HL Deb 03 July 1979 vol 401 cc284-93

5.41 p.m.


My Lords, I beg to move that this Bill be now read a second time. This is the second Bill dealing with reform of Scots law to be introduced by the Government this Session. The other Bill, the Bail etc. (Scotland) Bill, was introduced in another place last month. The two Bills together, I would submit, indicate that the Government are determined to push forward with law reform.

Clauses 1, 2 and 3 and Schedule 1 are concerned with the qualifications of persons to serve on juries in Scottish courts. The existing legislation, dating from 1815, which regulates the qualifications of jurors for jury service in Scotland, is scattered across the statute book. The most important of the statutes on the subject is the 150-year-old Jurors (Scotland) Act 1825, which has undergone numerous amendments, many of which are now as out of date as the parent Act. This Bill consolidates and updates the existing legislation on the qualifications of jurors, their duty to attend in response to a summons and their right to be excused from service. It also sets out in specific terms the penalties for jurors who fail to attend when summoned or who serve on a jury knowing that they are in one of the two categories specifically excluded from serving.

The present law regarding qualification for jurors was criticised by the Thomson Committee on Criminal Procedure in its Second Report, which was published in October 1975. At present the minimum age at which a person may serve on a jury in Scotland is not 18, as it is for other civic duties, and for jury service in England, but 21; and jurors are in theory required to own heritable property to the value of £5 per annum or movables worth £200. The Thomson Committee recommended that there should be a general provision making all persons between the ages of 18 and 65 registered as parliamentary or local government electors and resident in the United Kingdom for five years eligible to serve as jurors. They also recommended that there should be set out in statute the classes of persons who were ineligible for service; disqualified for service; and entitled to claim exemption as of right on specific occasions. Clauses 1, 2 and 3 and Schedule I carry out these recommendations.

I do not think that I need say much about Clauses 4, 5 or 6. Under Sections 8 and 9 of the Succession (Scotland) Act 1964, the husband or wife of a person dying intestate has a prior right to certain sums from the estate. Until those sums are paid, he or she is entitled to receive interest on them, but only at the rate of 4 per cent. per annum. This is clearly not realistic when interest rates generally are high, and leaves the spouse in an unfavourable position if payment of the balance of the estate cannot be made quickly. Clause 4 therefore enables the rate of interest to be altered by an order made by the Secretary of State. This order, like those enabling the Secretary of State to alter the amount of the prior rights themselves, is to be made by Negative Resolution procedure.

Clause 5 has been included in the Bill to rectify an anomaly created by the Succession (Scotland) Act 1964, and which came to light in a recent court case. Until 1964, the heir of the last surviving trustee in any trust could establish his own right to act as a trustee by proving himself to be the legal heir of the last trustee. However, the 1964 Succession Act repealed the provisions of the Titles to Land Consolidation (Scotland) Act 1868 which allowed this, and there is now no form of machinery by which an heir's character as trustee can be recognised. This clause fills the gap in the law by reviving the provisions of the Titles to Land Consolidation (Scotland) Act 1868.

Clause 6 removes the duty of the Registrar, Capital Taxes Office, Edinburgh, to preserve inventories of the estates of deceased persons without limit of time. Clauses 7 to 12 continue, and substantially complete, the task commenced by the previous Conservative Government when it passed the Sheriff Courts (Scotland) Act 1971, of implementing those organisational and civil law recommendations which require legislation, contained in the report, published in 1967, of the Grant Committee on the sheriff courts.

Clause 7 makes clear that the power given to the Secretary of State by Sections 10 and 11 of the Sheriff Courts (Scotland) Act 1971 to authorise a sheriff principal to act in another sheriffdom or to appoint a temporary sheriff principal enables the Secretary of State to make such an appointment where a sheriff principal, for some particular reason, is unable to take a case, although he is able to do the rest of his duties fully. Clause 8 provides that the sheriff court has concurrent jurisdiction with the Court of Session in both ordinary and summary Acquestrations.

Clause 9 gives the sheriff court concurrent jurisdiction with the Court of Session to appoint a trustee under Section 22 of the Trusts (Scotland) Act 1921 or to authorise completion of title in a lapsed trust under Section 24. Clause 10 provides that the sheriff court has concurrent jurisdiction with the Court of Session to appoint judicial factors. Clause 11, by removing the present financial limit of £50, enables the sheriff court to deal with all the comparatively rare actions for suspension of charges.

Clause 12 substitutes for the present rather narrow provisions relating to the remitting of actions from the sheriff court to the Court of Session a general right on the part of either party to apply to the sheriff for a remit on cause shown. It also gives to the sheriff a power to remit to the Court of Session of his own accord actions relating to the custody and adoption of children. This clause departs from the recommendation of the Grant Committee in so far as that committee recommended that the application for the remit should be considered by a Lord Ordinary. In the course of consultations on this matter it was suggested that the sheriff who has dealt with the case up to the point when an application for a remit is made would be in the best position to decide whether an application for a remit is justified, and this clause provides for the application to be considered by the sheriff.

Clauses 13 to 18 are concerned with a variety of matters. Clause 13 meets a need in our present arrangements for resolving disputes by arbitration by empowering a Court of Session judge to act as an arbiter in commercial cases.

Clause 14 fills a gap in the powers of the Lands Tribunal for Scotland. At present some statutes laying down that compenastion can be awarded by the Lands Tribunal state that the Lands Tribunal can award interest on whatever award of compensation they make. An example of this is the Lands Clauses (Consolidation) (Scotland) Act 1854, as read with the Land Compensation (Scotland) Act 1963. However, there is no general power given to the Lands Tribunal to award interest, which means that when the Lands Tribunal, for example, makes an award of compensation for revocation of planning permission under Part VIII of the Town and Country Planning (Scotland) Act 1972 it cannot award interest. This clause gives the Lands Tribunal the necessary general power.

Clause 15 deals with vexatious litigants. I think it might assist the House if I explain a little about the law regarding vexatious litigants. Under the Vexatious Actions (Scotland) Act 1898, the Lord Advocate may apply to the Inner House of the Court of Session to declare that a person is a vexatious litigant: that is, a person who has habitually and persistently instituted legal proceedings without any reasonable grounds. When a person is declared to be a vexatious litigant he can always apply to a Lord Ordinary of the Court of Session for permission to raise specific legal proceedings. At present that person can appeal again to the Inner House of the Court of Session against the decision of the Lord Ordinary refusing him leave to institute these new legal proceedings. This clause provides that the decision of the Lord Ordinary is to be final

Clause 16 makes general the power which the Court of Session has at present to entertain an action of reduction of a decree granted in any consistorial proceedings, whether or not the court would have jurisdiction under other grounds. An action of reduction is used where a party wishes to annul a decree granted by a court, when that decree has been obtained by fraud or when there was some other fundamental nullity. The present situation is that such a decree must remain in being simply because the parties to the action are no longer subject to the jurisdiction of the Scottish courts and the clause removes the jurisdictional requirement.

Clause 17 remedies certain defects in the Licensing (Scotland) Act 1976. Under that Act it was intended to impose liability for offences relating to clubs upon persons who were the official members of the committee of management or governing body at the time of the contravention. It was thought that these persons could be identified by reference to the register of clubs kept by the registrar under Section 102 of the Act, but one of the subsections of that section provides that the only official or member of the committee of management or governing body of a club whose name appears in the register is the secretary. This situation is now remedied by Clause 17 which amends the 1976 Act by requiring that a list containing the name and address of each official or member of the committee of management or governing body of the club is to be lodged with the registrar of clubs, either along with the application for certification of registration under Section 103 of the Act, or when changes are subsequently made to the previous list.

Clause 18 is a simple removal of doubt measure. On one reading of the Marriage (Scotland) Act 1977 it might be thought that if a registrar issues a marriage schedule within 14 days of a marriage notice, or issues a marriage schedule more than seven days before the date of the intended marriage, the subsequent marriage shall be void. It would be rather harsh for such a consequence to flow from the administrative failure of the registrar, and the provisions of the 1977 Act are amended to make sure that it could not happen. This provision is made retrospective to safeguard the validity of all marriages solemnised under the 1977 Act.

These then, in broad outline, are the matters dealt with in this rather technical Bill. I hope that I have been able to give your Lordships a reasonable explanation of them, though I fully appreciate that in a Bill dealing with so many different subjects as this one it is difficult to cover every item fully in a Second Reading speech, unless one were to enter into the type of detail which is more appropriate to the Committee stage of the Bill. My Lords, I beg to move that the Bill be now read a second time.

Moved, That the Bill be now read 2.a—(The Earl of Mansfield.)

5.53 p.m.


My Lords, may I start by extending my congratulations to the noble Earl, Lord Mansfield, on occupying the position which he now does occupy, and by expressing my condolences with him on the fact that he may be embarking on an experience which fell to me over many years, of finding that the Law Reform (Miscellaneous Provisions) (Scotland) Bill was something which cropped up with monotonous regularity. However, he has an advantage that I did not have, in that he is a lawyer and there- fore, probably, approaches these measures with a greater degree of enthusiasm than I was able to muster.

I must say that in the remarks which he has just made in explaining the Bill, he has removed many of the items about which I was far from clear in reading the Bill, even when I referred to the previous Acts which are being amended. So I must thank the noble Earl for making the provisions of this Bill much clearer to your Lordships.

If I may just touch on a very few of the items, it seems to me in regard to Clause 4 that, particularly at a time when minimum lending rate has reached a figure of 14 per cent., there could hardly be a better time to remove from the Statute Book a permanent provision that a spouse should be entitled only to interest. Through no cause of her own, this might cover a fairly extensive period, and 4 per cent. seems nowadays to be a rather niggardly basis of giving help. On Clause 6, I cannot imagine why it should have survived so long that there should be a necessity to preserve in perpetuity inventories of the estates of deceased persons. I cannot imagine that any of your Lordships would want to disagree with the removal of that obligation.

When I looked up the Act of 1971, I could not understand exactly what was the difference between what was in the Act and what is in the present Bill. However, I gather from what the noble Earl has said that the difference is confined to the possibility that a sheriff principal might regard himself as not being qualified to conduct a particular part of his duties at a certain time, rather than the previous provision which enabled another appointment to be made because of the illness of the sheriff principal, or because for some other reason he was unable to perform his duties. The noble Earl has made that aspect of the matter perfectly clear to me.

He referred to those clauses which continue further the provisions of the 1971 Act, and which give concurrent jurisdiction to the sheriff court on a variety of matters. It has become clear to me on the Royal Commission on Legal Services in Scotland that there are mixed views about the desirability of concurrent jurisdiction. But I must say that I cannot find any reason for disagreeing with the extension of the concurrent jurisdiction which these clauses include.

After what the noble Earl has said, there are no doubts in my mind about any of the other items which I had marked. However, before leaving the Bill I should like to refer to something which is not necessarily in the Bill itself, but about which I ought to say something. Clauses 1 to 3 relate to jurors. One of the things which have emerged in recent weeks is the difference in the practice in Scotland and in England about the way in which juries are expected to operate. We have had the spectacle of a jury down here considering their verdict over a period of two and a half days, while almost at the same time a jury in Scotland was out for, I think, some 10½ hours.

As I understand the position, a Scottish jury is not allowed to stop its deliberations until it has reached its decision, which might he regarded as a hardship in itself. One must, of course, remember that a Scottish jury is entitled to come in with a simple majority verdict, and, presumably, one of the reasons is that at some point, perhaps during a lengthy absence, they will come to the conclusion that they cannot get any nearer unanimity and will come in with their majority verdict. But, whether or not that is reasonable, what I think—and I had not realised this until reading what happened in recent weeks—is that a jury is not even entitled to get any food sent into them during that period. While it may be that there should be every encouragement given to a jury to reach a verdict as speedily as possible, I doubt very much whether in existing circumstances it would be regarded as reasonable that they should be starved into an agreement.

I do not know whether this Bill would be an appropriate one for amending this situation, and perhaps making more reasonable provision for the comfort of the jury during their absence to consider the verdict. Perhaps the noble Earl could give me some guidance on that. But in a Bill which is laying down the duties of a juror, the obligations of a juror and the penalties to which he may be subjected, it might be regarded as a reasonable quid pro quo that we should give some consideration to the comfort of jurors while they are deliberating on a case.


My Lords, before the noble Lord leaves that point, I wonder whether he would also comment on the fact that perhaps there is an association between what he has said and the fact that a jury in Scotland can bring in a verdict of not proven.


My Lords, whatever the verdict that they arrive at may be—guilty, not guilty, or not proven—it ought not to be one to which, at the end of the day, they have been driven by the pangs either of hunger or of thirst.


My Lords, may I begin on a personal note by thanking the noble Lord, Lord Hughes, very much for his kind remarks. He sat in this position, if I may so call it, for longer than most, with great distinction, and he knows precisely what the job entails. Of course, the noble Lord perpetuates the popular myth that lawyers of any sort can deal with anything. However, let me tell him that it is no asset, in my particular circumstances, to be a lawyer, because I am a lawyer in the wrong country. Therefore, the language is even worse than it would otherwise be, and I start, in fact, from a subordinate position.

I am very glad that the Bill as a whole commends itself both to the noble Lord and to the House. When one looks at the matter, it represents a tidying up of what probably has been ripe for some kind of reform for quite a long time. I very much take the point which the noble Lord expressed about jurors and their duties and comforts. As I understand it, the rights—or, rather, the lack of them—of a Scottish jury stem from an Act of 1587 which in 1979 could, I suppose, be considered to be rather archaic.

The position is that modern trials have become increasingly lengthy and, indeed, complex. I do not suppose that this situation caught up with Scotland as quickly as it did with England. However, I know from my own professional past that even 10 years ago the position had been reached, partly because the Crown now likes to get so many people together in the dock, that juries had to turn their attention to all manner of difficult assessments of fact before reaching their conclusion. Even if they addressed their minds to their task with all speed, it took a great deal of time. It may be—I am only speaking personally now—that this is beginning to catch up with the Scottish legal system, too.

The Government will have to consider, therefore, whether amending legislation is necessary. Having, in the words of the noble Lord, had help from the Box, I can go so far as to say that is even now being considered. Whether it can be considered in this Bill I just do not know. The Long Title is one of the longest which I have ever seen, but whether we can slip something in I do not, as I have said, know. If I may, I will take counsel about the matter and communicate with the noble Lord in some way, because I agree wholeheartedly with him that this is something which needs to be amended, and amended fairly quickly. However, I am not sure whether it will be possible to do anything about it in this Bill.


My Lords, one advantage of having such a Long Title is that anything which had to be added to it would, on a percentage basis, be very small.


Yes, my Lords, but so far as jurymen and their refreshment is concerned it is very important that we should get it right. Having said that, I am glad that this large and somewhat cumbersome but nevertheless useful Bill apparently commends itself to the House.


My Lords, before the noble Earl sits down, may I ask him whether there is likely to be a Bill relating to English juries, or whether England is supposed to be perfect while Scotland needs a new Bill?


My Lords, even though I am an English barrister, I would not say that the criminal law of England is perfect. However, I shall bring my noble friend's observation to the attention of my right honourable friend and point out to him that it appears that in certain directions the law of Scotland has now advanced further and in a better direction than that of England.

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