HL Deb 05 February 1948 vol 153 cc886-900

Order of the Day for the House to be put into Committee read.


My Lords, I beg to move that the House do now resolve itself into Committee.

Moved, That the House do now resolve itself into Committee.—(Lord Morrison.)

LORD SALTOUN had given Notice of an Amendment to leave out all words after "That" and insert "the Order of the House be discharged and that the Bill be referred to a Select Committee." The noble Lord said: My Lords, on the question whether this Bill should now be considered in Committee, I have an Amendment on the Paper for the reference of the Bill to a Select Committee. I have put down that Amendment for a large number of reasons, and I will be as short as I can in dealing with them. In the first place, this measure is a very complicated one. The question involved is not altogether a legal matter; it is largely a matter of book-keeping. I have taken the trouble to go to Edinburgh to make inquiries about the present system and to consider whether the new procedure which is proposed in this Bill is an improvement or not. All I shall say on that point at the moment is that the question is one which I think your Lordships in a Committee of this House would find difficult to decide. For that reason I think it would be more appropriate to refer it to a Select Committee, the more so because the Select Committee would be able to hear evidence on the point.

I do not want to go into the history of this question, because we went into it, to some extent, on Second Reading, and many of your Lordships may remember it. The position, however, is this. The changes in the Bill were recommended by a Committee which reported in 1928. The Report met with widespread protest in Scotland, and there the matter was left. The Committee sat again in 1932 and reaffirmed their original decision, but in view of strong protests from competent circles in Scotland the Report was pigeonholed and was never brought forward. My noble friend opposite told us on Second Reading that this Report: had now been reconsidered by a Committee of Solicitors in (I think) June of last year, and that they had no comment to make on the proposals. It was also approved by a small Treasury Committee, and it has. now beer, brought forward in the form of a Bill.

I think the noble Lord is under the impression that the whole storm which is now raging in Scotland is due to the fact that a firm of searchers circularized the various legal bodies, and aroused them to excitement over this matter. It is true that these bodies were circularized, but I do not think that the facts bear quite the complexion suggested. What happened was. that the various legal bodies did not know what was being proposed until a firm of searchers drew their attention to it. Then they took alarm and used their most instant endeavours to get something done. If your Lordships consider the circumstances I think you will realize that that is all that has happened.

I belong to a body which is not in the least affected by this measure—the Society of Chartered Accountants in Edinburgh. If I have any trouble in regard to business or anything, and I try to rouse the Committee of the Chartered Accountants in Edinburgh to a sense of my wrongs, I have to be very able in the way I go about it. They are not in the least inclined to take lire, and your Lordships may have absolute confidence that the Committee of Solicitors of the; Supreme Court in Edinburgh and the Committee of the Law Agents' Society of Scotland are not in the least likely to take fire merely because they have been rung up on this matter by a particular firm of searchers.

But, now that their attention has been drawn to the subject, I think it is right to let your Lordships know the exact state of opinion, in professional circles in Scotland, so far as it can be ascertained. Of thirty-six societies, twenty-nine are against the Bill, one has decided to take no action, and, of the remaining six, one is Midlothian, which is practically comprised in the Edinburgh societies, and some of the remaining five have not yet been able to hold meetings.

It is quite possible to say—and I think probably my noble friend opposite will feel this to be so—that most of these societies are country societies which are quite unfamiliar with the processes of the Register House in Edinburgh. That is perfectly true. The country societies are evidence to your Lordships of the general feeling in Scotland, and if this Bill goes through in the ordinary way their confidence will be shaken. But the Law Agents' Society of Scotland and the Society of Solicitors of the Supreme Court are people who are at the top of the legal profession in Scotland. Generally speaking, they have a thorough knowledge of the whole proceedings of the Register House, and their opinion deserves to be taken into consideration as expert opinion. Moreover, I may tell your Lordships that in the conferences which I have had with these learned gentlemen they told me that if this Bill were sent to a Select Committee by your Lordships' House they would be satisfied, whichever way the matter went, because they would have had an opportunity of stating their case and of having it heard in a judicial and dispassionate manner.

I know that the Committee which reported in favour of the procedure laid down in this Bill was a very able Committee, presided over by a very able gentleman, and I should be the first to recognize that other able gentlemen support the changes which are proposed. But, although the circumstances of the case are precisely what they were in 1932, and the Report of the Committee has precisely the same relevance as it had in 1932, I also submit that the opposition, which is as lively to-day as it was in 1932, is entitled to the same weight as it had in 1932. It may not be so widespread, because the various bodies have not had the same warning, and the matter has been sprung on them rather more sud- denly. Finally, may I say that it seems to me very appropriate to send to a Select Committee a Bill which is founded on a Report that has been pigeon-holed for fifteen years. When an old Report that cannot be acted on at the time has been allowed to be entirely forgotten and is then suddenly brought forward and made the basis of legislation, I think it ought always to be received by Parliament with caution. I beg to move.

Amendment moved— Leave out all words after ("that") and insert ("that the Order of the House be discharged and that the Bill be referred to a Select Committee").—(Lord Saltoun.)

4.18 p.m.


My Lords, I would like to say one word on this Bill. I am a Scotsman, but a layman in these affairs. Scottish law and practice is extremely confusing to those who are not initiated in it. Anyone who has examined this Bill will see just how complicated it is. It is a non-Party Bill but it is highly contentious within the profession concerned. Although only a few people are affected they are concerned vitally. I think the choice before us is the choice of the right instrument of Legislature, and I believe that there is a great deal of force in the argument of my noble friend Lord Saltoun when he says that a Select Committee is the appropriate instrument to deal with it, so that justice can be seen to have been done. Otherwise I feel that the House is being asked to give its assent to a Bill, the provisions of which it cannot entirely comprehend.

4.20 p.m.


My Lords, I was very much impressed by the speech which was made by the noble Lord, Lord Saltoun. I agree with him that this is a Scottish Bill which affects everyone in Scotland. It is one of those Bills which, occupying the time of your Lordships, as it does, affords a very good illustration of the benefits that would accrue from devolution of Scottish affairs. If ever we have that devolution so that the management of Scottish affairs is put into the hands of the Scottish people, your Lordships will be saved the time and trouble of listening to debates such as this. The Bill is concerned with the Scottish Records Office and also with Land Registers. As regards the Scottish Records Office, I do not think there is any difference of opinion in Scotland about the advantage of having such an institution. Indeed, it is in keeping with the finding of the Advisory Committee on Records, which reported in 1937. This idea has now, belatedly, been put into this Bill.

As to the Land Register part of the Bill, there is considerable difference of opinion. Lord Saltoun suggests that this part of the Bill should be submitted to a Select Committee. I do not know who would be appointed to serve on that Committee. I do not know whether it would be just a Committee of this House or a Committee of both Houses. But, lately, the Secretary of State for Scotland has arranged for a Scottish Economic Conference. Members of that Conference will be representative of all kinds of public bodies and public interests in Scotland, and I feel that instead of having the differential points of this Bill discussed by a Select Committee of both Houses of Parliament it would be better to make use of this new Scottish Economic Conference. The organization of this Conference, I understand, is to be completed by the end of April, and it will be functioning in May. As there is no dispute about the first part of the Bill, no discussion upon it would be required. It is practically all agreed.

The latter part of the Bill, however, is a different matter, and I suggest that the Scottish Economic Conference should be instructed to discuss it, review it and report. When that has been done, the whole Bill may be brought in. It would be an agreed measure and it would go through both Houses of Parliament without any interference, as it would represent the considered opinion of the Scottish people. I think, further, that what I have suggested would be a good way of testing this Conference, of having a preliminary gallop, so to speak. It would enable us to see what the Conference is going to do and how it will work. If it does well, there will be encouragement for allowing it to continue. If, on the other hand, it makes a mess of a simple Bill of this sort, then it is done for. I should certainly like to move that instead of referring this Bill to a Select Committee it should be referred to the Scottish Economic Conference with the object of making it an agreed measure.


My Lords, presumably if this Bill is referred to a Select Committee, that Select Committee would confer with the new Economic Council to which the noble Duke has just referred. In any case, I think that the best course to follow would be to send this Bill to a Select Committee, and so provide an opportunity for its improvement. Lord Saltoun has said that there are comparatively few professional people who will be affected by this Bill. Let me add that those people, few though they may be in the whole of Scotland, represent a great many people and interests, and it: is for the benefit of the majority of those who have an interest in land that this Bill should be most carefully considered before any suggestion of doing away with the minute book is carried into law. Personally, I think it would be a great mistake to do away with the minute book, because it is an exceedingly valuable document. If it were no longer kept, all sorts of disputes would arise as to who owned this, that or the otter. I think that the proposal in this connexion is the biggest mistake in this Bill. There is no such thing in England, of course; this is a purely Scottish measure and it ought to be considered by those who are most affected—namely, Scotsmen.


My Lords, I speak as a lawyer of some experience in Scotland. I may say that we have a 6ystem of registration of which we are rightly proud and of which, I think, England may well be envious. I would view with anxiety any suggestion to make, in our system of registration in Scotland, any alteration which is not fully understood and also approved by the members of this House when they pass this Bill. It seems to me pretty clear that there is still great divergence of view regarding a number of matters in the Bill. That divergence exists amongst the parties most interested, the public and the legal profession in Scotland. I consider that the only satisfactory way of informing the House of the merits of the proposals in this Bill, and as to whether it will lead to the keeping of as good a system as our present one or an improvement on it, is to refer this matter to a Select Committee. Therefore, I support the Amendment of my noble friend Lord Saltoun.

4.26 p.m.


My Lords, may I be allowed, as a layman in this matter—one who is not at all an expert, but who has merely looked through the Bill—to add one word to this debate? I am afraid that after looking through the Bill I am little wiser than I was before I procured a copy of it. It is, I believe, quite in accordance with the practice of this House—the Lord Chancellor has better information on the point than I have, but I have inquired of the Clerk—in a proper case, when a public Bill comes before your Lordships at this stage, instead of passing it to a Committee of the Whole House, to pass it to a Select Committee. There is nothing wrong with that procedure; it is a recognized process which has been followed, I understand, many times. The question here is not a Party question at all. It is a question as to what is the best way for this House to deal with the matter.

It seems to me that if this Bill goes in the ordinary way to a Committee of the Whole House there will no doubt be some members capable of discussing it intelligently, clause by clause, knowing more about it than I do. But I am completely in the dark—as, I think, must be the great mass of members here—as to the merits of this matter. I simply do not know. The Bill might just as well be written in a foreign language which I do not understand. If it be the case that there is considerable difference of opinion as to whether these are good proposals or not—I know nothing as to whether or not that is so—we ought to be put in a position to understand what we are doing before we pass this Bill through the House. I hope that the noble Lord, Lord Morrison, will appreciate that I am saying nothing with the least desire to obstruct. It is simply that, having regard to the character of the Bill and its local application, its extreme technicality and the extent to which there appears to be a difference of view among those who have most reason to be concerned, I feel we must ask ourselves, as a responsible Chamber of the Legislature, whether we as a general House are able to proceed with this Bill without knowing more about it.

Your Lordships will have noticed with what authority the last speech was delivered. It is very seldom in this House that one of the Law Lords takes part in a debate. Lord Thankerton has not only had a very long experience of the Scottish Bar, but has also 'himself been Lord Advocate. He was in the House of Commons for years, acting in Scottish legal matters for the Government of the day. He is now a member of this House and a member of its judicial organization for the very purpose of securing that Scottish law is sufficiently understood. We all greatly value his contribution and his help, and therefore I ask that Lord Morrison will not give a stereotyped reply and say: "We will not do this." I hope he will consider seriously whether it is not right to do what has been suggested. If it is felt to be right, we shall in due course know what the Select Committee think. I shall certainly support the Bill with the greatest pleasure if it turns out, as very likely may be the case, that the Select Committee agree that the Bill should be proceeded with. They may say, "We have heard the opposition to it, but the opposition does not weigh at all against the arguments in favour." I apologize for intervening, but as a mere Sassenach I find that the Bill contains words which I cannot interpret. I doubt very much whether even the noble Lord, Lord Morrison, could put his hand on his heart and say," I have read the Report of Lord Fleming from one end to the other and I understand it all." I wonder. And if he does not understand, which of us not possessing his experience will be able to understand it?


My Lords, I would like to add my small voice to what has been said, and to beg the noble Lord who has this Bill in hand to take seriously into consideration the undoubted apprehension I know there is in Scotland and in this House. I beg earnestly to add to the appeal of my noble friends that, knowing the Scottish character as he does, he will accede to the request for a Select Committee. It is highly important for the future good will of all those in Scotland, in this House and in this country, that such a request should be acceded to.

4.33 p.m.


My Lords, I speak as a Scottish lawyer, like my noble friend Lord Thankerton, and also because for twelve years I had a certain responsibility in this question of Scottish Records and Scottish Registers. The Bill falls into two parts, and in so far as it provides in future for a separation of the offices of Keeper of Records and Keeper of Registers I feel that no well-informed person will wish to delay it for a single moment. That is a separation which has been recommended by the Advisory Council, sitting under Statute, and by the Standing Commission on Museums and Galleries. I was a party to that recommendation, and I think that it has never been opposed by anybody who has qualification to speak on the subject.

The other question of the minute book, as it may be called, is one which is highly debatable. It was investigated as long ago as 1922, and that was the last time it was investigated by anybody who had any authority to speak on the matter. In my view that inquiry is already out of date. If it was to be acted upon, it should have been acted upon soon after the Report was made. Apart from the controversy at present raging in Scotland about this part of the Bill, surely it is at least open to consideration whether it is not merely a patchwork, imposed upon an excellent system which has worn well for many centuries. If there is to be any alteration of the system, I feel that the time has now come for a more thorough-going reform than that contemplated by Lord Fleming. I should like to associate myself with the Amendment which has been moved by the noble Lord, Lord Saltoun.

4.35 p.m.


My Lords, after the considerable discussion that has taken place I am going to be perfectly candid; and I am sure that noble Lords, especially the noble and learned Viscount, Lord Simon, will fully understand my position. This Amendment appeared on the Order Paper for the first time this morning. In these circumstances, to adopt the attitude that has been recommended by noble Lords is beyond my power. I have no authority to do that. It is a matter for the Government to decide. The attitude of the Government, I am instructed and as I will indicate more fully in a moment, has been that the subject of this Bill was closely examined by the Fleming Committee, that it was evident that there were protests, and that four years later, as a result of those protests, the Committee were re-convened and asked to go into the whole question again. They did, and found that the protests were not substantiated. They therefore rejected the protestations and reaffirmed their previous decision.

When I moved the Second Reading of this Bill, there appeared the suggestion in one of the leading Scottish newspapers that I had misled the House by making your Lordships believe that the Bill was non-contentious. I do not know why that should be said by any responsible person. It was not said in this House by any responsible person. I will quote my exact words: I commence, therefore, by modestly saying that I doubt if this Bill is non-contentious, but that I hope I am on safe ground in describing it as a small, non-Party measure which I am sure will receive the careful consideration which it deserves. Then the statement was made, also in the Scottish Press, that I had said that the General Council of Solicitors in Scotland had raised no objection to the Bill. I made that statement, but I now understand, from further correspondence in these papers, that that point is also under dispute. I have not long been a member of your Lordships' House, but I hope that I have been a member long enough for your Lordships to realize that if I made a mistake or a wrong statement, or if I misled this House, I would not be the last person to say so frankly and apologize.

In this case I have nothing whatever to apologize for. I have since made myself more fully acquainted with the position, and it is this. The General Council of Solicitors in Scotland raised no objection to the proposals. The proposals, in the form of draft instructions for the preparation of this Bill, were reported to the General Council of Solicitors on June 23, 1947. On August 7, 1947, the Clerk to the General Council replied, and these were his words: As was indicated by the deputation from this Council which was received by the Secretary of State for Scotland yesterday, my Council have no representations to make regarding the proposals contained in your letter of June 23 last. No representations have since been made to the Scottish Office by the General Council and the statement which I made on Second Reading was one of fact. I observed that after the Second Reading debate the Clerk to the General Council wrote to The Scotsman, and the Glasgow Herald on January 26, referring to my remarks at a meeting of the Council in November last and concluding: My Council on consideration resolved to express no opinion regarding the proposals which were regarded as highly contentious. In view of the discussion this afternoon, may I refer to one further statement made by the noble Earl, Lord Stanhope, on the Second Reading? This is what he said: I think this is a measure which is long overdue. I was Chairman of the Standing Commission on Museums and Galleries… The sub-Committee of the Standing Commission found the records really were completely behind so far as their arrangement, their indexing and the rest of it, is concerned and they were nowhere near the standard which prevails in England. Quite rightly, I think, Scotland felt that something should be done about the matter…. I have recounted the facts, and I do not dispute at all what the noble Lord, Lord Saltoun, has done. I think he has rendered a considerable service in this matter. I have listened to almost every speech delivered in this Chamber during the last few days, and one point which arose and was strongly emphasized was that one of the principal functions of your Lordships' House is to see that the public are made fully acquainted with matters arising here. In that connexion the noble Lord, Lord Saltoun, has rendered a great service, because by his action in raising this matter on Second Reading he has undoubtedly stirred up a good deal of feeling, As a result of that, I have no doubt the people who are for various reasons opposing this Bill, or parts of it, or who are desiring to give further evidence about it, will get in touch with their representatives in another place. The Bill has not yet been to the other place. It has still to go through all its stages there, and will be considered by the Scottish Grand Committee. In those circumstances, I think that those who are opposing the Bill will have an adequate opportunity, through their elected representatives, to make representations which will undoubtedly be investigated in great detail by the Scottish Grand Committee.

For the reasons, first, that there has been no opportunity to take the advice that would be necessary before I could agree to accept this Amendment, and, secondly, that a Select Committee, in my opinion, would not greatly add anything to the knowledge of this Bill—I stand to be corrected by an authority like the noble and learned Viscount, but there seems to be some doubt as to whether this Select Committee would be of this House or both Houses—


There is no doubt that it would be a Committee of this House.


As I said, I stand to be corrected. If that is so, I rather think the Committee to be appointed would be a Committee of those noble Lords who have taken no part in this Bill up to now.


Why not?


I leave it at that. I have already pointed out that the Fleming Committee examined this question in 1928 and that it was referred to them again in 1932. I quite admit that the noble and learned Viscount, Lord Simon, is correct when he says that I cannot put my hand on my heart and say that I fully understand this Bill—


Neither can I.


In fact, I am quite prepared at this moment to put my hand on my heart and say that I do not fully understand it. There is nothing to be served by anyone pretending to be wiser about this than he is. I also freely assent to what the noble and learned Viscount and other noble Lords have said, that this is a complicated Bill. But in my short experience in your Lordships' House there have been other complicated Scottish Bills. There was the Town and Country Planning (Scotland) Bill, for example. Noble Lords from all parts of the House rose day after day to tell me that it was practically impossible for anyone to understand it. Yet no one suggested that that Bill should be sent to a Select Committee. Speaking for myself, I am afraid that if this were to be done, it would mean that other Scottish Bills as they came along would be referred to a private Committee and, as I say, that is not a matter which is within my power to determine. For those reasons, I regret that I am unable to make any other decision. If noble Lords opposite are determined, they have other means of forcing their will upon the House but, so far as I am concerned, I am instructed not to assent to this.


May I intervene to say this? I would like to assure the noble Lord, Lord Morrison, at once—because we all know that there is no more straightforward man in the House—that nobody has the least idea of reflecting upon him or upon any of his previous statements. Some of us have known the noble Lord for a good many years, and in our experience he has always been perfectly straightforward, as he is being perfectly straightforward now. Bat he did say on the Second Reading—and this really is the point—" I hope that this Bill will receive the careful consideration of this House." We really cannot give careful consideration to something of which we have no knowledge and which we do not understand. There is only one way in which that knowledge can be secured, and it is by having a Select Committee, which is, of course, a Select Committee of this House (there is no question of anything else) which can take evidence about the matter.

This proposal is not made for the purposes of delay; it is not done for the purposes of obstruction; and it is not done with any idea of a contest between Parties. There is no Party question about this. It is merely that I do not think your Lordships' House should accept the advice—if this is what is meant—that we should take this Bill practically blindfold because in the other place it will go before a Scottish Grand Committee which may understand it. We have our own duty, and our duty, I humbly suggest, is that without delay, obstruction or Party feeling, we should, in a proper case, take steps to understand what we are doing. That is all it amounts to. If the noble Lord will consider that proposal I feel it will be of advantage. I myself have not the slightest idea whether I would approve of this Bill or not. I do not resist it because it is produced by the Government, and I do not resist it because of what other people say about it. I simply do not know. I do not like passing legislation of this sort when I do not really understand what it is about. I hope that that point may be considered.

4.47 p.m.


My Lords, it is clear that the House is in a certain difficulty in this matter. It is not a Party matter. It is purely a technical matter with which your Lordships are usually accustomed to deal. But now we are up against something so technical that the greatest law experts do not think the House is competent to deal with it, and it ought to go before a special Committee. I do not think the noble Lord, Lord Morrison, really disagrees with that suggestion. He certainly does not refute it. He says that he is in a difficult position, because he has not had an opportunity of consulting his colleagues. We do not want to vote on this, and I wonder whether it would not be possible to adjourn the debate for a day or two, to enable the noble Lord to consult with his colleagues to see whether an agreed solution can be found. It would be quite in accordance with the custom of your Lordships' House and, I think, would probably be the best course to adopt.


Before the noble Marquess came into the Chamber, I think I had already pointed out—if not, I will now point it out—that on the Second Reading of the Bill the noble Lord, Lord Saltoun, appealed to me to use my influence to secure a longer time between the Second Reading and the Committee stage in order that the people interested might be consulted. I agreed to that, and the time was double what is normally allotted in this House. Unfortunately, the time does not appear to have proved sufficient for the purpose. I have already made myself perfectly clear as to how far I can go, but in the light of the debate it seems to me, from the point of view of common sense, that the wisest thing that this House can do is to allow me to move that the debate be adjourned. That would give further time and would not commit either the Government or the Opposition—I hesitate to use that term, because everybody admits that this is an entirely nonparty Bill. In order that those concerned may consult together, if the noble Lord, Lord Saltoun, will withdraw his Amendment, I will move that the debate be adjourned.


I should like, first of all, to thank very deeply those noble Lords, and especially the noble and learned Lords, who have supported me on this occasion, and to say that I entirely agree with the remarks of the noble Lord, Lord Normand, on Clause 1 of the Bill. I should like to thank my noble friend Lord Morrison, and to say that no word, or even hint, of mine lay at the bottom of any of the attacks on him. We have always been the best of friends, and I hope that we always shall be. I realize that everything he said was perfectly right. With those words, and thanking His Majesty's Government very much, I beg leave to withdraw the Amendment.


Do I understand that the position is that the debate is now adjourned?


The Motion I will put is simply that the debate be now adjourned.


I accept that.


My Lords, I now beg to move that this debate be now adjourned.

Moved, That the debate be now adjourned.—(Lord Morrison.)

On Question, Motion agreed to, and debate adjourned accordingly.