HL Deb 02 December 1965 vol 270 cc1380-400

3.23 p.m.

Order of the Day for the Second Reading read.


My Lords, I beg to move that this Bill be now read a second time. It is concerned with the reform of several aspects of civil law and one aspect of criminal law in Scotland. The provisions deal very largely with what is sometimes called lawyers' law, but, none the less, for the most part they have a not unimportant impact on the interests of the citizen, and as a group they justify the Bill's Title by making the law more consistent, modern, convenient and accessible. They are, as I am confident your Lordships will agree, substantially uncontroversial, at any rate in their import, and I commend them to the House as an earnest of the Government's intention to maintain steady progress in the field of law reform. The provisions of the Bill deal to a considerable extent with specialities of the law of Scotland, and some of them are rather technical in character. It may therefore be for your Lordships' convenience if I outline their general effect.

The first clause exempts wages and salaries from the process of arrestment on the dependence of an action. For those of your Lordships who are not familiar with our law in Scotland, I should perhaps explain that arrestment on the dependence of an action is a freezing of funds in the hands of a third party to meet a debt for which the arrestor has raised, or is about to raise, an action. Its use is merely to preserve the property to be available to the creditor if he obtains judgment. The Government share the view which was expressed by the McKechnie Committee on Diligence in 1958, that it is not right that a person should have his wages arrested and perhaps run into difficulties for a debt that has still to be proved. Clause 1 of the Bill would obviate this for the future.

The second clause also implements a recommendation of the McKechnie Committee by removing in Scotland the privilege whereby the salaries and wages of Crown servants are free from arrestment for debt. This privilege is of very long standing—at least as far back as the seventeenth century—but, whatever may have been the justification for protecting the remuneration of Crown servants in this way, there seems no reasonable warrant for it in the very different circumstances of to-day. I should perhaps remind your Lordships that the present protection is of very wide application, extending not only to civil servants, in the narrow sense of that term, but to all industrial employees of the Government. The Government's view is that it should be entirely removed. It is proposed, however, again in agreement with the McKechnie Committee's recommendation, to except the pay of serving members of Her Majesty's Forces. Here, the circumstances are rather special; there are obvious complications arising, for example, from foreign service and mobility generally, and there is already statutory provision for deductions from pay for maintenance under a court order.

Clause 3 and Clause 4 would make good certain minor shortcomings in the law concerning adopted persons. Clause 3 of the Bill would fill in what the Court of Session recently pointed to as a gap in the Adoption Act 1958. That Act, in its application to Scotland, requires the consent of the person to be adopted when he or she is a minor—that is, a girl between 12 and 21, or a boy between 14 and 21. In a case of mental disability, where the consent cannot be given, the adoption cannot take place, however much it might be for the benefit of the child. Clause 3 would enable the court to dispense with consent where they are satisfied that the minor is incapable of giving it.

Clause 4 deals with what appears to be an unforeseen consequence of a provision in last year's Succession (Scotland) Act. With the commencement of that Act, adopted persons obtained rights of succession to their adopters, and lost the corresponding rights as regards natural parents. This has the effect that, if the adopter died before the Act, the adopted person would have had no succession rights to his estate; yet under the Act he loses the right of succession to his natural parents who die after the Act. Accordingly, Clause 4 of the Bill would enable such a person, whose adopter had died before the Succession Act, to succeed to the estate of natural parents who die after the Bill becomes law.

Clause 5 deals with the periods for which, under a settlement, income of property may be accumulated. In 1800 Parliament, in order to check the mischief which it was considered would arise from accumulation of income for very prolonged periods, enacted the Accumulations Act, better known, I believe, as the Thellusson Act, which extended to Scotland as well as to England and Wales. Its provisions so far as Scotland is concerned were essentially re-enacted in the Trusts (Scotland) Act 1961. The general effect is to limit accumulations to any one of four periods: the life of the person making the settlement, twenty-one years from his death, and two alternative minorities—that of persons in existence at the time of his death and of persons who, under the settlement, would be entitled to the income if they were of full age.

Last year, in accordance with a recommendation of the English Law Reform Committee, Section 13 of the Perpetuities and Accumulations Act added for England and Wales the two additional periods now proposed for Scotland in this Bill. The first of these is a period of 21 years from the date of the settlement. As matters stand at present, a grantor has no immediate fixed period of years open to him. He can direct that when he dies income shall be accumulated throughout the ensuing 21 years. It seems anomalous that he may not direct the accumulation of income for a 21-year period running during his lifetime, and the first of the additional periods proposed in the clause would enable him to do so. Secondly, under the existing rule he can direct accumulation for the minority of anyone in being at his death; but he may direct accumulation for the minority of anyone in being at the time of the settlement only where that person will be entitled to the income on attaining majority.

The second of the additional periods now proposed would enable accumulation during the minority of a person in being at the time of settlement in the same way as during the minority of a person in being at the date of the settler's death, without any condition about the destination of the income at the end of the accumulation. The second subsection of this clause is merely declaratory of the law on two aspects on which I understand doubt has occasionally been expressed. It makes clear that the statutory restrictions on accumulation apply in the case where accumulation is permitted by the settlement, as well as where it is directed; and that the restrictions apply in the case of accumulations by simple interest as well as by compound interest. These declaratory provisions are also included in the Perpetuities and Accumulations Act 1964 to which I have referred.

Clause 6 is concerned with the admissibility of records as evidence. It applies to civil proceedings in Scotland provisions very similar to those introduced for criminal proceedings by the Criminal Evidence Act 1965. In the case where there are records kept from information supplied by persons who have, or may be presumed to have, first-hand knowledge, the court may admit the record as evidence if the person supplying the particular information for the record is inaccessible or could not reasonably be expected to remember the matter. The provisions in general follow those of the Criminal Evidence Act 1965 to which I have referred. But "record" is defined somewhat more broadly, not being confined to trade or business records; clearly, in the interests of freedom of the subject, the limits in criminal procedure had to be rather tightly drawn. The law of England and Wales, I understand, has already comparable provision under the Evidence Act 1938. The general subject is, as your Lordships will be aware, very highly technical. But I believe that what is proposed in the clause will remove strict requirements that can in practice be troublesome, and yet provide all due safeguards for justice.

Clause 7 has the general effect of enabling parties affected by orders by the Court of Session for maintenance, and custody of and access to children, to apply for variations to the sheriff court. These orders are made in most cases in connection with divorce. As matters stand at present, where the Court of Session on granting divorce makes an order regarding maintenance and custody, with provision for variation, a party seeking variation of the order, even in very minor respects, must return to the Court of Session. This is inconvenient and expensive for the parties, and means that the time of the Court of Session is taken up with matters that could be very competently dealt with by the sheriff court, who are well accustomed to deal with the subject in relation to judicial separation. Clause 7 would enable a party desiring to have such an order varied or recalled to have recourse alternatively to the sheriff court having jurisdiction over the other party. The present proposal merely permits certain questions of maintenance, and as regards children custody and access to be determined by the sheriff court; and it has no bearing at all on the Court of Session's exclusive jurisdiction on divorce.

I should inform your Lordships, however, that certain criticisms of this clause have been communicated to the Government. These are in the sense that there is advantage in retaining the Court of Session's exclusive jurisdiction in these matters, especially on questions of custody. They might be grouped under two heads—that it is improper for the decision of a higher court to be reviewed by a lower: and that the sheriff would not have available to him the background that was available to the Court of Session judge who heard the case in the first instance so that, presumably, the sheriff would have to go over all that ground himself again, to the delay, trouble and expense of the parties. One must weigh these criticisms very carefully, but I doubt whether the objections are as strong as they sound. What the higher court has done, in these cases, is to give leave to the parties to apply for a variation when new circumstances arise. What the clause does is to allow this application to be made, if the party so desires, in the sheriff court. This is not overruling the higher court's decision: it is providing a convenient way to give effect to it: and it is permissive. And in considering the second objection, that the sheriff would not have the background available to the Court of Session judge, it should be kept in mind that although it may be arranged, where practicable, that the application for variation is considered by the judge who made the original order, his personal recollection will be of value only in the relatively few cases where there has been a defended proof, with both parties giving evidence.

The Government's intention is simply, as I have indicated, to ensure that the procedure is as convenient and inexpensive as is consistent with efficiency, and they think it proper to take the fullest account of any misgivings expressed about whether the clause in its present form would have this result. They remain of opinion that provision should be made to enable these incidental questions to be dealt with by the sheriff courts in the appropriate case so that parties need not sustain the additional expenditure and inconvenience which litigation in the Court of Session in Edinburgh inevitably entails. On the other hand, having regard to the views to which I have referred, the Government would be prepared so to amend the clause that the sheriff court's jurisdiction would apply only where both parties agreed to it. This would mean that the very evident advantages of the sheriff court would be available where both parties desired, but that either party would be entitled to have the application brought before the Court of Session if he or she so preferred.

The limitation, I suggest, would be appropriate to matters of custody, access and education, where it can perhaps be argued that the connection with the circumstances of the divorce action is more immediate, rather than to aliment; but if it is your Lordships' considered view that the proviso for consent by both parties should extend also to aliment, the Government would not be disposed to press the point. I would ask your Lordships to keep this consideration in mind in examining this clause. Let me sum up the position in another way. Some, perhaps very many, of the applications that we are considering are of minor importance. It seems difficult to insist that, however trivial, they must take up the time of the Court of Session if the parties are prepared to have the matter decided by the sheriff, particularly where, as often happens, they live in the same area. I hope that with these explanations the clause will commend itself to your Lordships.

Clause 8 proposes a minor, but not unimportant, change in the law relating to summary criminal appeals, the need for which has been represented to the Government by the Scottish Law Commission. The Government are glad to have had the opportunity to propose legislation so speedily on the first suggestion made to them by the Commission. We hope it is a happy augury for the future. The law relating to appeal by stated case lays down a timetable for the various stages of the appeal; and contains provisions which have the result that the appellant's right of appeal is lost if he does not adhere to the timetable. The clause would enable the High Court, on application, to deal at its discretion with cases of failure to meet the timetable at two points where difficulty has been occurring. It would allow the court to extend, where it thinks proper, the five-day period within which appeal must be lodged, and also the five-day period within which, after receipt of the final stated case from the lower court, it must be lodged with the High Court of Justiciary.

The final substantive provision, Clause 9, is a minor one concerning Acts of Adjournal and Acts of Sederunt. For those of your Lordships who are not familiar with our law in Scotland, may I say that Acts of Adjournal are rules passed by the High Court of Justiciary for regulating procedure there and in the inferior criminal courts, and that Acts of Sederunt are rules made by the Court of Session, dealing with civil court procedure and related matters. The purport of the clause is that Acts of Sederunt and of Adjournal to be made under Acts of Parliament enacted after the commencement of the Statutory Instruments Act 1946 should, unless the particular enabling Act otherwise provides, be statutory instruments as are those already made under enabling Statutes before that Act. As matters stand, it is now necessary to have a somewhat cumbrous special provision in each enabling Act. The broad intention is to establish in general, for the convenience of those consulting the law, that Acts of Adjournal and of Sederunt will be available in the published volumes of statutory instruments, subject to the same exemptions from publication as apply to statutory instruments generally.

Before concluding, I should like, if I have your Lordships' permission, to mention a point which presented itself to the Government after the Bill was introduced, and which it is proposed, subject to your Lordships giving the Bill its Second Reading, to deal with by an amendment in Committee. Under the Wages Arrestment (Limitation) (Scotland) Act 1870, as amended by subsequent Acts, there is provision for protecting part of a worker's wages from arrestment for debt; this part is fixed by the Wages Arrestment Limitation (Amendment) (Scotland) Act 1960 as £4 plus half of the remainder of the worker's weekly wages. The figure of £4 fixed in 1960 obviously is now due for review, and the Government accordingly have accepted a recommendation of the McKechnie Committee to which I earlier referred that power should be taken to vary from time to time by statutory instrument the amount protected from arrestment.

In inviting your Lordships' support for this Bill, there is one possible criticism which I may perhaps be permitted to forestall. It may be suggested that in some respects the Bill does not go far enough. I have some sympathy with this point of view. I believe, to give only one instance, there is very considerable scope for further improvement in the law of diligence. But the Government had the choice of introducing changes which in their view were immediately necessary, comparatively uncontroversial, and capable of being dealt with in isolation: or on the other hand of holding matters up until it was possible to reach conclusions over a much wider field. The Government feel that the right principle here is to lose no time in promoting individual changes that are already seen to be manifestly desirable, even if the review of other aspects of the same field of law is not completed. In other words, if we wait until we can legislate over the whole field, we shall have to wait a very much longer time indeed.

I am confident your Lordships will agree that this is the best way to achieve progress. The Scottish Law Commission are already addressing themselves, like their English counterpart, to the review of extensive branches of the law, and the Government have no doubt that the general pace of reform as a whole will be greatly accelerated through their work.

My Lords, I hope that the House will find it possible to give a Second Reading to this Bill.

Moved, That the Bill be now read 2a.—(Lord Hughes.)

3.45 p.m.


My Lords, I should like to thank the noble Lord, Lord Hughes, for explaining so very clearly to the House the aims and purposes behind this Bill. It is, as he pointed out, something of a legislative rag-bag, but it is none the less useful in that it does set out to close some gaps in the law of Scotland and iron out some few anomalies. I should like to say at once that with most of these proposals we are in complete agreement and believe that the Bill will serve greatly to strengthen our Scottish law.

I do not intend to take up any of your Lordships' time this afternoon by commenting on the various clauses in the Bill. Most of them, as the noble Lord said, are substantially uncontroversial. I am also aware that one or two of my noble and learned friends whose particular province this is, have points they wish to raise and this is no moment for a layman to stand in their way. I was going to ask the noble Lord a question about the arrestment of wages, but at the end of his speech he answered it for me, and I am very grateful for that. I understand that an Amendment will be introduced on this matter in Committee.

Perhaps the only other point that is worrying quite a few of your Lordships is the question of Clause 7. The noble Lord went to very great pains to explain why this clause is necessary, and I am most grateful to him for the trouble he took. I must say that I am not yet completely convinced by what he said. In the first place, although this is not of prime importance, this clause does not seem to be based on any recommendation that I know of or on any desire to tie in with the English legal system; and it still seems to me (although I accept at once that many of the cases referred to by the noble Lord are minor cases) a somewhat bad precedent that some of these cases, which indeed are difficult and often very complex and which may have been contested very bitterly in the Court of Session, should be able to be heard by a lower court by a person seeking to vary an order.

I believe we are all thinking of complex and difficult cases which for instance involve the custody of children. Certainly it is most unlikely that any sheriff court could possibly be aware of all the difficult issues involved in such cases. I have the very highest opinion of the sheriff courts, but I feel that this clause seems to ask them to shoulder a burden of responsibility which they should not be asked to shoulder. I realise of course, as the noble Lord pointed out, that this clause is permissive and designed with the most laudable object of saving time and expense. But I am certain that none of your Lordships would wish this to be, or even possibly to be, at the expense of justice; so I ask the noble Lord, even now, to have another look at this clause in general.

I am grateful to the noble Lord for the amendment that he suggested he might make to it, and I think that this would make the clause better. But I should be grateful if he would have another look at the clause and at the principle behind it, because I am not certain that it is as we should like it. I know that the noble Lord wishes this Bill to be as good as we can make it, but I do not believe that all the implications of Clause 7 have been sufficiently thought through. As I said at the beginning, I do not wish to take the time of the House. We agree with nearly all the provisions in this Bill. We think that Clause 7 is a blemish on it; but the Bill in general is a useful one, on which we congratulate the Government, and I am certain that it deserves the support of your Lordships' House.

3.50 p.m.


My Lords, I am glad to be able to join with the noble Marquess, Lord Lothian, in welcoming the majority of the proposals in this Law Reform Bill. I have only two points of criticism in relation to it. My first point of criticism is in regard to Clause 5(2), which imposes further restrictions on accumulation of income and which, I understand from the noble Lord, Lord Hughes, who has introduced the Bill, follows the recent reform of the English law. I see no reason to object to subsection (1). In order to appreciate the effect of subsection (2), it is necessary to be a little technical about it. As the noble Lord has already explained, the Thellusson Act 1800 forbade certain accumulations which are directed by settlement from going beyond certain periods. These periods are reproduced in Section 5 of the Trusts (Scotland) Act 1961. As has been said, subsection (1) further restricts these periods. However, subsection (2) says this: It is hereby declared that the restrictions imposed by the said section 5 apply in relation to a power to accumulate income whether or not there is a duty to exercise that power… I stop there, because that is the provision which I think should be criticised.

As I understand the law, this involves a change in the law. The noble Lord, Lord Hughes, said he understood that it was to clarify the law. There may be doubts as to how far the law has gone, but as I understand the law at present, it is this: if the inevitable effect of the directions in a settlement is that accumulation must take place, then in those circumstances there must be an implied direction to accumulate. But this clause goes much further than that, because it says that, if there is a power to accumulate, that is equivalent to a direction to accumulate. The effect of this clause upon charitable trusts will be most unfortunate. I am informed that, if this clause is passed in its present form, it will compel charitable trustees to distribute the whole of the income, where the deed merely gives them power to accumulate, if in any year they find it unnecessary to expend all the income; and if they had not expended all the income, then the income would go to the trustees as personal representatives. I think that that would have an undesirable effect on the administration of charitable trusts.

I understood the noble Lord, Lord Hughes, to say that this provision is supposed to be for the clarity of the law. There may be a difference of opinion about that. But I would like to know from whom this proposal emanated. I am told that none of the professions in Scotland has been consulted about this alleged declaration of the law. I am told that no law reform committee has examined it. I have information that the judges in the Court of Session do not approve of this alteration in the law, as they see it. If the law has been stated in cases over the years to a certain effect, it appears to me to be undesirable that there should be a gloss put upon that statement of the law by incorporating this subsection, which I humbly submit appears to be a change in the law. I hope very much that before the Committee stage the Government will look again at this matter and see whether it would not be more desirable to drop the clause until some body, such as the Law Commission, has had an opportunity of considering it.

The other clause of which I think valid criticism is to be made is Clause 7, which, as the noble Lord has already told your Lordships, gives the sheriff substitute a right to vary or recall a decision of the Court of Session on aliment, custody and access. As he said, quite rightly, the Court of Session at present has exclusive jurisdiction in regard to divorces. Whether that is right or not may be a question for the future, but that is the position at the present time. And in making a criticism of this clause, I do not wish in the least to belittle the powers or responsibilities of the sheriff court by pointing out the inconvenience which will inevitably result if this clause is carried in its present form.

Many divorces are fought purely upon considerations of custody and access, and the question of the matrimonial offence is a minor incident in the case, and as your Lordships know, on matters of custody and access it is very difficult to arrive at a decision. In these cases all the facts are gone into before the judge at the Court of Session and he is apprised of the situation, and upon these facts he comes to a decision one way or the other. If this clause goes forward in its present form, it will be open to the disappointed party in the litigation to go before the sheriff court and, upon a plea of change of circumstance, to attempt to get a decision of the judge in the Court of Session altered.

In the first place, I think that it is undesirable that that should take place. It would be extremely inconvenient, because all the facts would have to be gone into again before the sheriff substitute, causing additional expense, whereas the judge in the Court of Session would have the notes of evidence before him and no doubt would be able to remind himself very quickly of the facts on which his decision was based. I would have thought, with respect, that the proper person to consider whether there should be a variation of his order would be the judge who pronounced it.

Worse than that, unless some Amendment or alteration is made in this clause, one might have the situation in which the same issues are being litigated in two courts simultaneously. The Court of Session would be considering one application and the sheriff court would be considering another, and there is nothing to stop either of these courts from arriving at contradictory decisions. It humbly appears to me that this clause is inconvenient, impracticable and unnecessary, and I hope that the Government will see their way to drop it. I am not really sufficiently acquainted with the proposal which the noble Lord has made for the amendment of it, but, as at present advised, I do not see that it gets rid of the difficulties to which I have referred. I thought it proper to make these few observations on Second Reading because, unless the points which I have made are dealt with, I would propose to put down Amendments at Committee stage.

4.0 p.m.


My Lords, the noble Lord, Lord Hughes, was rather apologetic about introducing this Bill. I do not think that he need have been. It certainly appears to me that, provided Parliamentary time can be made available, there is no objection at all to having small instalments frequently brought before us. I entirely agree with him that if he has something which is urgent and on which, let us say, the Law Commission has pronounced, we should have it and not wait for a larger group of amendments next year.

Some of the amendments in this Bill are very small indeed. I do not think any of them, apart from two which I will mention in a moment, and those mentioned by my noble and learned friend, can be objected to. But do not let us represent, for example, that Clause 6, as an amendment of the law of evidence, is anything more than a tiny bite at the whole subject. I hope that this does not mean that another bite will not be forthcoming very soon, because, to my mind, the law of evidence is riddled with anomalies, and I do not think it can be cleared up at one go. I know that a full inquiry is going on in Scotland, but I hope they will not wait until they get the whole matter cleared up.

That brings me to the function of the Law Commission. I quite understand that, as the Law Commission is a novelty, it may have been thought proper not to submit this Bill to them before it was submitted to the House. I think that was a wrong decision. So far as the recommendations in this Bill are not already covered by recommendations of other Committees, I think they ought to have been put before the Law Commission before being put in the Bill. I am sure that if Clause 7 had been put before the Law Commission before being put in a Bill, we should not have had it in its present form, and we should have saved a good deal of the time of the House. I hope that the noble Lord will be able to assure us, now that the Law Commission is in full working order, that in future Bills of this kind will not be submitted to Parliament until a report from the Law Commission has been obtained about all the proposals. Of course, there may be very urgent matters where that might be impracticable. I cannot think of one offhand and in the course of a fairly long experience of legal reform I cannot remember a Bill which has been quite so urgent as that. But, subject to that qualification, I hope the practice will now be established that Bills of this character are not brought before Parliament until the Law Commission has reported on their proposals.

So far as Clause 7 is concerned, I could not possibly accept it in its present form. But I think there is something to be said for allowing these matters to be dealt with in the sheriff court if both parties agree. It is unlikely that both parties will agree if the matter has been the subject of acute controversy in the Court of Session; but I entirely agree that there are a number of people with small means (that does not matter so much now that there is legal aid; but, still, it does matter to some extent) who would be quite pleased—both parties—to have a comparatively minor matter settled in the sheriff court. I hope the noble Lord will assure us that the Government propose to put down an Amendment, and that other Members of the House will not have to undertake that task, at least until they have seen the Government Amendment. If the noble Lord can assure us that the Government Amendment will be put down in ample time, so that other noble Lords who do not fully agree with it can put down an alternative Amendment, I think that would be useful.

To my mind, the right solution would be that before going to the sheriff court the party who proposes to go there should take with him a statement by the other party expressly agreeing that the matter in controversy shall be dealt with by the sheriff. That ought not to exclude the right of appeal, if this becomes necessary later. Sometimes agreements are held to exclude the right of appeal, but this would have to be so drafted that it did not. I do not think there are any other points on which I wish to comment at this stage. My main general comment is that I hope in future the Law Commission will be asked to do that which it is their proper function to do.

4.5 p.m.


My Lords, I rise to intervene only briefly, but I should like to seek some information under one head from the noble Lord. I welcome what he said about Clauses 5 and 6, when he indicated that the Scottish Law Commission were thinking on the same lines as their English counterpart. From that I deduce that the changes he is recommending to us are tending to bring the Law of Scotland and the Law of England more closely together. I would ask the noble Lord to give the House a clear assurance that in the preparation of this Bill the Scottish Law Commission have had that consideration in mind throughout, and that all the changes which he is proposing to us now, where they are material, tend to narrow, rather than widen, the differences between the two systems. These differences may seem small to people who live in London, where the Border is a long way off, but they can be very tedious to public authorities, the police and the people who live in the counties on both sides of the Border.

In particular, I would ask the noble Lord to consider before the Committee stage whether it is not possible for him to introduce some Amendment which will enable offences to be taken into consideration. I am advised that at the present time it is impossible to have offences taken into consideration in Scotland if they have occurred in England, and vice versa, despite the fact that the offences may be common to both countries. When noble Lords imagine the work of benches of magistrates in this modern motoring age, with a series of offences being committed, for example, on the A.6, some on the English side of the Border and some on the Scottish side, you will see not only the extra trouble to which those responsible for the administration of justice are put, but also how extra burdensome this can be to accused persons. I should not have thought it would be difficult for the noble Lord to try, at a later stage, to recommend some provision which meets this point. Then I think the battle-cry that he gave us when he opened his speech, that the Law of Scotland was indeed to be made modern, convenient and accessible, would be more justified.

4.8 p.m.


My Lords, there are just two points which I would mention arising out of Clause 7. In dealing with Clause 7, the noble Lord did so largely from the point of view of inconvenience and expense to the parties. Can he say whether the proposed procedure would reduce delay in any way? Would it be more likely that the case would be disposed of more quickly if it went to the lower court rather than the higher court? I would also ask the noble Lord this question, arising out of the speech of the noble and learned Lord, Lord Guest. The noble Lord said that while the Court of Session judge—who presumably, for obvious reasons, would not be the Judge who heard the original case—


My Lords, may I intervene on that point? As I understand it, it is the practice of the Court of Session to ensure, so far as possible, that the same judge hears the case afterwards. But, of course, that cannot be guaranteed. It is more frequently heard by the same judge than the other way round.


I said "for obvious reasons", because the judge might have gone to a still higher tribunal by that time. I take it that whichever judge hears the case in the Court of Session would have the notes of evidence or transcript of proceedings. Is there any reason why a sheriff substitute should not have the notes of evidence or the transcript of proceedings in the Court of Session?

4.10 p.m.


My Lords, I should like first of all to deal with the point raised by the noble Lord, Lord Inglewood. He caused me to look very hurriedly at my notes, because I was rather appalled to find that I had created in his mind the impression that the primary purpose of the Scottish Law Commission was to bring the Scottish law into conformity with the English law. That is not what I said. What I said was that the Scottish Law Commission, like their English counterpart, were addressing themselves to the review of extensive branches of the law. That does not necessarily mean that they are going to equate it with English law. What is the case, however, is that where it is reasonable, in the interests of amendment of the Scottish law, to make it conform to a better pattern South of the Border, that will be done; and I should hope that a reverse traffic may take place from the point of view of the English Law Commission. In some of these cases the amendments which are being proposed are identical to improvements already effective South of the Border.

On the other point which the noble Lord raised about taking offences into consideration, I was about to say that it is a point of which I had no previous notice. But I have just been handed a note about it, so I had better try to read it. The doctrine of taking offences into consideration does not apply in Scots law. But it is competent in Scotland to prove or admit previous offences committed in England. I hope, therefore, that that goes part of the way to help the noble Lord.


My Lords, I am sorry to interrupt the noble Lord, but would he consult with the chief constables of the counties North of the Border and assure himself that the point I was making is a valid one? He could achieve great improvement if he could think of something which goes a little wider.


My Lords, I am not sure I can give that undertaking, but what I will undertake to do is to ask my right honourable friend the Lord Advocate what he thinks about it, because, after all, he has heard it just as well as I have.

May I say that I am grateful for the welcome which has been expressed to the Bill by all noble Lords who have spoken, beginning with the noble Marquess, Lord Lothian, and then the noble and learned Lords, Lord Guest and Lord Reid. As my remarks indicated, I anticipated to a certain extent the criticism of Clause 7. I also had some indication from the noble and learned Lord, Lord Guest, of his intention to query the position relating to Clause 5. I am not quite certain that any further amendment to Clause 5 is necessary, but I must say without hesitation that the Government will take careful consideration of what the noble and learned Lord has said, and I may take the opportunity of having a word with the noble Lord before the next stage of proceedings on the Bill.

The noble and learned Lord, Lord Reid, asked what consultations had taken place with the Law Commission. I think it is correct to say that he had rather assumed that there had not been any consultations with the Law Commission. It would not have been surprising if there had not, because one of the difficulties in connection with these little legal Bills—and I am particularly grateful for Lord Reid's kind comments about there being no need to apologise for a little Bill in this way—is that if you do not seize the opportunity in the Parliamentary timetable which presents itself, it goes for the rest of the Session. This presented a problem to the Government in this connection. If we moved quickly, we could get a Bill; if we waited, we had to fight for a place in the programme with matters which perhaps had a wider appeal than a Bill of this nature. But I am glad to be able to say that the Government did keep the Commission informed of the provisions of the Bill. The Commission did not offer observations, but they themselves were good enough to suggest a possible improvement to clarify Clause 5. The noble and learned Lords will both be glad to hear that the Government have this matter under consideration at the present time. They also suggested the addition of the provisions which are now incorporated in Clause 8.

On Clause 5, the Commission had no observations to make in connection with what we had in the Bill, but they raised another point of a somewhat technical nature, on which I do not propose to offer any comment at this stage. In relation to the point raised by the noble and learned Lord, Lord Reid, on the question of the law of evidence, I can assure him that we also consider that this is only the first bite, and we have begun in this modest way only because we have accepted the principle that it is better to legislate on the little that you can, rather than to wait a long time to get the whole field dealt with. As opportunity offers we will bring other aspects before the House.

I do not think that either of the noble and learned Lords gave perhaps as full consideration as I had hoped—I cannot blame them for that, because the noble Lord, Lord Reid, heard it for the first time to-day, and the whole Lord, Lord Guest, had only a very brief reference from me on the telephone—to the possibility that something along these lines might be done. But I think the possibility that we have suggested, that this course should be taken only where both parties are agreed, would cover all, or almost all, of the points that have been raised. I want to say quite clearly that it is not the Government's intention that the unsuccessful party should have an opportunity of having another go in a second court.

The noble Lord, Lord Drumalbyn, raised two points in connection with Clause 7. First, did we consider that there would be more speed in taking the question to the sheriff court? Yes, we think that by and large that would be the position. One cannot say that it would always be the position, but generally we think that would be so. The second point was on the notes of evidence. So far as I understand it, there are no notes of evidence in these cases.


My Lords, may I interrupt the noble Lord? I am afraid he is misinformed. In every case which comes before the Court of Session all the evidence is taken down in shorthand and is available.


I phrased my words badly, because I was going on to say—except in the cases which are defended.


I am sorry to interrupt again. I said that in every case which comes before the Court of Session the evidence is taken down in shorthand and is available.


In that case I stand corrected, but, as I understand it, it would be possible for that evidence to be made available to the sheriff court. However, it seems to me to be a matter of relative unimportance if we adopt the suggested amendment of going to the sheriff court only in cases where both parties are agreed; because in the sort of case which was mentioned, of bitterly contested actions of custody, it is almost certain to be found that one or other of the parties would object to the possible hazard in going to another court because they might lose what they had already gained in the Court of Session.

The last point to which I wish to make reference is the suggestion by the noble and learned Lord, Lord Reid, that the Amendment, or Amendments, to Clause 7 should be Government Amendments, and that they should be tabled in ample time to enable Members of your Lordships' House who did not think the Amendments went all the way that they wanted, to table an alternative Amendment. That I gladly undertake to do, and if the noble and learned Lords were prepared to go with me I would go further; I should be prepared to have consultation with them before tabling the Government Amendment, in the hope that it could be tabled in an agreed form. I am sure my right honourable friend the Lord Advocate would be quite happy to join with me in that undertaking.


My Lords, certainly; I am sure that would be very satisfactory.


My Lords, before the noble Lord, Lord Hughes, sits down, might I point out to him, in regard to this question of notes of evidence, that it will be necessary in any Amendment which is proposed that they should be provided for, because if application were made to the sheriff substitute that would be a new application, and the process would be in the Court of Session and would not be transmitted to the sheriff court unless some special provision were made for it. So perhaps in drafting his Amendment the noble Lord would have this in mind.


My Lords, this makes it all the more satisfactory that the noble and learned Lord, Lord Reid, has so readily agreed to be consulted in the preparation of that Amendment; and if he is speaking on behalf of the noble and learned Lord, Lord Guest, also, then when the Government come back to the House, if we have an Amendment which is not acceptable to the noble and learned Lords we shall have only ourselves to blame.

I think your Lordships have agreed that the Government have, generally speaking, produced an uncontroversial Bill but a useful one and one which will be an advantage to a minority, but a necessary advantage to that minority, of Her Majesty's subjects. I hope that after further discussion before the next stage, we may be able to limit the field of controversy still further by removing it from Clauses 5 and 7.

On Question, Bill read 2a, and committed to a Committee of the Whole House.

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