HL Deb 22 June 1971 vol 320 cc833-46

5.15 p.m.


My Lords, this Bill concerns the constitution, organisation and administration of the sheriff court in Scotland, the provision of its buildings and offices, and its civil jurisdiction, procedure and appeals. The Bill is designed to improve the efficiency of the organisation and administration of the sheriff courts, and to provide the flexibility to meet modern conditions and changing circumstances. The Bill stems from the Report of the Committee on the Sheriff Court, which was chaired by the Lord Justice Clerk and is normally referred to as the Grant Committee. It was appointed in 1963 by the then Secretary of State for Scotland. The Report was submitted in 1967 when it was presented to Parliament and published.

The Committee made an exhaustive examination of the constitution and jurisdiction of the sheriff court, the number and distribution of courts, and the present organisation, practice and procedure. They made a very large number of recommendations, most of which require legislation, and they suggested that these might be undertaken in two stages—the first Bill dealing with the machinery through which the comprehensive planning of court business could be undertaken, and the second with business which would be concerned with certain jurisdiction and appeals and the constitution of the courts apart from the matters which are covered in the primary legislation which is before us now.

This first stage legislation therefore confers upon the Secretary of State responsibility for deciding the boundaries of sheriffdoms and sheriff courts districts, and also the responsibility for providing and maintaining sheriff court-houses and the general direction, at central level, of the work of the courts.

My Lords, the Bill is lengthy. I do not intend to detain your Lordships with every clause, but I feel I must make a rather longer speech than I would normally because it is an important piece of legislation. The Bill also confers upon the sheriff principal statutory power to govern the courts in his sheriffdom and to give instructions to sheriffs substitute it would provide for a reconstituted Sheriff Court Rules Council, with the necessary powers to draft revised Rules of Court, and it also provides for the division of civil proceedings into ordinary and summary proceedings. All of these provisions are in this Bill and are recommendations of the Grant Committee.

There are two very important principles that underlie this Bill. The first concerns the constitutional importance of this measure because of the interdependence of Parliament and the Judiciary. Parliament is of course the supreme legislative authority, but when the judges interpret and apply the law they must be able to do so within a well organised and efficient court system. The second principle is that the Executive must not encroach upon the independence of the Judiciary. A Judiciary that is independent of the Executive is one of the most important distinguishing features of our system of justice in this country. Therefore, where the Bill gives certain powers of directions to the Secretary of State, these are for the purposes of administration, and in no way interfere with sheriff court judges in the exercise of their judicial functions.

Part I of the Bill, and Clause 1 in particular, provides that the Secretary of State shall he responsible for the organisation and administration of the sheriff courts. This is one of the main recommendations of the Grant Committee. They felt that a clearly defined central authority should undertake the designation of sheriffdoms, and sheriff court districts, the appointment of additional sheriffs principal, sheriffs and court staffs, the deployment of judges and staff across sheriffdom boundaries and the exercise of final disciplinary powers. They recommended by a majority that the central authority should be the Secretary of State. in consultation with the Lord Advocate as necessary, and that his existing power should be extended for this purpose.

Clauses 2 and 3 carry out the Grant Committee recommendation that the Secretary of State should have powers at any time to alter the boundaries of sheriffdoms. Also that, in addition to the powers of direction over the courts which he now possesses under the Sheriff Courts (Scotland) Act of 1907 there should be added powers to designate sheriff court districts. The Secretary of State's existing powers in relation to alteration of sheriffdoms are severely limited, and as regards sheriff court districts are vague.

Part I of the Bill deals also with matters affecting the conditions of appointment of sheriffs principal and sheriffs, including the titles of these offices, the qualification for appointment, the disqualification attaching to both offices and the machinery for removal from office. A clear duty has been laid upon the Secretary of State to secure the efficient organisation and administration of the sheriff courts, and it follows that he must be given powers and functions with which to undertake this task. These include the power to give directions to sheriffs to act in another sheriffdom in order to avoid delays in the administration of justice. The Bill also provides that the Secretary of State may deal with the emergencies by the appointment of temporary sheriffs principal and sheriffs either to fill vacancies until a permanent appointment can be made or. in the case of sheriffs, to add to the shrieval strength to clear a backlog of cases. The existing powers in this respect arc scattered through several Acts dating from 1907 to 1948 and are Out of keeping with modern conditions.

The Secretary of State has also been given the power to transfer a sheriff on a permanent basis from one sheriffdom to another. He already has the power to prescribe the number of sheriffs, say where they shall live, and at which courts they will attend for the performance of their duties; but it has been necessary, where a sheriff has agreed to move to another sheriffdom, to treat this as a fresh appointment. The new provision is essential if the organisation of the courts is to be flexible. The clause to which I refer is Clause 14(4), and I should like to draw to the attention of the House the fact that the powers in this subsection may be exercised only for the purpose of securing the efficient organisation and administration of the sheriff courts, and after consultation with the Lord President of the Court of Session. The clear proviso as to the use of this power. with the added safeguard of consultation with the head of the Judiciary is intended to remove any possibility that it might be used to interfere with the sheriffs in the exercise of their judicial function.

The present statutory functions of the sheriff principal in relation to the organisation of the sheriff court are very limited and relate only to the granting of leave of absence to a sheriff, appointing persons to the office of honorary sheriff and the holding of courts. Although it has generally been accepted that, at common law, the sheriff principal is the head of his courts, a number of sheriffs principal have been unsure of their powers and have therefore hesitated to give directions to sheriffs. The Grant Committee considered that the sheriff principal ought to be the authority at local level in charge of the courts, and entitled to give directions to sheriffs and court staffs. The Committee recommended that he should have power to prescribe, within the sheriffdom, the number of courts which sheriffs were to hold, their times and places, and the business to be taken; that he should be entitled to fix the vacations, to say when sheriffs would be on leave and, in general, to give such directions as might be necessary for the prompt and efficient discharge of business within the sheriffdom. The Grant Committee thought that these powers ought to be specifically conferred on the sheriff principal by statute. All of these recommendations have been accepted and, subject to the authority of the Secretary of State, the necessary powers and functions have been included in the Bill.

Part II of the Bill carries out the recommendations of the Grant Committee concerning sheriff court houses. The Bill provides for the transfer of court houses, and the responsibility for their provision and maintenance from local authorities and court house commissioners to the central Government. All sheriff court houses, together with the relevant rights, liabilities and obligations attaching to them will be transferred to the Secretary of State for the Environment. Care has been taken to provide for the apportionment of interests where, as in many parts of Scotland, court houses form part of jointly occupied buildings. In some parts of Scotland, particularly in the central belt, court house accommodation is already dangerously limited. Some new court houses are being planned, and others will have to be extended; but this will take time. In order to avoid delays in the administration of justice it has been felt necessary to provide for the use, as court houses, of buildings belonging to local or other public authorities. Court sittings will be adjusted, so as not to interfere with the normal use of the buildings, and any necessary charges for cleaning, lighting and heating will be met. I am certain that this provision will be welcomed by both local and public authorities.

I am sure the House would wish me to say something about Clause 27, because it enables the Secretary of State to make regulations for the payment of compensation to any person who suffers loss of employment, or loss or diminution of emoluments, as a result of the transfer of responsibility for court houses. The staff who will be covered by this provision are those presently employed by local authorities and court house commissioners in connection with their functions under the Court Houses Acts mostly court house attendants, caretakers, cleaners, boiler attendants, and so on. Very few staff are likely to be affected. There are about 250 staff employed by local authorities and commissioners on court house duties, most of whom are part-time. Of these a large number are also employed by local authorities on work in connection with local authority courts or buildings. The existing court house staff will, wherever possible, either be offered broadly comparable posts in the Civil Service or, by agreement, be left with local authorities and commissioners.

Having outlined the main provisions of the Bill which are concerned with the administration of the sheriff court, I should now like to outline the remaining provisions which concern the court's civil jurisdiction and procedure. Sheriff court procedure has undergone little change since the Sheriff Courts (Scotland) Act 1907. The Grant Committee recommended that the Rules Council should be reconstituted, fully representative, and with authority to review practice and procedure in the courts and to prepare draft rules for submission to the Court of Session. Clauses 33 and 34 of the 13i11 give effect to the Committee's recommendations. Clause 32 gives the Court of Session wide powers to regulate sheriff court procedure by act of sederunt. This will enable the Court to repeal the rules contained in the Schedule to the 1907 Act, when these are superseded, in due course, by the new code of rules to be worked out in detail by the Rules Council; also to give immediate effect to any amendments which the Rules Council may recommend from time to time.

The Grant Committee left it to the new Rules Council to review sheriff court procedure in detail but they firmly recommended that, to streamline this procedure, the abolition of the present division of civil proceedings into small debt, summary and ordinary actions should come about. They found that over the years "summary" procedure had become almost indistinguishable from the procedure followed in ordinary actions. This added to the congestion of business in the courts and threw an unnecessary burden of trouble and expense on the litigants concerned. Clauses 35 and 36 of the Bill carry out the Grant Committee's recommendation that a summary procedure, closely resembling the present small debt procedure, should be applied to all actions for amounts not exceeding £250 in value, and Clause 31 gives the sheriff court privative or exclusive jurisdiction in such actions. Clause 37 provides for the contingency that an action for such a relatively small amount may raise issues of sufficient importance to justify transfer to the ordinary roll; and Clause 38 restricts the right of appeal in summary actions to points of law.

I need not, I think, consider in detail the remaining provisions contained in this Part of the Bill which no doubt we shall have an opportunity to do in Committee. As I have said, the Bill as a whole is designed both to relieve the courts of unnecessary work and to relieve litigants of unnecessary expense. I hope I have shown that it will improve the organisation and administration of the sheriff courts in Scotland, and I commend it to the House. I beg to move.

Moved, That the Bill be now read a. —(oness Tweedsmuir of Belhelvie.

5.27 p.m.


My Lords, when I first came to your Lordships' House (which now seems a very long time ago), and was charged with the responsibility of being Opposition spokesman on Scottish affairs. I found that this task landed on my plate a tremendous variety of subjects. One of the first Bills to come before the House after that was one in which I must confess I had little interest, on which I had absolutely no knowledge, and the then Minister of State, Scottish Office, was appalled when it came to the discussion to find that my name was not down on the list of speakers to take part in the debate. He rang me up and asked had I forgotten. I said, No, I had not forgotten, but that I did not know anything about it, and had no desire to get up and prove the fact. He said, I should be quite happy to get our people to write an excellent speech for you against the Bill." I declined his offer.

My Lords, the only comparison between that occasion and to-day is that once again the Bill under discussion concerns a subject on which I have little knowledge. I would not say that I have no interest in it, but I would emphasise that I have little knowledge, and in so far as ever appearing in the sheriff's court is concerned I certainly do not wish to acquire practical experience. But I must say that I find little in what the noble Baroness has said to make me feel that I ought to oppose this Bill in any way. In fact I would wish to congratulate her, both on the brief which she has received and on the way in which she delivered it. I can assure her that it was very much easier to follow this somewhat complicated business—and the way in which she put it over to us was very much simpler—than on a very recent occasion in your Lordships' House. At least, I cannot accuse the noble Baroness of keeping us in the dark at the end of her speech.

I looked up the proceedings on the Bill in another place, and I found that in Committee there was only one Division. Strangely enough, the Division was caused by a very particular friend of mine, the honourable Member for Dundee, West, but he failed so miserably that when it came to a vote he was the only person who voted for his own Amendment. In every other case the Amendments were either withdrawn or the Lord Advocate (who was in charge of much, if not all, of the proceedings) undertook to consider them. Some Amendments moved by my honourable friend the Member for Edinburgh' Leith were accepted, and at the Report stage the Lord Advocate carried out an undertaking which he had given at Committee stage to bring something forward as a result of Amendments which had been moved in Committee and then withdrawn. Therefore, the Bill, as it has come to your Lordships' House from another place, is very largely an agreed measure in which there is no element of political controversy at all. I therefore do not consider that it is necessary for me to prolong the proceedings at this stage in your Lordships' House.

I must confess, having seen that the noble and learned Lord, Lord Guest, is to follow me, that I am looking forward to hearing what he has to say about the Bill. If, in the course of his remarks, he should say anything to persuade me that I am being too complacent about the Bill at this stage, then I may take that into consideration at the next stage. However, all that I have read of the matter would seem to indicate that, in so far as the Government are implementing the Report of the Grant Committee, they are taking steps which meet, if not with the unanimous support of those concerned in Scotland, certainly with the support of the great majority of those people who are interested. On this occasion, therefore, I have no difficulty in saying that I agree with the noble Baroness.

5.33 p.m.


My Lords, I am very glad to join with my noble friend in welcoming this Bill, and in congratulating the noble Baroness and the Government on its introduction. The last comprehensive Act dealing with sheriff courts in Scotland was in 1907, and since that date there have been many changes: changes in social customs and social habits: changes in money values; and, above all, a great increase in crime. Therefore, the review of the sheriff courts system was overdue, and the Grant Committee's Report was welcomed in Scotland.

As the noble Baroness has said, the primary purpose of the Bill is to bring the administration and organisation of sheriff courts in Scotland under the Legis of the Secretary of State. He is given wide powers in the Bill for the reorganisation of the system, and these powers are safely protected by safeguards which will not impinge upon the independence of the Judiciary. I observe with pleasure that, under one clause, he is to be assisted in the administration of this system by a sheriff substitute, who will be specially appointed for that purpose but who will not cease to occupy and hold the position of sheriff. This will introduce a legal flavour into the administration, which I am sure the Secretary of State will welcome.

As the noble Baroness has said, under Part 11 there has been a transfer of the fabric of sheriff court buildings from, in the case of towns, the sheriff court commissioners, and, in the case of counties, from the county councils to the Secretary of State. This is a great advantage because, in some cases, the delay in litigation is caused more by the lack of accommodation than by the lack of judges. I am sure that the proposals in this Bill will lead to the speedy and more efficient administration of justice in Scotland.

I only desire to refer to two matters. One may sound comparatively minor, but I regard it as rather important that is, that the names of sheriffs are to be altered. Up to this time there has been what is known as a "sheriff" and a "sheriff substitute"; now there is to be a "sheriff principal" and a "sheriff". The history of sheriffs in Scotland is not without interest. Originally they had a heritable jurisdiction equivalent to sheriffs in England, and after that it became a hereditary appointment; the local Barons succeeding each other in office. When legal business increased the sheriff appointed a "sheriff depute" to deal with the legal business, and he, in his turn, finding that his duties as counsel in the Court of Session were too arduous, appointed a "sheriff substitute", and he was the permanent judge in the sheriff court in each district. Now, happily, the "sheriff substitute" is to become the "sheriff". I think sheriff substitutes rather resented being called a "substitute". They did 90 per cent. of the work in the sheriffdom, and they thought it was not fair that they should be characterised by the name of "substitute". Now that has been changed, and the sheriff (previously "sheriff depute") now becomes sheriff principal; and sheriff substitute becomes a sheriff. Therefore, the image of the sheriff, who does 90 per cent. of the criminal work in Scotland, is enhanced.

The other matter upon which I should like to touch is in regard to a point upon which I am glad to see the Government did not accept one recommendation of the Grant Committee, and that is in regard to the office of sheriff principal. The Grant Committee recommended that there should be five sheriffs principal with jurisdiction in five districts in Scotland, and that these should be whole-time judges. The Government, I think wisely, have continued the present system whereby sheriffs principal are drawn from senior members of the Bar in practice and who are, therefore, part-time judges. At the same time, the Government have left the matter flexible so that if it is found that in the future it is desirable that there should be permanent —what I would call full-time—peripatetic sheriffs appointed, that can be done. I regard it as rather important that there should be a bridge between the Scottish Bar in Edinburgh and the judicial system in the country in the form of a sheriff principal, who is in practice in the courts in Edinburgh and at the same time exercises a judicial function in the various sheriffdoms. I do not wish to say more, except that I think that the Bill is generally welcomed by the legal profession in Scotland, and I hope that this House will give it a Second Reading.

5.40 p.m.


My Lords, I should like to thank my noble friend Lady Tweedsmuir of Belhelvie for being so clear about what is basically —though with possibly one exception—a very good Bill. During the past months, some of us have listened to Second Reading debates when Committee stage speeches might have been more in order. I intend to reverse that process, for the very good reason that I wish only to ask Her Majesty's Government to add another clause to the Bill. I shall probably be told that this Bill is unsuitable for the purpose as it deals with administration. However, it is the only Bill available, the Matrimonial Reform Bill for Scotland having fallen by the wayside in another place.

Briefly, I want undefended divorce cases to be dealt with by sheriff and sheriff-substitute courts or, in the new terminology, sheriff principal and sheriff courts, and not kept as a profitable "perk" for some Edinburgh advocates—an unjustified expense to the taxpayer as the majority of such cases qualify for legal aid. Do not forget, my Lords, that the plaintiff as well as all witnesses have to be transported to Edinburgh from the far-flung boundaries of Scotland.

Let us examine for a moment the old objections which may be trotted out as to why this transfer should not be allowed; and I would underline the fact that both sheriff courts which I have mentioned have far greater powers than an English county court, which has jurisdiction in both undefended and defended cases. First, there is the objection that the sheriff courts will be overworked. In some cases that is true. But what is the objection to making more sheriffs, which in any case will have to be done if the increase in the crime rate continues? Secondly, there is the point that plaintiffs like the greater anonymity of Edinburgh. To my mind, that is sheer nonsense. The average time for each undefended case is 11½minutes of ritual words which no paper would bother to report. And may I remind your:Lordships that under Scots law only the bare bones of the case may be reported. Under English law this does not apply; so that Scottish plaintiffs are spared the imaginative and sometimes sordid reports which may appear in reports on English cases.

I can see no great difference in the jurisdiction needed in relation to ancillary matters, such as financial and property rights, as sheriff courts are already dealing with similar issues although in a very slightly different context, and I am not aware that there has been any criticism of their competence in securing just decisions. I have had many letters from learned legal institutions on this matter, all of which have been kind and helpful, and I sense that the majority are in favour of this reform. I am not of course asking that the Bill be thrown out, but I am asking Her Majesty's Government to think again as I intend to table an Amendment at the Committee stage.

5.43 p.m.


My Lords, I am not entirely in agreement with the noble Earl who has just sat down, and I hope that the Government will resist his proposal. I think there is a great deal to be said for uniformity in the administration of the divorce laws, and that can be achieved by taking cases in Edinburgh. There is the further reason that a little difficulty in obtaining a divorce is not a bad thing. If we are not careful, we may find ourselves in the position where it is as easy and as popular to get a divorce, as it is to get an abortion when required.

5.44 p.m.


My Lords, first of all, I should like to thank the noble Lord, Lord Hughes, very much for welcoming this Bill on behalf of the Opposition. I certainly share his feelings about the variety of responsibilities which come to a Minister of State. In a way, I find myself in exactly the same position as I was in six years ago, when I was an Under-Secretary of State in another place and, alas!, neither of the Law Officers were in another place. Like the noble Lord, Lord Hughes, I, too, am not legally qualified, and all I can do is to rely on the very good advice which is given to me and try to do my homework as best I can. I, too, have read the report of the proceedings in another place, and I quite agree with the noble Lord that this is a Bill which has been widely welcomed. I hope that that is also the general feeling of this House, which it certainly appears to be from the speeches we have heard.

I should like to thank the noble and learned Lord, Lord Guest, for having contributed to these proceedings. It is very good to have someone of his eminence to assist us with these legal Bills. I am glad that he referred to certain matters. In particular, I think he welcomed the new names of "sheriff" and "sheriff principal", because he felt that they really reflected the work which is already done. The noble and learned Lord also welcomed the provision in Clause 8, under which the Secretary of State may be assisted by someone who is legally qualified. He also referred to that part of Clause 2 which goes against the recommendation of the Grant Committee about the system of whole-time sheriff principals. We realise that the Committee reached their decision by a narrow balance, but we feel that it is a radical step in legislation of this nature to re-draw the sheriffdoms of Scotland, particularly at a time when we are trying to reconstruct the work of the sheriff court itself. We are also hoping to have legislation for the reform of local government in Scotland, so that any alteration would have to take account of boundaries. But that does not mean to say that it would not be possible to do so in future if it were thought necessary; so that flexibility is given in the provisions of the Bill.

My noble friend Lord Cromartie raised the question of undefended divorce cases. I remember very well that he asked me a Question on this subject in the House not so long ago. I am afraid that I was unable to satisfy him on that occasion, and I cannot satisfy him now. I think the reasons I gave earlier still hold good. I thought they were very well put by my noble friend Lord Balerno, and I thank him for assisting on this Bill as well as on the last one. He felt that we must not do anything, even in regard to an undefended divorce case, which would imply that we did not attach the greatest importance to it. That is why even undefended divorce cases go to the Court of Session and not to the sheriff court, for which my noble friend Lord Cromartie asked. In any case, this is not the right Bill by which to alter the jurisdiction of the sheriff court in this way. Therefore, my noble friend was quite right to anticipate my reply. It is also a fact that, even if undefended divorce cases take only 11½ minutes, they often turn into cases which involve the allocation of property and matters of very great moment; and it has always been felt that the Court of Session, being greatly experienced in these matters, would be able to build up a body of experience to deal with these cases which are of very great personal importance. Furthermore, it is unfortunately the case that the sheriff courts, as a whole, are now extremely heavily loaded with criminal business. Therefore, even to transfer undefended divorce cases to them, much less all divorce cases—for which this is not the correct Bill—would impose a great burden at a time when criminal and other business is rising throughout Scotland.

I thank all those who have taken part in this debate and who have welcomed this Bill. I believe that its provisions will enhance the administration of the courts in Scotland and produce a more flexible system, which is surely what we need above all else. Therefore, I again commend the Bill to the House.

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