter of internal dispute among lawyers. It will not be discussed in that way in Committee, 223 as at the end of the day it is the consumer or the person consulting the lawyer who matters and we want to ensure that they have access to the best available people. I found the points made by the hon. and learned Member for Perth and Kinross fairly powerful.
I wish to move on quickly to the licensing provisions. We could spend the night regretting the rushed and confused way in which the whole matter has been presented to us. I have no doubt that the Scottish licensing laws need serious reform and review. Some of the aims of Dr. Clayson and of the subsequent legislation have been fulfilled. There have been some improvements in Scotland's licensing laws and licensing provision, but no one who knows anything about the nuts and bolts of Scottish society can be in any doubt that there is much to be done in terms of licensing and alcohol. I do not say that in an unco' guid or patronising way—far from it. If we are to seek serious improvements in Scottish society, licensing laws should not be the subject of a subsection but should be a matter of serious review. Whatever our generation may have seen, we do not see anything much better in the attitudes of young people towards drink. They are subjected to advertising pressure by breweries pouring money into campaigns to make drink seem an essential adjunct of every activity. We want a different approach to drink in Scotland.
If people were to be asked in a survey on licensing laws in Scotland how to get a better attitude towards drink, I suspect that the last proposal of 99 per cent. would be to open the off-licences on a Sunday afternoon. That does not seem to be a social reform that is much in demand. Many, but by no means all, off-sales premises in Scotland, especially in inner-city areas, are part of the problem rather than of the potential solution. When one walks into the shops that are selling from behind high wire fences an extremely limited selection of extremely potent beverages, I do not think that one can see any part of what Dr. Christopher Clayson had in mind for the liberalising reform of Scottish licensing laws. Opening on a Sunday will do no one any favours, other than the people who own those shops.
In the context of pub opening hours, the Secretary of State spoke of Sunday as a time for peace and quiet. Why should not it also be a time of peace and quiet for people who live next door to an off-sales premises and who often suffer at least as much discomfort and environmental intrusion as those living next door to public houses? As my hon. Friend the Member for Glasgow, Garscadden (Mr. Dewar) said, these will be matters for a free vote among Labour Members, so I am stating what is largely a personal view.
On club licences and police access, it is essential to note that there has been no demand for the measure from those clubs. We heard from the Secretary of State that 18 community councils in Scotland—a small proportion—are in favour of such a measure. Perhaps more significantly, we heard that four licensed trade organisations favour giving the police access to social clubs. With respect, of course four licensed trade organisations are in favour, because that is a device which they see for eventually getting rid of competition and the different kind of establishment that social clubs offer.
The issue is of interest not only north of the border —which it would immediately affect—but in the south. I note from a letter from the Committee of Registered Clubs Associations that, if the Secretary of State goes ahead with 224 the proposal, he will have not only the opposition of his Back Benchers but the unremitting opposition of the Royal British Legion clubs, the Royal Naval Association clubs, the Royal Air Force Association clubs, the National Union of Labour and Socialist Clubs, the National Union of Liberal Clubs and the Working Men's Club and Institute Union Ltd. Perhaps most ominously for the right hon. and learned Gentleman, the letter added:We are also of one accord with a similar view held by the Association of Conservative Clubs on this issue.I should like to place on record the views of the Law Society of Scotland, because it was ungracious of the Secretary of State not to allow my hon. Friend the Member for Linlithgow (Mr. Dalyell) to provide a point of information. As the right hon. and learned Gentleman did not give way, I must provide that information. The Law Society of Scotland states:Clause 46 provides that a police constable may enter a club at any reasonable time. He does not need a warrant or reasonable suspicion of a crime to be able to exercise his right of entry. This does not put clubs on an equal footing with pubs.This clause was in the Bill when introduced by the Lord Advocate in the Lords and its exact terms were only known then. In view of its terms the Law Society considers that it requires amendment in order to prevent undue restriction of the liberty of the individual and to preserve, in a manner consistent with good public order, the privacy of the individual.I am glad that the record can be set straight.
We are all members of clubs. I note from "Who's Who" that both the Secretary of State and the Under-Secretary of State are members of the New club in Edinburgh. The Under-Secretary of State is also a member of the Honourable Company of Edinburgh Golfers. If the Secretary of State and the Under-Secretary of State were having a small refreshment in the New club, they would not be terribly pleased if the police exercised their right to enter every hour on the hour because of a little local upset, such as members misbehaving in the street.
However, that is not the reality. The clubs that would be far more likely to be affected are those to which ordinary folk go to have a relaxed social evening. If the Secretary of State goes ahead with the proposal, he will introduce more problems than such a measure is likely to resolve.
The mere fact that it takes so long to go through the Bill illustrates the rag bag of measures with which we are dealing tonight under the title of one Bill. Few of the measures, as has been ably demonstrated tonight, have many friends among Conservative or Opposition Members. I assure the Secretary of State that we shall contribute to the process of healthy debate and that every time we defeat one of the measures in the Bill with Conservative Members, we hope to be invited by the hon. Member for Dumfries to join him in a large Laphroaig.
§ The Parliamentary Under-Secretary of State for Scotland (Lord James Douglas-Hamilton)
This has been an especially good debate. It has been useful to have the evidence of the hon. Member for Falkirk, East (Mr. Ewing), who piloted the Licensing (Scotland) Bill through in 1976. My hon. Friend the Member for Dumfries (Sir H. Monro) also expressed strong views at that time. Five of those who took part today are lawyers. However, I am glad to say that the majority of those who contributed were not. Three of those who are lawyers have had the 225 distinction of being the junior counsel to my hon. and learned Friend the Member for Perth and Kinross (Sir N. Fairbairn) and are still here to talk about it.
I want to give an example of an issue on which we should like to reflect. I was asked by the hon. Member for Glasgow, Garscadden (Mr. Dewar) and by the hon. Member for Greenock and Port Glasgow (Dr. Godman) why a provision for evidence by television link for children in sexual offences cases was not included in the Bill. The Scottish Law Commission published its report on the evidence of children and other potentially vulnerable witnesses in February this year. The report makes a number of recommendations on the giving of evidence by children and by other vulnerable witnesses. The recommendations are now being considered. I want to reflect on the points made by hon. Members and we shall return to the matter later in Committee.
§ Dr. Godman
I have listened carefully to the Minister on this important matter. Will he give the House an assurance that his officials will give careful attention to the experiences gained by English courts vis-a-vis the Criminal Justice Act 1988 and, in particular, clause 23?
§ Lord James Douglas-Hamilton
I will certainly make a point of looking with particular care at that. I do not mean only my officials, but Ministers, as we are responsible. I would not come forward with proposals unless I felt that I could satisfy the House on them.
There have been substantial criticisms of the Bill on the ground that it covers too wide an area. We belive that it is better to take the opportunity presented by such a Bill rather than to wait for two or three individual Bills, which would necessitate many Second Reading debates and subsequent Committees. I stress to the House that we shall approach the Committee in a constructive spirit and that we shall accede to amendments when they contain reasonable and well-thought-out proposals. Even when they do not, if they have well-thought-out principles, we shall act on them. We shall listen with the utmost care to what is said.
The hon. Member for Linlithgow (Mr. Dalyell) raised the point about what the Law Society had said. My right hon. and learned Friend the Secretary of State correctly recorded its representations during consultation that year. However, in the past two days, the Law Society has sent in written representations expressing concern, as the hon. Member for Linlithgow said, and we shall look at those with particular concern.
§ Mr. Dalyell
I accept that there was a genuine misunderstanding: the Secretary of State did not have in his hands the letter that the rest of us had.
§ Lord James Douglas-Hamilton
The matter will be looked at with great care. In the other place, more than 800 amendments were tabled in Committee and on Report and nearly 300 were carried. Although many of those 300 were Government amendments, many of them represented a response to arguments advanced during our debates. I have every confidence that the hon. Members who serve on the Standing Committee will rise to the challenge and that the outcome will be a measure of significant and lasting benefit to Scotland.
226 I am particularly aware of the concerns expressed about conveyancing and about rural solicitors. I have been employed by rural solicitors in the past, and I assure the House that we shall look at the matter carefully.
Each of the Bill's four constituent parts is intended to confer significant benefits on Scotland. Part I deals with charities. Given the important role that charities play in Scottish life, they must have the confidence and respect of the public. The obvious way of preserving the good will that they enjoy is to ensure that all charities are accountable for the way in which they conduct their operations and the way in which they employ the resources that they have in their care. The Bill is important because it gives the public the right to be informed of the bodies that have received recognition as charities.
Shortly after my appointment as a junior Minister, I visited UK 2000, which said that Scottish charities were at a disadvantage in relation to their English counterparts because the necessary access-to-information arrangements were not in place. The Bill requires a charity to provide on request a copy of its explanatory documents—for example, a trust deed or other document setting out its aims and objectives. It is especially relevant that members of the public will now be able to acquire the necessary information.
Some hon. Members are concerned that there is nothing in the Bill to require the Inland Revenue to maintain a register or index of charities to which the public has access. Although the point is not made explicit in the Bill, I am happy to assure hon. Members that the Inland Revenue will maintain a microfiche index of the Scottish bodies that they have recognised as charitable. Members of the public will be able to call in person to consult the index or to write or telephone for information about specific charities. The Inland Revenue will be able to tell members of the public the names and addresses of the bodies that it has recognised. Armed with that information, members of the public will be able, as of right, to obtain copies of the charity's accounts, together with reports of their recent activities and, if required, a copy of the founding deed.
Part II of the Bill seeks to achieve our overriding aim of providing reforms to improve the provision of legal services to the consumer. We intend to do that by increasing the choice of legal services and, where possible, improving consumer protection mechanisms. The measures in part II have been prepared fully to reflect the distinctive characteristics of Scottish law. In another place, we had the benefit of the views of members of the Scottish judiciary, and many amendments were made as a result.
In putting together the licensing package, our general approach was to heed the majority view. We aimed to achieve three objectives: first, to enhance the more civilised regime that has been in place since 1976; secondly, wherever possible, to remove red tape from the procedures; and, thirdly, to tighten up the law where practical experience of the operation of the existing provisions suggested that that was needed. I have no doubt that we shall devote a good deal of time in Committee to the details of the provisions.
The Government will be willing to consider whether the objectives to which I have referred can be achieved more easily if adjustments are made. We intend to move carefully, as it is clear to us, from the many representations that we have received, that there is widespread and strong feeling in Scotland concerning the details of the licensing 227 regime. Our intention must be to ensure changes which confer clear practical benefits on Scotland and which are seen to secure such benefits.
Part IV of the Bill contains an important package of miscellaneous reforms. A number of the provisions are intended to improve and expand social work services in respect of the criminal justice system in Scotland and have the objective of increasing the range of alternatives to imprisonment.
For example, the measures on fines are intended to make the fines system operate more effectively in practice and to reduce the incidence of imprisonment for fine default among those less able to pay. I will look into the point raised by the hon. Member for Falkirk, West (Mr. Canavan) about Polmont, although some of the issues involved in that may be beyond the scope of the Bill. I will write to the hon. Gentleman in due course.
It comes as no surprise that very diverging views have been expressed about divorce in the debate. The Scottish Law Commission discovered from its public opinion survey about the desirability of changing the law that no reform of the divorce laws will please everyone. However, one of the main reasons for trying to reduce unnecessary use of the behaviour ground is to minimise unnecessary hostility in the interests of the children in the marriage.
In nearly 50 per cent. of divorce actions, the grounds for divorce are based on the behaviour of the defender. Although of course there are instances in which the behaviour of the defender is indeed the real cause of the breakdown of the marriage, there is reason to believe that many actions are raised on behavioural grounds simply because of the length of the separation periods. No doubt the pursuer would prefer not to make allegations against his or her spouse, but is advised that, unless behaviour is used, there will be a delay of at least two years from the date of separation.
Reducing the periods should make it easier for parties to focus on the welfare of the children, because they will not need to resort to recriminations about each other's behaviour. That is the moral justification for the measure. However, I appreciate that there are strong views on that subject which no doubt will be dealt with fully in Committee.
I agree with my hon. Friend the Member for Dumfries (Sir H. Monro) that divorce is a last resort, and we are not touching the provisions on reconciliation. While separation periods should be long enough to substantiate a breakdown, it would be wrong for them to be even longer. Having no statutory period would encourage parties to manufacture evidence about each other rather than to focus on the welfare of their children.
§ Sir Nicholas Fairbairn
If the argument is correct that reducing the period would make people concentrate on the welfare of their children, presumably a statutory period of separation of seven days would benefit the children.
§ Lord James Douglas-Hamilton
Those are matters of judgment and balance. I suggest that my hon. and learned Friend is going a little too far.
I could say an awful lot about charities, but many hon. Members referred to the legal services, so I will deal with some of the important amendments that will be tabled in that regard. A Government amendment will be tabled in Committee to make regulations under clauses 15 and 17 subject to the affirmative resolution procedure in both 228 Houses of Parliament. Regulations under clause 15 will deal with the registration criteria for conveyancing practitioners and the codes of conduct and practice that will govern such practitioners once they are registered. Regulations under clause 70 will cover the conduct and practice of executry practitioners and the educational qualifications and practical training that will be required of those undertaking executry business.
There is also considerable merit in the proposition that bodies applying for rights of audience or rights to conduct litigation under clause 23 should make their application available for public inspection, and that the Lord President and the Secretary of State should have regard to objections received when considering whether to grant such an application. Therefore, amendments will be tabled requiring those making the application to advertise that fact and to make copies of the draft scheme for regulating their members' exercise of any practising rights available for public inspection. The Lord President and the Secretary of State will then be required to consider any representations made about any application by outside bodies before reaching a final decision.
§ Mr. Wilson
Does the Minister agree that the list of Government amendments of which he is giving notice at the Dispatch Box, in addition to the fact that we will have at most five weeks to consider the Bill, contributes to the feeling that we are facing a period of chaos in an attempt to pass this important legislation? Will he respond to the point which is supported by Members on both sides of the House: that the Government should take the Bill away and reconsider it or we should extend its consideration beyond the summer?
§ Lord James Douglas-Hamilton
I have no doubt that, just as the hon. Member for Falkirk, East was able to persuade hon. Members to rise to the occasion when he took his Bill through the House, so we shall rise to the occasion and be capable of serving our constituents well enough to sit long enough to do justice to this measure.
We also believe that there is need for a review procedure for rules, and we shall introduce proposals on that subject.
The ombudsman will certainly have teeth, as hon. Members have requested. We propose to extend the list of exclusions from eligibility for the post of Scottish legal services ombudsman to members and officers of the Scottish Conveyancing and Executry Services Board and conveyancing and executry practitioners and their employers.
§ Lord James Douglas-Hamilton
I will not give way because I am anxious in the short time available to deal with the whole issue of conveyancing.
It is important that solicitors should be fairly treated. A vital point is that conveyancing practitioners must offer prospective clients an interview close to home or to the property being conveyed before any instructions are accepted. It must be with a qualified person—that is, a solicitor or, in time, a qualified conveyancer—and that will be dealt with by way of regulations.
Similarly, each service must be priced separately so that clients can see if cheap conveyancing is being paid for from elsewhere. Also, each transaction must be supervised by a qualified person with whom the client will be able to deal 229 on a personal level. Agency arrangements will be possible, with conveyancing practitioners employing local solicitors to do conveyancing work, including interviews, for them.
The hon. Member for Garscadden asked whether banks and building societies would do conveyancing. Hon. Members will have noted from the briefing circulated by the Council of Mortgage Lenders that it is unlikely that large institutions will wish to operate as conveyancers outside large population centres. That is a further reassurance that the viability of legal practices in rural areas will not be compromised.
It has been argued that rural solicitors will see a large proportion of their fee income removed by competition. The argument is that such solicitors are able to stay in business only because of the fees they receive. In such circumstances, it could be suggested that conveyancing fees are higher than they need be to provide a fair return on the provision of conveyancing services in isolation. Neither the Secretary of State nor I accept that the imposition of what may be high conveyancing fees is necessarily the best way of maintaining the existing network of rural solicitors' offices.
§ Mrs. Margaret Ewing
No hon. Member has suggested at any stage in the debate that higher fees are being charged for conveyancing in rural practices. We have pointed out that as much as 80 per cent. of the income of those practices is dependent on conveyancing fees. That is the bread and butter of those offices. If they lose that, they will not be able to provide the other vital services.
§ Lord James Douglas-Hamilton
I understood that the suggestion was that there had been cross—subsidisationthe hon. and learned Member for Fife, North-East (Mr. Campbell) used that expression—although I accept that the hon. Lady did not say that.
We have undertaken research to establish the present accessability of the people of Scotland to solicitors' offices. The results of that exercise are now available and I am placing copies of the report in the Library. Using the most recent available data, we see that 98 per cent. of the population of Scotland live within five miles of a solicitor's office in urban areas and within 10 miles in rural areas. [HON. MEMBERS: "Rubbish."] It is not rubbish. We have conducted a survey. Furthermore, we will repeat the survey, probably in 1993, to monitor the situation and compare the position, recognising that any change will be the product of a number of factors.
The argument that rural solicitors will suffer substantially also implies that the location and structure of solicitors' practices will be unchanging over time were it not for the effects of the Bill. That is not so. The solicitors' profession is far from static: it is continually changing in response to factors such as clients' needs, population shifts and trends in practice. There has been a trend towards larger practices, reflecting increasing complexity in the law and of clients' needs. We believe that this dynamic process is bound to lead to a shifting geographical pattern of outlets and to amalgamations and regroupings.
One important feature of the conveyancing code of practice to be made in regulations will be the free interview with a solicitor or qualified conveyancer, which all practitioners will be obliged to offer—
§ Mr. Menzies Campbell
If the legislation will lead to amalgamations and regroupings, how will that increase choice, given that the client will have fewer firms of solicitors from which to choose?
§ Lord James Douglas-Hamilton
The hon. and learned Gentleman will find, I think, that many rural solicitors will be used on an agency basis, a system which will grow. Years ago, advocates put the same argument, saying that they were very much against solicitors taking on divorces in the sheriff courts since it was argued that that would be taking away their bread and butter work. The Bar has doubled since then, and its work has increased out of all recognition.
It will be a function of the board to monitor the interview and personal contact obligations that I have outlined to ensure that prospective and actual plans received the degree of individual attention that they require. We shall look with particular care at these provisions. I am aware of the misgivings that have been expressed by hon. Members on both sides of the House, so we shall be especially careful when we scrutinise this part of the Bill.
As for Sunday opening of off-sales premises and public houses: religious organisations have expressed regret about the permitting of off licences on Sundays. I have received more than 50 letters on behalf of Kirk Sessions and other religious bodies expressing concern. Other bodies have welcomed the provisions in the Bill, which reflect the majority view of those who responded to the consultation document—
§ Lord James Douglas-Hamilton
I have only a few moments left.
There is a clear demand for off-licence premises to be opened on Sundays, and the Scottish Office's view is that the period of 12.30 pm to 10 pm strikes the right balance. The Bill proposes no addition to present Sunday opening of pubs, because the overwhelming majority of response were strongly against that, on the grounds that the traditional Scottish Sunday is a time of peace and quiet.
§ Lord James Douglas-Hamilton
The hon. Member for Edinburgh, Central (Mr. Darling) asked what was meant by "locality" in clause 39 (1)(b).
That is a matter for the judgment of the licensing board in the circumstances of the particular case. The board must take full view of whether the locality can be drawn narrowly or widely and must set the benefits to the community of the extension applied for against any detriment to the locality—
§ Mr. Darling
If the board will have that much discretion, it will be able to drive a coach and horses through the provisions which the Minister tells us will improve matters. He will really have to do better than that next time around.
§ Lord James Douglas-Hamilton
I believe that the tightening up of late-night licensing will be warmly welcomed by the hon. Gentleman's constituents and by many others in city centres. Children's certificates will also be welcomed, as they will help with tourists.
The part of the Bill that might be referred to as having been called for by the hon. Member for Clydesdale (Mr. 231 Hood) has already been mentioned. On this matter, we have taken the acton required. The main objective is to make certain that we have a regime that minimises the scope for sales of alcohol in off-licences to under-aged persons—
§ Lord James Douglas-Hamilton
The overwhelming majority of responses on that have gone against what the hon. Gentleman has said, but we shall examine the matter with care in Committee.
Hon. Members have raised many issues, and it has not been possible to answer all of them in the brief time available. I have no doubt that we shall return to every one of the issues of concern. The Scottish Office will listen to what is said with the utmost care and will respond accordingly to all the issues that are pursued. We believe that the Bill as a whole will, if enacted, confer significant benefits on the people of Scotland. It will make the regulatory regime for charities more transparent and effective. It will provide practical benefits in terms of wider choice for the users of legal services. It will provide useful reforms of the liquor licensing regime and other important improvements. I commend the Bill to the House.
§ Question put, That the amendment be made:—
§ The House divided: Ayes 154, Noes 207.234
|Division No. 228]||[10 pm|
|Abbott, Ms Diane||Dunnachie, Jimmy|
|Allen, Graham||Dunwoody, Hon Mrs Gwyneth|
|Alton, David||Eastham, Ken|
|Armstrong, Hilary||Evans, John (St Helens N)|
|Ashton, Joe||Ewing, Harry (Falkirk E)|
|Banks, Tony (Newham NW)||Ewing, Mrs Margaret (Moray)|
|Barnes, Harry (Derbyshire NE)||Fearn, Ronald|
|Barron, Kevin||Field, Frank (Birkenhead)|
|Beckett, Margaret||Fields, Terry (L'pool B G'n)|
|Beith, A. J.||Flannery, Martin|
|Benn, Rt Hon Tony||Flynn, Paul|
|Bermingham, Gerald||Foster, Derek|
|Bidwell, Sydney||Foulkes, George|
|Boateng, Paul||Fyfe, Maria|
|Bradley, Keith||Godman, Dr Norman A.|
|Brown, Gordon (D'mline E)||Golding, Mrs Llin|
|Brown, Nicholas (Newcastle E)||Gordon, Mildred|
|Bruce, Malcolm (Gordon)||Graham, Thomas|
|Buchan, Norman||Grant, Bernie (Tottenham)|
|Buckley, George J.||Griffiths, Nigel (Edinburgh S)|
|Campbell, Menzies (Fife NE)||Griffiths, Win (Bridgend)|
|Campbell, Ron (Blyth Valley)||Grocott, Bruce|
|Campbell-Savours, D. N.||Haynes, Frank|
|Canavan, Dennis||Heal, Mrs Sylvia|
|Carlile, Alex (Mont'g)||Hinchliffe, David|
|Carr, Michael||Hogg, N. (C'nauld & Kilsyth)|
|Clark, Dr David (S Shields)||Home Robertson, John|
|Clelland, David||Hughes, John (Coventry NE)|
|Clwyd, Mrs Ann||Hughes, Robert (Aberdeen N)|
|Cook, Robin (Livingston)||Hughes, Roy (Newport E)|
|Corbyn, Jeremy||Ingram, Adam|
|Cox, Tom||Janner, Greville|
|Crowther, Stan||Johnston, Sir Russell|
|Cryer, Bob||Jones, Barry (Alyn & Deeside)|
|Cummings, John||Jones, Ieuan (Ynys Môn)|
|Cunliffe, Lawrence||Jones, Martyn (Clwyd S W)|
|Cunningham, Dr John||Kennedy, Charles|
|Dalyell, Tam||Kirkwood, Archy|
|Darling, Alistair||Leighton, Ron|
|Davies, Ron (Caerphilly)||Lestor, Joan (Eccles)|
|Davis, Terry (B'ham Hodge H'l)||Lewis, Terry|
|Dewar, Donald||Livingstone, Ken|
|Dixon, Don||Livsey, Richard|
|Doran, Frank||Lloyd, Tony (Stretford)|
|Duffy, A. E. P.||Lofthouse, Geoffrey|
|Loyden, Eddie||Richardson, Jo|
|McAllion, John||Robertson, George|
|McAvoy, Thomas||Robinson, Geoffrey|
|McCartney, Ian||Rogers, Allan|
|Macdonald, Calum A.||Rowlands, Ted|
|McFall, John||Ruddock, Joan|
|McKelvey, William||Shore, Rt Hon Peter|
|McLeish, Henry||Skinner, Dennis|
|Maclennan, Robert||Smith, C. (Isl'ton & F'bury)|
|McNamara, Kevin||Smith, Rt Hon J. (Monk'ds E)|
|McWilliam, John||Snape, Peter|
|Madden, Max||Soley, Clive|
|Mahon, Mrs Alice||Spearing, Nigel|
|Marek, Dr John||Steel, Rt Hon Sir David|
|Martin, Michael J. (Springburn)||Steinberg, Gerry|
|Martlew, Eric||Stott, Roger|
|Maxton, John||Strang, Gavin|
|Michael, Alun||Taylor, Mrs Ann (Dewsbury)|
|Michie, Bill (Sheffield Heeley)||Turner, Dennis|
|Michie, Mrs Ray (Arg'l & Bute)||Wallace, James|
|Morgan, Rhodri||Wardell, Gareth (Gower)|
|Morris, Rt Hon J. (Aberavon)||Watson, Mike (Glasgow, C)|
|Mullin, Chris||Welsh, Andrew (Angus E)|
|Nellist, Dave||Welsh, Michael (Doncaster N)|
|O'Brien, William||Williams, Alan W. (Carm'then)|
|Orme, Rt Hon Stanley||Wilson, Brian|
|Parry, Robert||Winnick, David|
|Patchett, Terry||Wise, Mrs Audrey|
|Powell, Ray (Ogmore)||Worthington, Tony|
|Prescott, John||Wray, Jimmy|
|Quin, Ms Joyce|
|Redmond, Martin||Tellers for the Ayes:|
|Rees, Rt Hon Merlyn||Mr. Alien Adams and Mr. Allen McKay.|
|Reid, Dr John|
|Adley, Robert||Dunn, Bob|
|Alexander, Richard||Eggar, Tim|
|Alison, Rt Hon Michael||Evennett, David|
|Allason, Rupert||Fallon, Michael|
|Amess, David||Favell, Tony|
|Amos, Alan||Field, Barry (Isle of Wight)|
|Arbuthnot, James||Finsberg, Sir Geoffrey|
|Arnold, Jacques (Gravesham)||Fishburn, John Dudley|
|Arnold, Tom (Hazel Grove)||Forman, Nigel|
|Atkins, Robert||Forsyth, Michael (Stirling)|
|Baker, Nicholas (Dorset N)||Fowler, Rt Hon Sir Norman|
|Bellingham, Henry||Fox, Sir Marcus|
|Bennett, Nicholas (Pembroke)||Franks, Cecil|
|Bevan, David Gilroy||Freeman, Roger|
|Blackburn, Dr John G.||French, Douglas|
|Bottomley, Peter||Fry, Peter|
|Bowden, Gerald (Dulwich)||Garel-Jones, Tristan|
|Braine, Rt Hon Sir Bernard||Gill, Christopher|
|Brandon-Bravo, Martin||Glyn, Dr Sir Alan|
|Brown, Michael (Brigg & Cl't's)||Goodhart, Sir Philip|
|Bruce, Ian (Dorset South)||Goodlad, Alastair|
|Buchanan-Smith, Rt Hon Alick||Gow, Ian|
|Buck, Sir Antony||Greenway, Harry (Ealing N)|
|Burns, Simon||Griffiths, Peter (Portsmouth N)|
|Burt, Alistair||Ground, Patrick|
|Butcher, John||Hague, William|
|Butler, Chris||Hampson, Dr Keith|
|Carlisle, John, (Luton N)||Hanley, Jeremy|
|Carlisle, Kenneth (Lincoln)||Hannam, John|
|Carrington, Matthew||Hargreaves, A. (B'ham H'll Gr')|
|Carttiss, Michael||Harris, David|
|Chapman, Sydney||Haselhurst, Alan|
|Chope, Christopher||Hawkins, Christopher|
|Clark, Sir W. (Croydon S)||Hayes, Jerry|
|Conway, Derek||Hayhoe, Rt Hon Sir Barney|
|Coombs, Anthony (Wyre F'rest)||Heathcoat-Amory, David|
|Cope, Rt Hon John||Hicks, Mrs Maureen (Wolv' NE)|
|Cormack, Patrick||Hicks, Robert (Cornwall SE)|
|Currie, Mrs Edwina||Hill, James|
|Day, Stephen||Howarth, G. (Cannock & B'wd)|
|Devlin, Tim||Howe, Rt Hon Sir Geoffrey|
|Dicks, Terry||Howell, Ralph (North Norfolk)|
|Douglas-Hamilton, Lord James||Hughes, Robert G. (Harrow W)|
|Dover, Den||Hunt, Sir John (Ravensboume)|
|Irvine, Michael||Patten, Rt Hon Chris (Bath)|
|Jack, Michael||Pawsey, James|
|Jones, Robert B (Herts W)||Peacock, Mrs Elizabeth|
|Key, Robert||Porter, Barry (Wirral S)|
|Kilfedder, James||Porter, David (Waveney)|
|King, Rt Hon Tom (Bridgwater)||Powell, William (Corby)|
|Knight, Dame Jill (Edgbaston)||Price, Sir David|
|Knowles, Michael||Raffan, Keith|
|Knox, David||Raison, Rt Hon Timothy|
|Lang, Ian||Rathbone, Tim|
|Lawrence, Ivan||Redwood, John|
|Lee, John (Pendle)||Renton, Rt Hon Tim|
|Leigh, Edward (Gainsbor'gh)||Rhodes James, Robert|
|Lester, Jim (Broxtowe)||Riddick, Graham|
|Lightbown, David||Ridley, Rt Hon Nicholas|
|Lilley, Peter||Ridsdale, Sir Julian|
|Lloyd, Peter (Fareham)||Rifkind, Rt Hon Malcolm|
|Luce, Rt Hon Richard||Roberts, Wyn (Conwy)|
|Lyell, Rt Hon Sir Nicholas||Rossi, Sir Hugh|
|Macfarlane, Sir Neil||Rost, Peter|
|MacKay, Andrew (E Berkshire)||Rowe, Andrew|
|Maclean, David||Ryder, Richard|
|McLoughlin, Patrick||Sackville, Hon Tom|
|McNair-Wilson, Sir Michael||Shaw, David (Dover)|
|Malins, Humfrey||Shaw, Sir Giles (Pudsey)|
|Mans, Keith||Shaw, Sir Michael (Scarb')|
|Marland, Paul||Shelton, Sir William|
|Marshall, Michael (Arundel)||Shephard, Mrs G. (Norfolk SW)|
|Martin, David (Portsmouth S)||Shepherd, Colin (Hereford)|
|Maude, Hon Francis||Sims, Roger|
|Maxwell-Hyslop, Robin||Skeet, Sir Trevor|
|Mayhew, Rt Hon Sir Patrick||Smith, Tim (Beaconsfield)|
|Mills, Iain||Speed, Keith|
|Mitchell, Andrew (Gedling)||Stanbrook, Ivor|
|Mitchell, Sir David||Stanley, Rt Hon Sir John|
|Moate, Roger||Steen, Anthony|
|Monro, Sir Hector||Stern, Michael|
|Montgomery, Sir Fergus||Stevens, Lewis|
|Morrison, Sir Charles||Stewart, Allan (Eastwood)|
|Moynihan, Hon Colin||Stewart, Andy (Sherwood)|
|Neale, Gerrard||Stradling Thomas, Sir John|
|Nelson, Anthony||Sumberg, David|
|Neubert, Michael||Summerson, Hugo|
|Nicholson, David (Taunton)||Taylor, Ian (Esher)|
|Nicholson, Emma (Devon West)||Taylor, Teddy (S'end E)|
|Norris, Steve||Temple-Morris, Peter|
|Oppenheim, Phillip||Thompson, D. (Calder Valley)|
|Page, Richard||Thompson, Patrick (Norwich N)|
|Paice, James||Thornton, Malcolm|
|Thurnham, Peter||Wiggin, Jerry|
|Townsend, Cyril D. (B'heath)||Wilkinson, John|
|Tredinnick, David||Winterton, Mrs Ann|
|Trotter, Neville||Winterton, Nicholas|
|Twinn, Dr Ian||Wolfson, Mark|
|Waddington, Rt Hon David||Wood, Timothy|
|Walden, George||Yeo, Tim|
|Walker, Bill (Tside North)||Young, Sir George (Acton)|
|Wardle, Charles (Bexhill)|
|Warren, Kenneth||Tellers for the Noes:|
|Watts, John||Mr. Tony Durant and|
|Wells, Bowen||Mr. Irvine Patrick.|
§ Question accordingly negatived.
§ Main Question put and agreed to.
§ Bill accordingly read a Second time, and committed to a Standing Committee pursuant to Standing Order No. 61 (Committal of Bills).