§ 6.50 p.m.
§ Order of the Day for the Second Reading read.
§ LORD HUGHES
My Lords, it has often been the opening gambit of the noble Lord, Lord Craigton, in presenting a Scottish Bill to your Lordships' House, to say, "This is a useful but little Bill." I did not think he would give me the opportunity of being responsible for a Bill to which the same adjectives could be applied. It is perhaps fortunate that this Bill, to which I now invite your Lordships to give a Second Reading, is not only useful and little, but has also received a complete non-Party welcome in another place.
The purpose of the Bill is to enable certain types of action to be handled in a cheaper and more expeditious form than is the case at the present time. The Bill is quite short and does four things. It raises from £50 to £250 the upper limit of civil jurisdiction of the sheriff's summary court. That is in Clause 1. In Clause 2, it raises from £20 to £50 the upper limit of civil jurisdiction in the sheriff's small debt court. In the first part of Clause 3, it makes it competent to bring action between spouses for interim aliment in the sheriff's small debt court, if the aliment claimed does not exceed £5 a week for the wife or husband (it is very rarely a husband, but it is possible), and £1 10s. a week for each child. Secondly, it makes it competent for either spouse to sue for the amount of interim aliment due in the sheriff court within the jurisdiction within which he or she resides. That is a new departure from normal Scottish legal procedure, which is based on residence, and the defender must be pursued to the sheriff court in whose jurisdiction he or she resides.
If I may go over these clauses briefly, the present procedure in summary causes is covered by the Sheriff Courts (Scotland) Act, 1907, and in this summary procedure the sheriff can order such procedure as he thinks requisite and can dispose of the cause without delay by interlocutor containing findings in fact and in law. A record of the evidence is not made unless the sheriff orders 1166 this on the motion of one of the parties. If such a record has been made, judgment is subject to review on questions of fact and of law, but if the evidence has not been recorded, only the findings in law are subject to review.
The parties to any action may consent that it may be tried summarily, otherwise the limit of summary cause jurisdiction is fixed, by Section 3 of the Act of 1907, at £50. This Bill raises that figure to £250, which is not unreasonable, having regard to the change in the value of money during the more than half a century which has elapsed. Your Lordships will appreciate that one of the effects of this—a side effect, which perhaps some people may consider undesirable—is to deprive certain people of the right of appeal which they have at the present moment. Because their case is between £50 and £250, it is not dealt with in summary fashion and is therefore appealable both in law and in fact, and that will not now be the case. It was felt in another place—and I hope that your Lordships will also feel—that this is not an unreasonable price to pay for the conveniences which will flow from bringing the amount to a more up-to-date figure.
The same principle lies behind increasing the limit in the sheriff's small debt court. The present figure is £20, exclusive of expenses. That relates to an Act passed in 1857, but I hasten to add that the level of £20 was not fixed in 1857. It has been subject to review, I do not know whether more than once, but the present £20 dates back also to 1907. It may well be argued that the £50 limit is lower than could be justified by the change in the value of money but, for a variety of reasons, we feel that £50 is perhaps a reasonable figure to substitute for the previous £20.
The third clause, and one of the most useful parts of this Bill, extends the jurisdiction for summary actions for interim aliment. There are many cases where a woman who has been deserted by her husband, and who wishes to take action of this kind, finds that she has to go to the High Court and go through a more formal procedure. The result has been to create a great deal of hardship, which I suppose, at the end of the day, is borne by the Government: because instead of being the immediate responsibility of her erring husband, she falls back on 1167 National Assistance. I would add that I am quite sure that my honourable friend who was responsible for introducing this Bill in another place did not do so merely with the intention of relieving the Government of this burden, but to give more effective help to the injured spouse as quickly as possible. Again this raises the point that a fairly large sum of money could be involved in this and an erring spouse (if that is the correct term to use at this stage) is also deprived of the right of appeal, except in the most remote circumstances. The cases where an appeal can be made are so few and so unlikely that there is virtually no right of appeal. But I submit to your Lordships that the balance of hardship is much greater on the part of the injured spouse in present circumstances than could possibly be conferred on the erring spouse if this change is brought about.
The final point, about enabling action to be raised in the sheriff court where the pursuer resides, is again in the interests of speedy remedy for the person who has been injured. If relief should be forthcoming, it is important that it should be done easily and speedily, and from that point of view I would particularly commend this provision to your Lordships.
My Lords, that covers the whole range of the Bill. The suggested date for its coming into operation is October 1 next. Any action in existence then will, of course, be dealt with under the present procedure. With these words, which I hope will commend themselves to your Lordships, and particularly to my noble friend the Minister of State, I beg to move that this little and useful Bill be given a Second Reading.
§ Moved, That the Bill be now read 2a.—(Lord Hughes.)
§ 6.59 p.m.
§ LORD GUEST
My Lords, it gives me great pleasure to congratulate the noble Lord, Lord Hughes, on introducing this Bill, which brings some of the provisions of the Sheriff Courts (Scotland) Act, 1907, up to date. It is an Amendment which has long been overdue. The limits of £20 and £50 respectively were fixed in 1907, and no one can deny that money values have decreased enormously since that date. I give the Bill a general welcome. My only criticism relates to Clause 3 1168 which, as the noble Lord, Lord Hughes, has said, confers upon the sheriff, sitting in his jurisdiction as a small debt court, jurisdiction to entertain actions for interim aliment where the sum awarded is not more than £5 a week for a wife and 30s for each child.
Interim aliment is really a misnomer, because all aliment is interim in the sense that it is conditional and may be varied at any time. But it has been decided quite recently in the courts in Scotland that an action directed by a wife against a husband, so long as the husband shall refuse to receive and entertain his wife, is an action of interim aliment, and is therefore competent. That would mean that a sheriff would have jurisdiction to award a sum of no less than £260 per annum for the wife, and up to £468 per annum in the case of a wife who has six children. These are very substantial sums, and when your Lordships are told that the only grounds upon which an appeal can be made against such a decision are to the High Court of Justiciary on grounds of corruption or malice and oppression, deviation of a formal procedure or incompetence, you will realise that this puts a substantial impediment in the way of a husband who feels that his case has been wrongly decided. It means that there is in fact no appeal on fact or law from a decision in a small debt action.
I believe that in the 50 years or thereby since this Act has been in force there have been only two successful appeals. The process is expensive, because it has to be at the High Court of Justiciary when that court is sitting, and the appellant has to employ counsel, and so really it is a useless appeal. In view of the jurisdiction conferred upon the small debt court, I should have been anxious to move an Amendment on the Committee stage to provide an appeal on questions of law; but I regret that, owing to technical difficulties, it is not possible to move that Amendment in this place.
I agree with what the noble Lord, Lord Hughes, said, that the balance may be in favour of expediency, but sometimes it is a mistake to sacrifice justice on the altar of expediency or economy. However, it is particularly desirable that such an appeal should be open when it is remembered that failure to implement a decree for aliment is still possible if followed by 1169 a civil imprisonment. I would ask the noble Lord, Lord Craigton, if and when this matter of the jurisdiction of the sheriff court is being considered, to consider if it is right that such a large jurisdiction should be conferred upon the small debt court without any real right of redress. But I have no doubt that sheriffs will, in exercise of their wise discretion, in the meantime, not make awards which would impose a substantial liability without any chance of redress. This might suitably be done by limiting the period for which interim aliment ran and leaving it to the pursuant wife to come again before the court if she wished that aliment to continue.
I wish to say only one word about Clause 3(2), which really gives a universal jurisdiction in the case of actions for interim aliment within any sheriffdom in Scotland. I think that is a highly desirable measure. I agree with the noble Lord, Lord Hughes, that there is really no substance in the objection that by increasing the upper limit in these actions you are denying any persons the right of appeal which they presently have. Of course that is true, to some extent; but one must not forget the fall in money values, and must remember that these actions are really for substantially less important cases than might otherwise have been thought. On the whole matter, I welcome the Bill and give it my blessing.
§ 7.4 p.m.
THE EARL OF MANSFIELD
My Lords, there are only one or two points I should like to mention. The first is that I must say that I do not quite understand why, when the limit of summary action has been raised from £50 to £250, the limit for a small debt has been raised only from £20 to £50. As the noble Lord, Lord Guest, in his most interesting speech pointed out, the principal Act was passed as long ago as 1907 and there has been a considerable fall in the value of money since then. I think it would be well for the Government to consider whether that maximum figure of £50 for the small debt court should not be raised to £100.
There is no doubt that this Bill, small though it may be—and I cannot say that I altogether agree about its smallness—is going to be of great benefit, because 1170 often in the past people who were owed a small amount, a little in excess of £20, hesitated before bringing an action, because as everyone who has had the misfortune to be in the law courts knows, even if you win and get your costs, those costs seldom, if ever, amount to what your real expenditure and out-of-pocket expenses are. There will now be opportunity taken of bringing legitimate actions, about which in many cases previously hesitation has been felt. The noble Lord, Lord Guest, has pointed out one decided blemish in the Bill, and I feel that the Government ought to consider carefully whether something can be done to correct it. Apart from that, there is no doubt that this is an excellent measure which will be widely appreciated throughout Scotland.
§ LORD CRAIGTON
My Lords, I have noted what was said by the noble Lord, Lord Guest, and my noble friend Lord Mansfield, and I can assure them that their constructive speeches will be examined whenever the first opportunity occurs. But this is a Private Member's Bill, and it is not for me either to wind up or to make any comments on the Bill itself. We as the Government welcome the measure. I do not twist Lord Hughes's tail about this; I congratulate him. Times change, and without little Bills of this nature the law would not reflect these changes So, with the congratulations and blessing of the Government, I hope your Lordships will approve this Bill.
§ LORD HUGHES
My Lords, I am grateful for the welcome which has been grateful given to this Bill, and I should like to thank the noble Lords, Lord Craigton and Lord Guest, and the noble Earl, Lord Mansfield, for their contributions. I must say right away that I cannot in logic disagree with what Lord Mansfield said about the differentiation between raising from £50 to £250, on the one hand, and from £20 to £50, on the other. I should think that the position stems from the fact that in another place, although they recognised that the value of money has changed very much, they could not bring themselves to regard a sum greater than £50, even in these modern times, as being a small debt; and sometimes in making changes of this kind it is better not to be completely logical.
1171 With regard to the possible injustice that may be done—and this is a point raised by the noble Lord, Lord Guest—on the action for interim aliment, and particularly on the misnomer about its interim nature, I understand it is difficult to make an Amendment of that nature at this stage without running the risk that there will be no Bill at all, because if it has to go back to another place, that, I think, will be the last we shall hear of it. I do not think that in practice there will be a great deal of hardship, or any at all, from this right of appeal, but one cannot say with certainty that it will not arise. An alteration of this nature, as I think the noble and learned Lord. Lord Guest, hinted, is one which could properly be considered by the Government 1172 in reviewing the jurisdiction procedure generally. But to incorporate a right of appeal of this kind in this measure, even assuming that we could get it put in, would be to enter into a wider field and to do something which would more properly, I think, be done at another time and in another measure. I thank your Lordships for the welcome you have given to this Bill and hope that in due course we shall be able to complete it in its present form.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.
§ House adjourned at eleven minutes past seven o'clock.