HL Deb 06 July 1971 vol 321 cc879-901

7.0 p.m.

THE MINISTER OF STATE, SCOTTISH OFFICE (BARONESS TWEEDSMUIR OF BELHELVIE)

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

Moved, That the House do now resolve itself into Committee.—(Baroness Tweedsmuir of Belhelvie.)

On Question, Motion agreed to.

House in Committee accordingly.

[The Lord Maybray-King in the Chair.]

Clauses 1 to 4 agreed to.

Clause 5 [Qualification for offices of sheriff principal and sheriff]:

LORD HUGHES

I have had representations made to me, as have a number of other noble Lords and I think the Minister, the noble Baroness, Lady Tweedsmuir of Belhelvie, from the Glasgow Bar Association, who have a number of comments to make on different parts of the Bill. On some of these I do not propose to take any action, because I am rather out of my depth on the merits of things being done by the Court of Session or the sheriff court, and probably this would be better done by an advocate or a solicitor. I therefore intend to leave these parts alone. There are, however, two aspects of the representations which I think are worthy of mention to the Committee.

The first is concerned with Clause 5 and also Clause 11, to which I shall not revert when we reach that clause; namely, the qualifying period for a sheriff. For a sheriff to hold the position permanently he must have at least 10 years' experience of qualification, but to be a temporary sheriff he requires to be qualified for only five years. The view has been expressed—and I must say that I feel a certain amount of sympathy with it—that as the powers of a sheriff, whether permanent or temporary, are the same, and the consideration that he must give to cases appearing before him is the same, there appears to be no reason why those who are fortunate or unfortunate enough to have their cases tried or heard before a sheriff who is only temporarily in office should have it done by a man with not more than half the experience. If this temporary sheriff were someone appearing for only the odd half day or so, then obviously the possible appearance of having the case dealt with by a less qualified man would affect only a comparatively small number of people. But I understand that it is not unusual for a temporary sheriff to hold office for a good many months on end, not necessarily in the same sheriffdom, but perhaps being sent from one sheriffdom to another, and this has given rise to a certain amount of dissatisfaction.

I think there is a certain justice in the view that, if it is laid down that a permanent sheriff must have 10 years' experience, the inference is that he is not going to be able to do the job satisfactorily if he has less than 10 years' experience. Yet you can have the situation of people appearing before a particular sheriff court over a period of many months maybe having a decision arrived at by a man who does not have that experience. If the stipulation for 10 years means anything. I think it is reasonable to take from it that some people are going to have their cases dealt with by a man who is poorly qualified. I am deliberately putting it in the worst possible way, because I understand that at the present time, until this Bill becomes an Act, the period of experience a sheriff must have is five years; and the Bill is in fact extending it to ten years for permanency, while leaving it at five years for temporary.

I would suggest that either the five-year period or the ten-year period is right in relation to the amount of experience that is necessary before a man should occupy the shrival bench. I cannot see any justification, now that it has been brought to my notice, for its being said that if he is going to be there for only a period of six months—or three months or five months, whatever the period may be—five years is sufficient, but that if he is going to be there all the time he might be doing a good deal of harm to people by not having the longer period of experience. I hope therefore that the noble Baroness, Lady Tweedsmuir of Belhelvie, will be able to reassure me as to the reasons why there should be these differing periods, which apparently do not exist at the present time and which, quite frankly, I do not understand.

7.11 p.m.

BARONESS TWEEDSMUIR OF BELHELVIE

I also have had the advantage of having the memorandum from the Glasgow Bar Association, and they did in very much earlier days—I think it was 1968—make representations on the Report of the Grant Committee. They suggested that the qualification for becoming a sheriff principal, or a sheriff as it will be under this Bill, should be raised from five years to ten years; and this has been done. The point raised by the noble Lord, and indeed by the Glasgow Bar Association, is whether this higher qualification should not also apply to temporary appointments which are usually made for a few months—say, if someone is ill or an occasion such as that.

For many years now we have had the qualification for the appointment of a sheriff principal of five years as an advocate or, if not an advocate, five years as a sheriff substitute; and for a sheriff substitute (who is now of course to be known as a sheriff) the person to be appointed must have been legally qualified as an advocate or a solicitor for five years. This system has run for a considerable number of years and, because one cannot always say that it is easy to obtain highly qualified people, and as for many years we have managed very well on this period of five years, which in practice has often worked out to be ten, we feel that for a purely temporary appointment we should leave matters as they are. The purely practical point is that it is not always easy to find someone of this length of experience who is available to fill in for a temporary appointment, and it is for this reason alone that the original qualifications are left for periods of temporary appointment.

LORD HUGHES

May I therefore ask the noble Baroness this question? I had better preface the question by saying that the person who comes to a particular sheriff court, if the permanent sheriff is there, at least has the satisfaction of knowing that this higher standard of experience is laid down and, whatever judgment is given in the case, it is being given by the man with this greater experience. People come along and find that for some unexpected reason—the sheriff is on holiday or has been taken ill—a comparatively young advocate is sitting on the bench instead. If they feel a grievance about the decision taken, it may well be aggravated by the fact that this comparatively inexperienced person is sitting on the bench. After all, it would not matter if the people appearing before the court were doing so every other week because, on the swings-and-roundabouts principle, while they were having a fair shot of the permanent sheriff they would only occasionally get the temporary man. But most people appear before the sheriff court perhaps only once in a lifetime. There are exceptions—there are those who appear very frequently—but I am thinking of the ordinary citizen whose business takes him to the court perhaps only once.

I accept the point the noble Baroness makes, that to set too high a standard might in fact at a particular time create difficulty in finding a suitable person to occupy the bench, and there might well be a greater hardship if the court could not function because a suitable person could not be found. May I therefore have from the noble Baroness the assurance that it would be the normal practice, now that this change has taken place and that the higher standard of ten years is set for a permanent sheriff, that the authorities—whoever is responsible for finding the temporary sheriff—would try to get a man with as many years of experience as possible; and that a man with only five or six years' experience would not be asked to sit if it were possible for those responsible to lay their hands on a man with nine or ten years' experience? This would seem to be the reasonable way of dealing with the matter, and if the noble Baroness can assure me that that would be the normal way of proceeding, then I would be content.

7.17 p.m.

LORD WHEATLEY

Before the noble Baroness replies, may I make certain observations on the speech of the noble Lord, Lord Hughes. In logic there is a great deal to commend the argument advanced by the noble Lord. There may, however, be some practical problems, because if a person is appointed as a temporary sheriff, then in terms of subsection (5) of Clause 11 he may be required by the Secretary of State to give up his legal practice. That is in effect the purpose of subsection (5). If he is an advocate it means giving up his practice at the Bar for a period of several months. If he is a solicitor it means severing his connection with his legal practice for several months. In that situation it might be difficult, or more difficult, to obtain people in the ten-year bracket and above, than people in the five-to-ten-year bracket. That is merely a practical difficulty.

Taking up the point which the noble Lord, Lord Hughes, raised in his second speech on this question, a proposition has been canvassed—and I should like the noble Baroness in her reply to say whether or not she has any knowledge of it—that, in addition to appointing sheriffs to occupy the various sheriff courts throughout Scotland, there should also be appointed a pool of sheriffs who would act in a floating capacity and act as temporary sheriffs where that was required. These people would be appointed with the full status of sheriff. They would be required to have the full qualification—namely, the ten-year qualification—and they would be paid the appropriate salary for that grade of sheriff. There are twin advantages in such a proposal. In the first place, it would secure that there was readily available a pool of sheriffs who could act when necessary, without the difficulty of finding someone with the requisite qualification prepared to give up his practice for a short period at the possible risk of damaging his practice considerably. Secondly, such a proposal would have the advantage of giving these temporary sheriffs with the full status the opportunity of learning the job.

If that was going to be the policy, I think much of the objection contained in the noble Lord's speech would disappear. One would have to recognise that some reserve power, such as is contained in the clauses referred to, might have to be there against a possibility of an exceptional circumstance arising when the pool of reserve sheriffs—if that system were adopted—was not sufficient to meet a particular contingency. But I should like to hear what the noble Baroness has to say in that regard.

BARONESS TWEEDSMUIR OF BELHELVIE

I should like to thank both the noble and learned Lord, Lord Wheatley, who is giving of his legal experience on this Bill to-day, and the noble Lord, Lord Hughes, who asked for an assurance that, as far as possible, the temporary appointments would come from people who had nearer the ten years' experience than the five years'. I think I can give him that assurance. Perhaps I should also point out that this particular provision in the Bill, which raises the qualifications, in fact goes against the recommendation of the Grant Committee, who felt that the period of qualification should remain as it is for the practical reason that it might be difficult to get enough qualified candidates to fill all the posts. But my right honourable friend the Lord Advocate, who of course is in very close touch with the legal profession all the time, felt it was right to raise the qualification for the permanent sheriff principals and the sheriffs; but he has kept the original qualifications—if I may put it that way—for the temporary appointments and I think I should draw attention to the fact that the Grant Committee pointed out that no one with the minimum qualifications had been appointed in the recent past, and that anyone appointed from the Bar to be a sheriff principal was likely to have been in practice for 15 or 20 years or more.

In answer to the noble and learned Lord, Lord Wheatley, as to whether it is the intention to introduce (as I think he called it) a "pool of floating sheriffs"—which I thought was a very nice metaphor—it is the intention to introduce such a pool. Whether it will be called by that exact name, I do not know; but anyone who is acting in the post of temporary sheriff of course receives the same salary as a full sheriff unless he is there—if I may so put it—purely on a casual basis, in which case he would be given a salary for a day. It has been thought that by the use of these temporary appointments it is possible to provide experience for those who we hope will become sheriffs one day.

With these assurances to both noble Lords, I hope they will feel satisfied on these counts.

LORD HUGHES

I should like to say at once that I am completely satisfied with what the noble Baroness has said; not only with the assurance for which I asked but even more so with the information she has given to my noble and learned friend, Lord Wheatley, about the pool of sheriffs, because I think this is an even more satisfactory way of dealing with the situation than the other one. I am most grateful.

Clause 5 agreed to.

Clauses 6 to 16 agreed to.

7.24 p.m.

Clause 17 [Sheriff principal may fix sittings and business of sheriff courts in sheriffdom, and sessions for civil business]:

On Question, Whether Clause 17 shall stand part of the Bill?

LORD HUGHES

In this clause the sheriff principal is given the duty of fixing the sittings and the business of the sheriff courts. I have been informed, as no doubt has the noble Baroness, that it has happened on occasion that a sheriff court has sat during a local annual holiday—for instance, the Glasgow Fair—when there may be considerable difficulty in getting witnesses, and the difficulties of having a fair hearing are very great. It has been suggested and I would commend it to the Committee, not to go into the Bill but as a purely administrative matter—that sheriffs should be asked that in the ordinary course of events they should endeavour so to arrange the vacations that the court is not sitting during a period of the local summer holiday, which now extends to a fortnight and for many people is perhaps three weeks or more. If sheriffs principal make it their business to do this I think it will be easier for everyone concerned to get a satisfactory result from the proceedings in the court.

BARONESS TWEEDSMUIR OF BELHELVIE

I am glad that the noble Lord, Lord Hughes, has raised this point because it gives an opportunity to place his views and mine upon the record. I understand that as far as the Glasgow court is concerned the sheriff principal has in fact fixed the holidays so as to coincide with the local holidays in July and August. As all of us who travel about Scotland know, these holidays change in different parts of the country, and I hope this short debate will make it clear that it would be a great convenience to the public if the sheriff principals concerned and the sheriffs would indeed fix their own periods of vacation so as to coincide as far as possible with local holidays. I thank the noble Lord for raising the matter.

Clause 17 agreed to.

Clauses 18 to 23 agreed to.

7.27 p.m.

Clause 24 [Provision and maintenance of court houses by Secretary of State]:

On Question, Whether Clause 24 shall stand part of the Bill?

THE EARL OF SELKIRK

We are dealing with a part of the Bill which brings the sheriff courts under the central Government, and in Clause 24 very precise statutory obligations are laid on the Secretary of State about maintenance of the sheriff courts. I would have very little doubt as to whom that referred to (although I accept that Secretaries of State are somewhat volatile in Acts of Parliament) if it were not for subsection (7) of Clause 23. In that it says this: In this section references to the Secretary of State are references to the Secretary of State for the Environment. Had it not been for that I would have assumed that the obligations under Clause 24 would have fallen to what we used to call the Ministry of Public Building and Works; but I do not understand why it is in Clause 23 without any reference to Clause 24 if it is intended that these duties should be fulfilled by the Secretary of State for the Environment. I think this is important.

The Grant Committee referred to the condition of sheriff courts, which it said was very unsatisfactory, and this Bill does not state simply that sheriff courts should be properly appointed. It does not leave anything vague. It lays down most precise statutory obligations. If any sheriff finds his court dirty then some Secretary of State is guilty of a statutory offence; if any sheriff is cold or his court is badly lighted then some Secretary of State is guilty of a statutory offence. All I am asking is: who is that Secretary of State and to whom should the sheriffs complain if they are not satisfied with the state of their courts?

BARONESS TWEEDSMUIR OF BELHELVIE

I think the noble Earl has assumed that in practice the Secretary of State who would be responsible for the provision and maintenance of courthouses under Clause 24 would in fact be the Secretary of State for the Environment, but he questioned why it was that the Secretary of State for the Environment was referred to particularly in the previous clause, Clause 23. If I may say so, I think the noble Earl half knew the answer because he said that he understood that Secretaries of State were very volatile. He would therefore know that it is not customary to identify the particular Secretary of State when conferring general powers or functions, because the expression "Secretary of State" means one of Her Majesty's Principal Secretaries of State; but if one refers to Clause 23—which, although we have passed it, we could perhaps refer to in passing in connection with Clause 24—in Scotland title to property can be transferred only through an identifiable person or body. That is why in Clause 23, which deals with the transfer of courthouses, the Secretary of State for the Environment has to be mentioned specifically.

Of course, when this Bill was first drafted the Ministers were quite clearly identifiable, because there was the Secretary of State for Scotland and the Minister of Public Building and Works; then, with the advent of the new Government, we had another Secretary of State. Therefore Clause 23, because it transfers property and has to transfer it to a particular person, mentions the Secretary of State for the Environment; but later in this Part of the Bill, which includes Clause 24, it merely mentions the Secretary of State as being one of Her Majesty's Principal Secretaries of State.

THE EARL OF SELKIRK

I thank my noble friend.

Clause 24 agreed to.

Clauses 25 to 30 agreed to.

7.32 p.m.

THE DUKE OF ATHOLL moved Amendment No. 1:

After Clause 30, insert the following new clause:—

Extension of jurisdiction of sheriffs principal and sheriffs to undefended matrimonial causes

" .Sheriffs principal and sheriffs may hear and determine any undefended matrimonial cause."

The noble Duke said: I beg to move Amendment No. 1 on behalf of my noble friend Lord Cromartie, who apologises for his inability to be in his place to-day, due to a most important meeting of his county council. My noble friend stated the case for this Amendment very forcefully on the Second Reading of the Bill, and I will not repeat his arguments here. They can be summed up in two words, convenience and expense. It is both more convenient and less expensive to have these cases tried in local sheriff and sheriff substitute courts, and saves the taxpayer money in legal aid. Witnesses, who tend to be local, and the plaintiff do not have to travel to Edinburgh for a hearing which lasts usually just over ten minutes. In England they have a far more radical system; county courts can hear defended as well as undefended divorce cases, and in this Amendment we are only asking for sheriff courts to hear undefended cases.

I do not, as your Lordships are no doubt aware, necessarily recommend everything English, but in this case I feel that they are looking more to convenience South of the Border than we are in Scotland. If this Amendment were accepted, it would mean a little more work in the sheriff courts, but presumably there will be an equivalent saving in the Court of Session, and more sheriffs will probably be needed anyway. As we have just heard from my noble friend the Minister, there is this idea that a pool, in the words of the noble Lord, Lord Wheatley, should be appointed, and they could presumably help out where needed.

My noble friend Lord Balerno on Second Reading gave two reasons why he did not much like this proposal. One was the question of uniformity in the administration of the divorce laws, but this does not seem to be a problem in England. And the sheriff courts do distribute property in other sorts of cases. The second reason that the noble Lord, Lord Balerno, gave for not much liking this idea was that it made the divorce slightly more difficult because people had to travel to Edinburgh. I think this is almost exactly counterbalanced by the fact that by having all cases in Edinburgh there tends to be greater anonymity. I feel that many people would rather travel to Edinburgh and avoid the very small amount of publicity—and it is a very small amount of publicity, because you are not allowed to report divorce cases in Scotland, other than the result—rather than have the case heard locally. For these reasons, I hope that my noble friend the Minister will consider this Amendment. I beg to move.

LORD WHEATLEY

In rising to speak to this Amendment I find myself in a difficulty as to whether or not I ought to declare an interest. If this Amendment were carried, it would mean that there would be less work for the judges of the Court of Session, with presumably no diminution of their salaries. Accordingly, if I were to support this Amendment, I would obviously have to declare an interest. But as I am going to oppose the Amendment, it becomes rather an academic point.

There are, of course, various approaches to this question, and many of them are rather narrow and, may I say, rather syndicalistic. I rather think we could approach this on the broad view, balancing the advantages and disadvantages of the proposal, because there are advantages on the one side and disadvantages on the other, and it would be quite wrong to think that this was a simple matter of black and white. It would be competent to introduce this within the Bill because Part III deals with the extension of the civil jurisdiction of the sheriff courts. The question is not whether it is competent but whether it is desirable. It may be that another form of Bill would be more appropriate, but I think we ought to consider whether in any event it is desirable, whether in this Bill or in another.

By way of preamble, may I point out that the Grant Committee, after full consideration of all the evidence and representations made to them on this subject, recommended unanimously that the undefended divorces should remain in the Court of Session. And they had before them a very full cross-secton of opinion; not the narrow views which are often put up to Members of both Houses of Parliament by interested parties, but a very full cross-section of views. The majority of the representations made to the Grant Committee were in favour of retaining the undefended divorces in the Court of Session. The fact that they were unanimous, of course, is not conclusive, nor is it decisive; one has known of occasions where unanimous views of a departmental committee, or indeed a Royal Commission, have not necessarily been accepted. But I am happy to say that often they are. While it is not decisive at least it is relevant and may very well be persuasive.

May I just deal with the two points the noble Duke made, because I think they summarise the advantages which are claimed on behalf of this proposal. The first one is that of convenience. This argument subsumes that all the litigants and all the witnesses will be living in the area of the sheriff court where the case is being heard. This, of course, is just not so. When I come to examine the vexed problem of jurisdiction (which the noble Duke, and those, I presume, briefing him, have thought fit not to mention, for obvious reasons) assuming that the basis of jurisdiction was, as it might well have to be, the residence of the defender, that, of course, might well be at the other end of Scotland from the residence of the pursuer and his or her witnesses. Therefore, this question of convenience for litigants and witnesses is not really a very strong one, because the centralisation of divorces in Edinburgh, whatever you may say about it, makes it more central for people from different parts of Scotland.

Unfortunately, most of the witnesses and most of the litigants come from the central belt where there is a large area of population, and therefore the degree of inconvenience, although I do not disguise the fact that there is inconvenience in some cases, is perhaps not so large as the proponents of this suggestion would have us believe.

Let us turn to the question of expense. Most divorce cases, particularly the undefended divorce cases, are legally aided at present. May I point out that in cases where legal aid is provided, there may or may not have to be a contribution according to the means of the parties. If there is no contribution it does not make any difference to the litigant whether the case is in the Court of Session or the sheriff court so far as his expense is concerned. If the litigant is making a contribution, in many cases it is liable to be of such a nature that it would be required for the sheriff court as well as for the Court of Session, so the amount of contribution in most cases would not be affected. The people affected would be the non-legally-aided litigants. If they had a more convenient forum where expenses were less than in the Court of Session, they would be the beneficiaries, but it might be said that the public funds would be the great beneficiaries because there would be a great saving in fees paid to the profession if the case were heard in the sheriff court. That is undoubtedly so, but I do not think the actions would be as expensive generally in the sheriff court as in the Court of Session.

As against that, we have to recognise that if undefended divorce actions are taken to the sheriff court one would require to have many more sheriffs, additional staff, greater administration and more accommodation. All that would cost money. I do not think anyone could predict whether or not the amount of money that this would involve would counterbalance the saving in legal aid expenses coming out of the legal aid fund, but I do not think it would be such a great saving as the supporters of this Amendment would have us believe.

On the other side of the coin, there are formidable difficulties. I would not pretend that they are insurmountable. Parliament can surmount any difficulties provided (a) it has the will; and (b) the Treasury is prepared to give the finance. What are the arguments? I think they are based, first, on principle and, secondly, on practical considerations. Our law in Scotland, both civil and criminal, has always recognised that there are certain forms of actions or proceedings which are appropriate to our highest court. One such class of action has always been an action involving status. An action for divorce involves status and what goes with it and what flows from it. Accordingly, such an action has always been regarded as one of the types of action that should be reserved because of its nature to the highest court; namely, the Court of Session.

Incidentally, this is recognised by the mover and sponsor of this Amendment because in defended divorce cases they accept that the nature of the case is such as to justify it being heard in the Court of Session. The other argument which is advanced is that these undefended actions can go through a legal "sausage machine" in 10 minutes in the Court of Session. May I suggest that the test as to which court is the appropriate court for an action is not how long a particular action may take, but what is involved in the action, and what is involved here is the question of status and all that flows from it. Therefore I think this 10-minute argument does not really hold water, because what the Amendment seeks to do is to turn this 10-minute divorce act in the Court of Session into a 10-minute divorce act in the sheriff court. I cannot see that that has any relevance at all.

On the question of the status of the action, I should like to think that marriage is still regarded as the basis of our society. Heretofore the dissolution of marriage has been regarded as so important as to be reserved for a higher court. I think we must ask ourselves the question. Has marriage become so debased that it no longer merits that status and that consideration? If, as one academic lawyer said, divorce has become a 10-minutes degrading act in the Court of Session, may I say that that is not the fault of the Court of Session? With all due respect, in my opinion that is the fault of Parliament in its liberalisation of the divorce laws according to some points of view and the emasculation of them from other points of view.

Therefore, I suggest to your Lordships that the proper place for the contract of marriage to be dissolved is and always has been, in an undefended action, in our highest court, the Court of Session. I agree that most of the actions which are undefended go through in a short time and have little difficulty, but there are sometimes difficulties which arise which make such actions appropriate to the Court of Session. There are—and I know this from my own experience, although nowadays I am not normally involved in this kind of action sitting as I do normally in the Appeal Court—difficult questions of jurisdiction which can arise in an undefended action. Difficult questions of the recognition of foreign decrees of divorce in an undefended action—and more often than not these points are raised not by the parties nor by counsel but by the judge himself—sometimes take a great deal of sorting out and solving, as I know from personal recent experience.

There is another aspect: the preservation of our standard of law and the proper development of our law which are important factors in any legal system. The development in the law of divorce, which has been substantially altered by successive Statutes since 1938, makes it desirable to obtain, not a standard of complete uniformity because in human society that is quite impossible to attain, but as high a standard of uniformity both in the interpretation of the law and in the development of a changing law which is constantly being changed by Statute to move that standard as high as possible. I suggest that that exercise is best achieved in the collegiate of the Court of Justice, which is the Court of Session, rather than in the scattered sheriffdoms throughout the length and breadth of Scotland.

May I point out that most undefended actions result in a decree of divorce being granted, and therefore there is no appeal in such actions. The only pos sibility of an appeal in an undefended action is that the decree is refused and the dissatisfied pursuer—may I point out that that is the term, not "plaintiff"—then can take an appeal. In the result, many points of law may go through on a wrong basis of law because a decree of divorce has been granted in the sheriff court. But in the collegiate of the Court of Justice it is easier to get, both at the Bar and Bench, nearer to a standard of interpretation, of development and practice than otherwise in this branch, which I concede to be an important branch of our law.

I must apologise for detaining your Lordships, but I think it important for Scotland and the people of Scotland and I do not make any apology for speaking on this matter for so long. Let us look at the practical points. I do not know whether the noble Lord who moved the Amendment or those who briefed him knew what the condition would be. Is it still to be a condition precedent or a sine qua non in any form of jurisdiction that the person has a Scottish domicile derived from the husband? If that is so, are we to have a further qualification for the sheriff's court, because a Scottish domicile would not be the basis of jurisdiction for an individual sheriff court albeit that it is the basis of jurisdiction for the Court of Session. So we are required either to superimpose on domicile another basis of jurisdiction or to supersede domicile by another basis of jurisdiction.

It is no use saying, as was said during an earlier debate on this Bill, that you can have resort to the existing bases of jurisdiction in the Sheriff Court Act that we have at the present time, because many of these jurisdictions are completely inappropriate for an action of divorce. Therefore, if one assumes, if this Amendment were to succeed, that the type of jurisdiction that would be invoked, either in supplement to or in substitution for domicile, was residence—then whose residence? Is it going to be the residence of the defender or the pursuer, of the husband or the wife? As I pointed out earlier, once you have that situation you are going to get into difficulties of convenience, because the residence constituting jurisdiction may make it very difficult indeed for the witnesses to travel from other parts of Scotland or indeed from England. May I say that with the more limited qualification required to constitute residence as distinct from domicile, some of the husbands who are very difficult to catch at the present time will be much more difficult to catch, because they can just hop about from place to place and defeat the whole purpose and intent of a residential qualification.

I will just deal with another two points. The volume of work in many sheriff courts, though not in all, is such that the superimposition of a flood of extra work which this Amendment would involve, particularly in the Central Belt, would mean chaos in the courts as they are at present. We should need to build new courts and staff them with more sheriffs. The pool to which the noble Lord referred would not meet that situation because it is designed to meet the present situation and not a new one. There would have to be new staff, a new administration, and so on. And at the same time the work of the sheriff court, particularly in the Central Belt where most of these divorces have come from, is such that the growth in the cases of crime is shoving the civil work further and further hack. Therefore, from the point of view of convenience of the public and the getting of speedier divorces, this would not expedite but retard matters. The argument of England will not hold water, because there is this marked distinction to begin with. The county court judges who started as commissioners in England before the new dispensation was introduced do no criminal work, and that distinguishes them very materially, from the point of view of the volume of work, from the Scottish sheriffs. In any event, when that change was made it was because the High Court of England was so overworked that they had to find some easement for it in passing this work on to the county courts. That does not apply in Scotland.

So far as anonymity is concerned, I do not want to deal with it in detail. I do not think it is so much the anonymity as the obscurity of the Court of Session that might have some attraction for people. I think it is the weakest part of the argument and I shall not deploy it. But for the reasons I have put forward, I would ask your Lordships to reject this Amendment on its merits.

7.53 p.m.

LORD HOY

Although my name is attached to this Amendment, it was not my intention to take part in the debate, but here I am in a personal capacity. The noble Duke, the Duke of Atholl, who moved it might like one word in support of it. When this Amendment was put down what we were aiming to do was not to belittle marriage. We do not underestimate the value of marriage. We regard it as the foundation not only of a good family life but of the State itself; so in that respect we do not value it less than those who are opposing the Amendment. I feel I should make that perfectly clear. What we were seeking to do was to meet the needs not only of the law but of the people who would be involved in divorce. While it may be true to say that all the people who are involved in a sheriff court action of this kind would not be living within the area of the sheriffdom, we are absolutely certain that all who are involved in the Court of Session at the present time do not live within the area of Edinburgh. Therefore what we were seeking to do in this Amendment was to meet the needs of the people in those undefended actions.

I am a little appalled to hear that if this work were transferred from the Court of Session to the sheriff court we should have to erect new sheriff courts all over the place. Perhaps the noble Baroness, when she comes to reply, will tell us just what is involved. I am certain we shall all be grateful for the facts. But even if extra sheriffs were needed, I can remember being involved in certain arguments that we should increase the number of judges in the Court of Session because of the work they had to do. It may well be that as we were able to sort out and rearrange the work, so we could meet these cases. We were trying to get advantages and to bring in an Amendment which would in a humane way meet the needs of the people in this case. Certainly we were never arguing that we were going to save money for the litigants in these proceedings. What we were prepared to argue was that we might be relieving the Exchequer of a considerable sum of money, because if these people are legally aided, then all the travelling which is involved has to be paid for by the Exchequer. We thought—we may have been quite ignorant over this—that this was a needless expenditure. Therefore two things were involved, time and expenditure, which we thought might be saved.

Now we are also told that perhaps this is not the Bill to which this Amendment ought to be made. That may well be so, and I am certain that if it is so the noble Duke, the Duke of Atholl, will be prepared to withdraw his Amendment. But surely it is not asking too much, when changes are being made, that we at least should be permitted to put down an Amendment and debate it, always on the understanding that whether we are for or against it there is no difference of opinion in Scotland about the value of marriage.

LORD HUGHES

I shall not detain the Committee for very long. I said when I spoke on Clause 5 that I did not want to find myself involved in these legal arguments, and I knew that I was right after listening to the noble and learned Lord, Lord Wheatley, on this matter. I do not propose to involve myself any more than to say that my inclination is to disagree with the noble and learned Lord. I think there is something to be said for having at least some undefended cases before the sheriff court. But my sole reason for intervening is this. Yesterday, on another Bill fairly late in the evening, we had a Division on a question of a double drawing of money where a person was under notice of redundancy and went sick under industrial injury benefit. The view which I held then, although I did not express it in the debate, was that while that might or might not be a right thing to do, the Industrial Relations Bill was not the place in which it ought to be discussed. I believe that there is a Social Security Bill before another place at the moment into which it might properly be fitted. My reason for not wishing to support this Amendment is not because I disagree with certain undefended divorce cases being heard before the sheriff court, but that if that issue is to be discussed it should be done during a discussion of divorce and not during a discussion of the functions of the sheriff court. I therefore would not support this Amendment because I think it ought to be made to another Bill altogether and not to this one.

8.0 p.m.

BARONESS TWEEDSMUIR OF BELHELVIE

We must all be glad that so many Lords have taken part in what has been a fascinating debate. I thank my noble friend the Duke of Atholl for having raised this question, which is of great interest to us all. He will not be surprised if I recommend to the Committee that we do not accept this Amendment, and I hope he will withdraw it.

This question was raised on Second Reading, and I gave reasons why I felt that the recommendations of the Grant Committee should be followed; in other words, that there should be no change and that undefended divorce cases should not be heard in the sheriff court, but should continue to be heard by the highest court in Scotland. I have no intention of trying to repeat the many excellent arguments put to this Committee by the noble and learned Lord, Lord Wheatley. He has covered every possible point and, in particular, was of great interest on the matter of jurisdiction. Therefore I am glad that he took that view. It also shows that there are genuine and differing views on this subject; but at this moment I would say to the two noble Lords on the Benches opposite that naturally I appreciate (and I say this especially to the noble Lord, Lord Hoy) that everyone in this Committee—whether for or against this Amendment—believes that marriage is one of the great foundations of our society. I should like to support the noble Lord, Lord Hughes, in saying that, in any case, this is not the right Bill in which to discuss the jurisdiction of the divorce court.

I would remind the Committee (this is a point which has not been brought up) that the Grant Committee suggested that their recommendations should come forward in two parts. First, the legislation with which we are dealing now, concerning the machinery for administering the sheriff courts; then other legislation which properly could contain any recommendations put forward in the Grant Committee regarding jurisdiction. Therefore I would say to my noble friend the Duke of Atholl that when we have other legislation dealing with jurisdiction, if he still feels inclined to pursue the matter, that will be the moment in which to put down his Amendment. I hope that on this occasion he will withdraw it.

THE DUKE OF ATHOLL

I should like to thank all noble Lords who have taken part in this short debate, particularly the noble Lord, Lord Hoy, for supporting the Amendment and the noble Lord, Lord Hughes, for his qualified support. I should also like to assure the noble and learned Lord, Lord Wheatley, that I would never have thought that he had an interest in the Parliamentary sense in this particular matter, although I realise that he has a far more general interest in it, and a very deep one. I bow to his words of wisdom and apologise to him for calling a "pursuer" a "plaintiff". On the Second Reading the "pursuer" was also called the "plaintiff".

In the light of the disagreement to this Amendment not only from the legal forces on the Cross Benches, but also from the Leader of the Opposition so far as Scottish matters are concerned, and the Government—I am sure you will agree a formidable combination—I have little alternative but to withdraw this Amendment. I must reserve the right of my noble friend, Lord Cromartie, possibly to return to it at a subsequent stage, although I feel that when he reads what the Minister said in her closing sentences he will not consider it necessary to do so.

Amendment, by leave, withdrawn.

Clauses 31 to 35 agreed to.

8.5 p.m.

Clause 36 [Procedure in summary cases]:

BARONESS TWEEDSMUIR OF BELHELVIE moved Amendment No. 2: Page 22, line 39, leave out (" of counsel ") and insert (" an advocate ").

The noble Baroness said: This is a drafting Amendment. The purpose of subsection (1) of this clause is to enable the Court of Session to make rules permitting a party to a summary cause in the sheriff's court to be represented in certain circumstances by someone other than a lawyer. The expression "counsel" was intended to show a person who is a member of the Bar, but it has been suggested to us that it is an expression which is more commonly used in England. That being so, we feel it will be more suitable in a Scottish Bill to use the more familiar words "an advocate" to describe a member of the Scottish Bar. I therefore beg to move.

LORD HOY

On this side of the House we want to support this important Amendment. We cannot understand why the noble Baroness took so long to see a mistake which had been made by the draftsmen. We are grateful that it has been picked up by her Department and corrected.

LORD HUGHES

It will be of satisfaction to the noble Duke, the Duke of Atholl, to know that he is not the only one who falls into the error of using English terms.

On Question, Amendment agreed to.

On Question, Whether Clause 36, as amended, shall stand part of the Bill?

LORD WHEATLEY

As one of the persons who may be involved in passing the Acts of Sederunt under this clause, may I ask the noble Baroness why it is that this exception to the normal rule has been introduced in relation to summary actions, having regard to the wide range of actions covered by what is called in the Bill a "summary cause"?, It might be an advantage if those of us who have to formulate the Acts of Sederunt knew what was at the back of the mind of the Government when making this proposal.

BARONESS TWEEDSMUIR OF BELHELVIE

I am sure that the noble and learned Lord will remember that Clauses 35 and 36 assimilate the small debt and summary procedure, and substitute a new summary procedure, applying to actions for amounts below £250.

Clause 36, as amended, agreed to.

Clause 37 [Remits]:

BARONESS TWEEDSMUIR OF BELHELVIE moved Amendment No. 3: Page 23, line 29, at end insert ("(4) In this section 'sheriff' includes a sheriff principal.")

The noble Baroness said: This also is a drafting Amendment, but I should explain it because in its present form Clause 37 enables the sheriff, in certain circumstances, to remit ordinary causes for summary role and vice versa. As the Bill stands, if exceptional cases arose (for instance if the sheriff were ill) which required the sheriff principal to step in and hear the case at first instance, he would have no power to remit the action, if he wished to do so, from the summary role to the ordinary role, or vice versa, because the power conferred by Clause 37 is conferred only on the sheriff. This is why the clause is defective and the Amendment seeks to remedy this defect by providing that the expression "sheriff" should be construed for the purpose of this clause as including sheriff principal. I beg to move.

LORD HUGHES

I agree with this Amendment. The noble Baroness rather simplified it by saying this is a drafting Amendment. I think it corrects a rather serious error in the clause.

On Question, Amendment agreed to.

Clause 37, as amended, agreed to.

Remaining clauses agreed to.

Schedules agreed to.

House resumed: Bill reported, with the Amendments.