HL Deb 27 April 1950 vol 166 cc1213-5

4.11 p.m.

An Amendment reported (according to Order).

Clause 27 [Saving]:

THE PARLIAMENTARY SECRETARY, MINISTRY OF WORKS (LORD MORRISON) moved to add to the clause: (2) For the avoidance of doubt it is hereby declared that in relation to proceedings in which the sheriff has jurisdiction by virtue of the provisions of this Act there are the same rights of appeal and of remit to the Court of Session as there are in relation to the like proceedings in which the sheriff has jurisdiction otherwise than by virtue of the said provisions.

The noble Lord said: My Lords, under certain provisions of this Bill new grounds of jurisdiction are conferred on the sheriff—for example, under Clause 6 he is given jurisdiction to entertain an action of separation and aliment if the pursuer is resident within the sheriffdom. His usual jurisdiction is determined by reference to the defender. Doubt has been expressed whether in these cases there is the like right to appeal to the Court of Session against the sheriff's judgment or the like right to have the case remitted for trial in the Court of Session as is available in similar types of case coming before the sheriff in the exercise of his ordinary jurisdiction. The doubt is based on the ground that similar jurisdiction is not conferred by the Bill on the Court of Session. It is not thought that there is any real ground for doubting the competence of the Court of Session to entertain appeals or remits in these cases, but as the doubt has been raised it is thought better to set it at rest by an express provision in the Bill, rather than to leave it to be the subject of litigation. I beg to move.

Amendment moved— Page 17, line 14, at end insert the said subsection.—(Lord Morrison.)

4.13 p.m.


My Lords I should like to say a word upon this question. This Bill enables actions of great importance to be raised in Scotland in new circumstances where there would not otherwise have been jurisdiction. One of them is an action of separation and aliment, corresponding to divorce a mensa et toro. Under the Bill, the initiation of these actions is confined to the sheriff court. In normal circumstances one would expect that an action of this importance could competently be raised in the Court of Session, but I recognise that there are difficulties involved—which I need not specify—in making that Court competent. In this particular case I regret those difficulties; I think it would have been much better if they could have been overcome, but in the circumstances, which are known to me, I do not wish to take exception to the omission of the original Court of Sessions jurisdiction. Of course, if an action of such importance cannot be raised originally in the Court of Session it is vital that there should be a right of appeal.

In existing sheriff court procedure there is a convenient method by which the case can be remitted, where there is a suitable occasional court of the Court of Session, before anything is done in the sheriff court, so that the inquiry takes place in the Court of Session. That is not a procedure which one would expect to contemplate very often, but it would be very convenient on occasion. As the noble Lord said, doubts were entertained. I shared in them, particularly with regard to the competence of remitting under the Bill as it previously stood. I think it is very much to the good that those doubts have been resolved, and especially that they have been resolved in what appears to me to be the right way. Therefore, while I have expressed certain regrets that this Amendment does not go far enough, it is a considerable improvement on the Bill as it stood.

On Question, Amendment agreed to.