§ 3.38 p.m.
§ Lord Mackay of Clashfern
My Lords, I beg to move that this Bill be now read a second time. Four major changes are contained in this Bill relating to Scotland: it gives the sheriff jurisdiction in divorce actions; it enables the relaxation of the requirement for corroboration in certain classes of divorce action; it confers on 833 the Secretary of State power to regulate the fees paid for legal aid, and clarifies his power to regulate fees for legal advice and assistance; and it transfers to the Secretary of State the existing powers of the High Court of Justiciary and the Court of Session to regulate court fees, or court dues, in the Scottish courts.
This Bill was introduced in another place, and received a general welcome from all parties. I am happy to say that, subject to a few minor and technical amendments, the Bill which I present to your Lordships today is substantially unchanged from that which my honourable and learned friend the Solicitor General for Scotland commended in another place.
Clause 1 brings actions for divorce within the jurisdiction of the sheriff. At present in Scotland, it is possible to raise an action for divorce only in the Court of Session in Edinburgh. It is, therefore, necessary to employ counsel and, where the party's solicitor does not have a place of business in Edinburgh, also to employ an Edinburgh agent in order to enable counsel to be instructed. This arrangement can cause inconvenience and involves increased expense for parties concerned in the divorce action, and also, inevitably, for the legal aid fund.
For some time now, there has been much informed pressure to give the sheriff competency to deal with actions for divorce. The question was considered by the Royal Commission on Legal Services in Scotland, chaired by the noble Lord, Lord Hughes, who I am very glad to see in his place today, and in their report presented to Parliament in May, 1980, they recommended that not only should the sheriff be given jurisdiction in divorce actions, but also that the sheriff court should have exclusive jurisdiction as a court of first instance in these matters. In the light of comments received on that report, we concluded that the benefits which the commission had in mind could be achieved by giving the sheriff jurisdiction in divorce actions, but retaining also that of the Court of Session.
Under the provisions of this Bill, the existing jurisdiction of the Court of Session to hear divorce actions at first instance will therefore remain, but the sheriff will have a similar and concurrent jurisdiction. Since publication of the Bill, so far as I am aware, no one has queried the benefits it will bring in increased convenience to the general public, but we have had representations that it is doubtful whether the effect of the Bill on the cost of a divorce action will be such as to justify the extension of the sheriffs jurisdiction. These representations have been most carefully considered coming, as they do, from bodies of the stature and experience of the Faculty of Advocates and the Society of Solicitors in the Supreme Courts of Scotland.
On the question of cost, the society have been good enough to submit to us an extensive memorandum setting out their views on the provisions of the Bill, which I understand has now been made available to your Lordships also. They have also gone to some trouble in preparing specimen accounts to support their own view that divorce in the sheriff court will, in practice, prove more expensive than divorce in the Court of Session. Although our own views on relative costs had been the subject of detailed and careful consideration taking into account all relevant factors, 834 we have given the accounts produced by the SSC Society further detailed attention. We must, however, bear in mind that this is not an exercise which can display unchallengeable exactitude, given the suppositions which necessarily must be made in relation to the eventual procedure which will be adopted in divorce actions in the sheriff courts.
We are not persuaded that our original calculations were wrong, and we find support on a factual basis in the figures given in the latest annual report on the Scottish Legal Aid Scheme, from which it is possible to estimate the actual costs involved. in legally aided divorces. In our view, these figures form a more satisfactory basis for argument than any hypothetical figures based on the, as yet, unresolved procedure of the sheriff court in divorce actions.
The estimated average cost to the legal aid fund of a Court of Session divorce action in 1981–82 is around £520; the estimated average cost of a sheriff court action for separation and aliment is around £270. Although I appreciate that in an action for divorce in the sheriff court additional matters will have to be considered, these additional matters will not be of such complexity as to justify the difference in cost between the two figures.
As a further example, one might look at an undefended divorce in the Court of Session where the grounds arc adultery and where the affidavit procedure is used. At present in such circumstances, if only one Edinburgh agent were to be involved the cost would be about £290, but, where there is an Edinburgh agent and a country agent, the cost of the same divorce would be £357. The accounts produced to us by the SSC Society have prompted a further useful reconsideration of the cost savings which can be expected to come from the proposal to allow divorce in the sheriff court, and I am satisfied from our various calculations that cost savings will result, although it is difficult to be precise, including a saving in legal aid expenditure of between £1.3 million and £1.8 million in a full year.
I hope and expect that it will be possible to devise a procedure relatively free of complications for divorce in the sheriff court. There has already been introduced with effect from 11th January, 1983, in the Court of Session the simplified procedure recommended by the working party, chaired by Lord Cowie, to whose work I desire to pay tribute here, which is appropriate in actions for divorce based on non-co-habitation for two or five years where there are no children under 16, no dispute about financial provisions and where neither party suffers from mental incapacity. It is the intention that the procedure should be extended to the sheriff court as soon as the sheriff has jurisdiction in divorce. This procedure, since it has been introduced, has been widely welcomed and is now in full operation.
Our proposals have also been criticised in respect of the ability of the sheriff courts to deal with divorce actions from the point of view of resources in staff and accommodation. We have carried out a survey of all the sheriff court accommodation throughout Scotland, and this survey has led us to the conclusion that in no place will we require to acquire additional accommodation. Likewise, subject to the requirement for a net total of 16 additional staff and the equivalent of three extra sheriffs, we are satisfied that the sheriff 835 courts will be able to absorb the extra workload without notable difficulty.
In this connection, it is also important to bear in mind a fact which does not seem to be generally appreciated; that steps which are being taken to provide for alternatives to prosecution for traffic offences should, in no small way, offset any increased workload arising from divorce actions. When they are implemented in full, the effect of the provisions of the Transport Act 1982 could be, based on the criminal statistics for 1979, to remove from the sheriff court up to 40,000 cases each year. This should result in a significant reduction in the workload falling on sheriffs and sheriff clerks' staff and will help to offset the increased workload caused by divorce.
So far, I have spoken of the financial advantages in giving the sheriff a divorce jurisdiction. Nevertheless, I would not like it to be thought that our decision on this question had primary regard to the financial consequences. Where a marriage has broken down, I think that there is much to be said for a system which enables the divorce to be obtained as quickly and as cheaply as is compatible with the seriousness of the matter. By enabling the local sheriff to deal with these actions, I think that the Bill does just that and, even if—and this is very unlikely—the savings prove not to be as significant as we expect, I think the added convenience to parties in having their divorce dealt with locally if they wish it is ample justification for the provision. I must, however, stress that this Bill will not make divorce "easier" in the sense of affecting the grounds of divorce.
I turn now to Clause 2, which allows the courts to dispense with the present requirement that facts need to be corroborated in such classes of undefended divorce actions as may be prescribed by order made by the Lord Advocate. It is intended that this provision will operate in conjunction with the simplified divorce procedure recommended by Lord Cowie's committee and which, as I said, has already been introduced. Initially, therefore, I intend to apply the provision, assuming that it is passed, to undefended divorce actions based on non-cohabitation for two or five years where there are no children of the marriage under 16, where the court is not asked to make any order for financial provision and where neither party suffers from mental disorder. In the light of experience of its operation, the clause will then enable consideration to be given to extending it to other classes of case.
In providing for a relaxation of the evidential requirements of this nature, we are not denying the court the opportunity to call for further evidence, if they do not consider that the facts have been established on the evidence of one witness alone. The clause is drafted in similar language to that used in Section 9 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968, with the result that the court's discretion to call for further evidence will remain. In all consistorial actions, other than those to which this clause applies, the present requirement for proof of the facts by corroborated evidence will remain whether or not the action is defended.
Clause 3 of the Bill empowers the Secretary of State to regulate legal aid fees and outlays, and lists certain areas which are likely to be covered by the necessary 836 regulations. This represents a straightforward—and some would say overdue—step to rationalise the arrangements for fixing legal aid fees. At one time, legal aid accounted for only a small proportion of litigation in Scotland. In those circumstances, it may not have mattered unduly that the determination of fees for legal aid, as well as other court work undertaken by solicitors, was made by the Court of Session in civil cases and by the High Court of Justiciary in criminal cases. Howevery, the proportion of legally aided work has risen very significantly in recent years.
Since the Secretary of State is responsible for meeting the cost of legal aid, which will exceed £30 million in the current financial year, it is clearly reasonable that he should have responsibility for the regulation of the fees which relate to legal aid work. The case for assuming such power is all the stronger when one considers the need to have regard to the prevailing public expenditure guidelines, as is done in the case of other professional services whose cost is met by the Government.
It is not the Government's intention to restrict the growth in legal aid expenditure simply by curbing fees and outlays paid to solicitors and counsel for legal aid work. The level of fees is nevertheless an important factor in legal aid spending and not one which can be ignored. Indeed, since the Government came to power in 1979, the cumulative effect of increases in solicitors' fees has been some 86 per cent., compared with an allowance for pay and price increases of less than half that figure.
Under the present arrangements the court is placed in a most invidious position in having to prescribe fees which cover both legal aid and private court work. It has the unenviable task of reconciling the interests of the profession and legal system with the prevailing public expenditure constraints. Under the new arrangements the Court of Session will continue to be concerned with fixing the fees for litigation which is not legally aided. While, obviously, some solicitors may choose to provide little or no legal aid, there has been no shortage of able solictors willing to act on behalf of legally aided clients. As the noble and learned Lord is sitting opposite to me on this occasion, I should also say that there has been no shortage of very well qualified counsel to represent legally aided clients. I have no reason to believe that this position will change. Nor, so far as I am aware, has there been any suggestion that solicitiors providing legal aid do other than their best for their clients. Indeed, one of the complaints sometimes made is that they have an advantage over privately funded clients with limited resources.
The growth in legal aid expenditure in recent years has been staggering and it is necessary to examine the reasons for this. There are various factors. One has been the growth in legal fees and it would be irresponsible of the Government to ignore this and to fail to apply the same criteria as apply to the consideration of remuneration of other professional services in the public sector. It is also necessary to examine the scope for limiting unnecessary expenditure and securing better value for money. This, as I have explained, has been one of the considerations behind the proposal in Clause 1 of the Bill to give concurrent 837 jurisdiction to the sheriff court in divorce actions and the introduction on 11 th January of the simplified procedure. Both these changes will facilitate savings in legal aid expenditure.
Further consideration is being given to other possible changes in the arrangements for criminal and civil legal aid. The Government are examining the various ways in which money is spent and whether they represent the best way of using the resources available for those most in need of legal aid. Obviously this must be the primary objective. The great bulk of payments for legal aid work is to solicitors. A working group has been established with the Law Society of Scotland to set in hand a survey of solicitors' costs and remuneration to provide a basis on which legal aid fees may in future be determined. I hope that in consultation with the profession simpler and more straightforward tables of fees may in due course be devised. Simplification of the arrangements for compiling and assessing accounts could in turn result in savings in legal aid administration.
Clause 3 also gives the Secretary of State power to regulate the fees and outlays payable to counsel. The High Court of Justiciary has had the power to prescribe counsel's fees for criminal work but has never formally exercised that power. Instead, the Faculty of Advocates have provided an informal table of fees to the Law Society for use as the basis for assessment of counsel's fees. The precise nature of the form of control of counsel's fees in the future will be worked out in consultation with the faculty.
Clause 3, in our view, places upon the Secretary of State the duty to regulate fees where he is responsible for their payment. This is the general pattern in the remuneration of professional services in, for example, the National Health Service and elsewhere, where services may in part be public and in part private and, as I have suggested, there are good reasons why it should apply also to the remuneration of legal aid.
Clause 4 transfers from the High Court of Justiciary and the Court of Session to the Secretary of State the powers to regulate, with the concurrence of the Treasury, certain fees payable to the courts in both civil and criminal proceedings. At present the statutory power to regulate court fees rests with the Court of Session in relation to civil matters and the High Court of Justiciary in relation to criminal matters under the provisions of the Courts of Law Fees (Scotland) Act 1895 and the Sheriff Courts (Scotland) Act 1907. This change (which is supported by the Lord President of the Court of Session) proceeds on the basis that, since the Government are responsible for providing and maintaining the courts, the Government should be directly responsible for the level of the court dues.
There was general support for the principle of Clause 4 in another place, not least because it will result in a greater measure of parliamentary accountability in relation to court fees. The Government's general approach to the policy on the level of costs to be recovered by way of court fees was set out in the Treasury Minute on the Twelfth Report from the Committee of Public Accounts for the Session 1981–82 (Cmnd. 8759). Assurances have been given, which I repeat, that it is not our intention to use the 838 transfer of powers to change significantly the level of cost recovery for criminal fees; nor to extend the range of fees being charged in the district courts.
Clauses 5, 6 and 7 are standard clauses dealing with financial provisions arising from the Bill, minor and consequential amendments and commencement. Your Lordships may wish to note that while Clause 7(2) provides that the evidential provisions will come into operation two months after the Bill receives the Royal Assent, the remaining clauses will be brought into force by order by my right honourable friend the Secretary of State. I do not anticipate that the sheriff will have jurisdiction in actions for divorce earlier than the beginning of 1984. This will allow time for final preparations to be made, including the formulation of procedural rules for divorce actions in the sheriff court by the Sheriff Court Rules Council. I commend the Bill to your Lordships.
§ Lord Mishcon
My Lords, before the noble and learned Lord sits down, may one thank him for his very lucid explanation of the money saving factors in the Bill, but am I not right in thinking that the Bill contains no provisions to deal with conciliatory services, especially those relating to divorce matters, or even encouragement of them in an informal way in the courts? Apart from the human aspect, is this not rather uneconomic in relation to legal costs?
§ Lord Mackay of Clashfern
My Lords, I confirm that there are no substantive provisions which deal directly with that point. It is conceivable that that matter could play a part in the procedural rules which the Rules Council will now go on to consider.
§ Moved, That the Bill be now read a second time.—(Lord Mackay of Clashfern.)
§ 3.56 p.m.
§ Lord McCluskey
My Lords, first I congratulate the noble and learned Lord the Lord Advocate on getting through his 25-minute speech in a mere 16 minutes. Secondly, I thank him for his rapid exposition of this small Bill. I realise, however, that it would be proper for me to declare an interest. It is slightly difficult for me to define precisely what that interest is, but a Bill which has the practical consequence of diminishing the jurisdiction of the Court of Session and putting counsel's fees, including my fees, firmly under the control of civil servants in St. Andrew's House must have some effect, and probably a fearful one, upon all practising advocates. So one's instinct is to dislike the Bill. However, I put my instincts aside and look at the Bill upon its merits.
I cannot invite your Lordships to greet the Bill with any enthusiasm, for although some of its provisions, taken in isolation, can be justified, the Bill itself, from the viewpoint of the Scots lawyer, has no coherence, no logic and, in my view, no common theme. It is motivated by one bleak and increasingly familiar idea: the desire to reduce expenditure upon public services, in this case the administration of justice.
This Government have always engaged in a good deal of rhetoric about law and order, but when it comes down to pounds and pence the order gets the money and the law gets the cuts. The desire to save 839 money or to reduce public expenditure is in itself to be applauded, but no Scots lawyer can be other than dismayed by the Government's decision, which is evidenced in this Bill, to by-pass Scotland's excellent law reform machinery and to rely instead upon such initiatives as spring, as in the case of this Bill, from the Treasury or, in the case of the Police and Criminal Evidence Bill, from the Home Office.
This Bill was conceived by accountants whose sole brief was to find as many ways as possible, within the limits of a seven-clause Bill, to reduce the amount of money spent on justice in Scotland, without any real consideration of the likely side effects upon the quality and efficiency of the whole machinery of justice in Scotland. It is a bit hard to blame my noble friend Lord Hughes for any substantial part of the Bill. The Royal Commission made about 222 recommendations. I do not suppose that my noble friend Lord Hughes will applaud a selection of only two, inspired, as I conceive, by notions of thrift, particularly as neither Clause 1 nor Clause 2 does precisely what the Royal Commission recommended.
It is slightly disappointing for me to see the noble and learned Lord the Lord Advocate sponsoring the Bill. The thinking behind the Bill was not, I believe, done by him or by the Lord Advocate's Department. I do not really believe that the noble and learned Lord the Lord Advocate has the slightest enthusiasm for any part of it. The only traces that I can find of the Lord Advocate's influence in the Bill are, first, that he has prevented the sheriff court from having exclusive jurisdiction in divorce actions and, second, that he has in Clause 2 made some attempt to hold at bay the forces which are eating away at the very old rule requiring corroboration in Scottish law. The noble and learned Lord the Lord Advocate enjoys the highest possible reputation in Scotland and he risks diminishing it a little by putting his weight behind this particular measure.
Turning to the Bill itself in more detail, Part I, as the noble and learned Lord has said, does two things. It alters the balance of jurisdiction and therefore the workload of the sheriff courts, on the one hand, and of the Court of Session, on the other, to the detriment of the Court of Session; and it enables the Lord Advocate by order to make a slight alteration in the law of evidence. What I regret is the piecemeal character of these alterations to our law. The Government have made no secret of the fact that the only real justification for these alterations is a desire to save money. They are not alterations inspired by concern for the character and coherence of Scottish law or for the structure and harmony of the courts' system.
I believe it is true to say that every thinking lawyer in Scotland knows perfectly well that the interplay between the jurisdiction of the sheriff courts and the Court of Session presents an opportunity for a well-planned reform; one which would redistribute the workload so that the Court of Session, with its unique capacity and reponsibility for guarding and developing the law of Scotland, would deal with those cases where its unique qualities can be used; and, equally, so that the sheriff courts—with their greater informality, their potential for dealing with cases swiftly and summarily, and even cheaply—can be given all such cases and be 840 relieved of those litigations with which they are inadequately equipped to deal.
Clause 1, however, attempts no such redistribution, whether based upon jurisprudence, history or even proper cost-benefit analysis. It just hacks a piece off the Court of Session's jurisdiction and scatters it around the various sheriff courts. It does for jurisdiction what the steam-hammer does for cut-crystal. No one has really calculated what the effects of this particular measure will be. I believe that no one bothered to study them in any great detail. The Royal Commission noticed some and commented upon them, but no study was made. There will be effects, probably adverse, upon the junior Bar in Scotland; upon Edinburgh solicitors; upon the workload and ultimately the number of Court of Session judges; and upon the quality of decisions which fall to be given in such hotly disputed matters as custody, access, and financial provision in divorce.
There is likely to be, in my judgment, serious interference with the speed of litigation in many sheriff courts, especially the busiest of them, because of the transfer to those courts of the divorce motion roll. It is not just a question of looking at the divorces themselves, because there is an immense amount of incidental procedure which has to be handled by the court first thing in the morning. I fear that the handling of that business, especially in the busier sheriff courts, will inevitably delay—on some occasions by as much as an hour or an hour and a half—the start of the other business, and so cut into the time available for disposal of the ordinary business of the court, both civil and criminal.
As to the divorce system itself, there is likely to be some loss in efficiency and speed because of the loss of expertise which has been acquired by the Bar, by the Edinburgh solicitors and, especially perhaps, by the highly expert clerks of the Court of Session. It has been said by the protagonists of this change—and this comment was made again today—that divorce litigation is an easy matter which hardly requires the skills and brain power lavished on it. But the same can be said of many human activities from ballet to hang-gliding; it looks easy because the skilled performers conceal their art. But I fear that for some time to come the Pavlovas of the Court of Session will be replaced by the "Tumbleovas" of the sheriff court.
It is also said that this change will save money, and the noble and learned Lord the Lord Advocate so argued. No one has made a study to see if it will do so. The evidence, such as it is, is essentially anecdotal. Those who profess the belief that this change will save money do so on the basis that it must be cheaper. Let them remember the cautionary tales of the reform of local government, the restructuring of the health service, or even the centralisation of driving licence records at Swansea. There are simply no "musts" when bureaucracy is involved. Intuitive faith is no substitute for sound research, and nor is it a basis for legislative reform.
Turning to Clause 2, the provision there will save a tiny amount of money and will dispense with what has become in many cases a needless formality. My criticisms of its details I shall leave until Committee stage but the criticism I make as a matter of principle is this. The Scottish Law Commission has been 841 engaged for some time in a massive, coherent and very learned study of the law of evidence and has published documents on that. It has expressed tentative opinions on corroboration, including corroboration in consistorial cases, but has not yet pronounced its final view. In its Memorandum No. 46, it describes this question as being,of some importance";and I agree entirely. To my mind, it is at the very least ungracious to remit this important question to the Scottish Law Commission, allow the commission to spend much time and learning on its study, and then to legislate before the commission produces its report and recommendations.
A much worse example of by-passing the Scottish Law Commission is in prospect because of the extraordinary provisions of Clauses 53 to 56 of the Police and Criminal Evidence Bill, which have alarmed all alert lawyers in Scotland. I say, "alert", because one has to be alert to notice them; the Government did not take the trouble to consult any lawyers in Scotland and they put these clauses into an English Bill; but that, perhaps, is a question for another day. I deplore this indecently premature fiddling with bits of the law of evidence at the behest of Treasury or Home Office Ministers. If we are to reform the law of evidence, let us approach this task with a sense of its history and coherence. In Scotland, we should approach law reform with the kind of respect that a sculptor brings to a block of marble. The Government's approach is more reminiscent of a cow flicking its tail to displace inconvenient flies from its hindquarters.
Clause 3—enabling the Secretary of State to control legal aid fees—is, I believe, constitutionally defensible in itself. In the provision of legal aid the Secretary of State is the paymaster and there is certainly a case for saying that he should exercise direct control over the level of fees. But I wish to make two points. I am worried about the motivation and thinking behind this change. Publicly, Ministers are saying that they are concerned at the alarming increase in the cost of legal aid. That is indeed a matter for concern. But privately, senior Ministers and civil servants will tell you anecdotes about Glasgow solicitors who park Rolls-Royces or Porsches outside Barlinnie Prison while they interview their legally aided clients who are detained there. The implication is that the fees are far too high and that legal aid is a dripping roast. But the great mass of Scottish lawyers who undertake legal aid work are doing no more than earning quite modest fees for representing the poorest members of the public. The really prosperous members of my profession earn their fees in the private sector through acting for developers, insurance companies, property owners, those seeking alcohol or gambling licences, and persons legitimately anxious to keep their tax and rates to the legal minimum.
That brings me to my second point; and it is one that I should not have to make to a Conservative Administration. There is a free market in legal services and if the Secretary of State uses his new power—as I suspect he will—to depress legal aid fees while leaving the private sector unrestricted, he will seriously increase the danger, which is already there, that all the best legal talents will gravitate towards the more prosperous private sector and the poor on legal aid will 842 get a second-class service from second-rate lawyers. We have largely avoided that danger hitherto because legal aid remuneration is adequate, but the risks for the future are blindingly obvious. If the Secretary of State uses his new powers to drive the better lawyers out of legal aid work, he will tip the scales of justice significantly against the poor.
Clause 4 of this Bill has been largely ignored in public comment, and indeed in another place, because at first sight it looks technical in character. In the Scottish Grand Committee, the Solicitor-General for Scotland represented that it was a simple question of transferring a responsibility from the Lord President of the Court of Session to the Secretary of State.
The real, underlying purpose of Clause 4 ought to be made clear. Let me try very briefly to do that. As the Lord Advocate has said, the court fees referred to in Clause 4 are in effect a stamp duty; they are a tax upon litigation, a revenue-raising charge. They are the sums of money paid by the litigant to the court for the right to raise a summons or lodge defences or copy papers, and so on. So at different stages each litigant has to hand over in cash sums ranging from 10p to £56. The Government collect the bulk of these revenues. Of course, these revenues do not meet the cost of running the courts, and it would be absurd in a civilised society to expect the courts of justice to be self-financing. But the Government now intend to increase this tax on litigation by an enormous amount. It is impossible to say by how much because the Minister who spoke about this in the first Scottish Standing Committee gave an extraordinarily confused picture of the Secretary of State's intentions, ranging from an estimated increase in real terms of 5 per cent. annually, to an increase of 67 per cent. in real terms spread over the next three or four years. I hope that the Lord Advocate when he comes to reply to the debate will clarify what the Government's intention is in this regard.
As I say, court dues are a tax upon litigants. The only litigant who does not have to pay the tax are the Government themselves because Government departments are exempt. This Government came into office committed to reducing taxation. Litigants do not want to litigate; they are driven to it by life's various misfortunes or they are brought into court by somebody else. But they are the very ones whose tax is to be increased; they have no choice in the matter. The private litigant who is not in receipt of legal aid is the worst hit; unlike an insurance company or other corporate litigant he cannot set his court fees against tax. The clause may be technical in character, but its underlying purpose is malevolent and I regret to say that I have to deplore it.
My Lords, those of you who have been patient enough to listen to me might have got the impression that I was displaying a cavalier indifference to the wholly laudable objective of saving public funds. That is not true. I believe our litigation processes, civil and criminal, do consume an alarmingly high amount of public money, and, worse still, squander real resources. And I believe there is an unanswerable case for taking action to reduce the waste. But this Bill has been cobbled together in the hope, probably vain, that it will cut down the costs of legal aid. But it treats symptoms, not causes. It is based upon a wholly 843 misconceived theory of the cause of the problem. And for that reason it is, in the first place, extremely unlikely to effect a cure, and, in the second place, extremely likely to produce some rather nasty side effects.
The cause of this problem of over-expenditure on the system of justice is not, as the Government seem to think, that lawyers are charging excessive fees or that they are abusing the system. The real cause is that the whole system of justice in Scotland, and I suspect in England as well, is inefficient and its productivity is abysmally poor; We need to study the system, to identify the bottlenecks and the places where it creaks. We need to study the areas in which the system manufactures frustrations, delay and waste. I am not calling for a Royal Commission or a Committee of Inquiry, because I just do not believe that they are capable of doing this kind of job. What we need in Scotland is an Institute of Judicial Administration, staffed, like the Scottish Law Commission, by experts who can on the basis of sound research assess what changes can be made to improve court productivity and to reduce waste. Until the Government create a Department of Legal Affairs, as recommended by the Royal Commission, the Government should sponsor and finance an Institute of Judicial Administration, possibly within the university system, as at Birmingham. The Government would finance it, but in truth I believe it would soon pay for itself many times over.
Let me give your Lordships a few examples of the sort of simple changes that might be studied—and I am sure there are hundreds more. I believe that we could make much more widespread use of the "routine evidence" technique now to be found in Section 26 of the Criminal Justice (Scotland) Act 1980; we could allow either party in a cause, criminal or civil, to offer to prove any fact by means of a signed certificate. It is done in a good many cases at present and it could be done in a good many more. By that means he can dispense with having to bring the witness to court if the matter is not in dispute. Of course, if the matter is disputed, the witnesses have to be brought to court.
That could tie in with improvements in Crown Office practice. I hope I speak with some authority here, because I spent some 12 years working in that unique, and I believe very fine, institution. Following upon the oral Question I asked today, I believe that the Crown should be much readier to disclose the Crown precognition in jury trials. I acknowledge that there are problems that would justify something less than complete disclosure, but there is room for the Crown to do much more than it has done traditionally. I am sure that the profession would respond in two ways: first, by spending less money on obtaining statements from witnesses, and secondly, by being more ready and able to enter into formal agreements to allow the cancellation of witnesses who would otherwise have to come to court.
In a study reported in Monday's Scotsman it is disclosed that three-quarters of the police cited to attend court in Scotland were not even called into the witness box. They were cited from their beds, from holiday, they were cited from duty. There are several 844 causes for that scandalous state of affairs, which in the whole of Scotland might cost £4 million or £5 million per year. I am sure that an Institute of Judicial Administration could soon identify those causes and suggest remedies. I have suggested one.
In addition, however, the Crown Office could exercise much tighter control over the Crown's own indictments and complaints, so as to avoid what is known as "overcharging". Many people, not least these policemen, are aggrieved and angered when the accused, having maintained a blank denial of the charge, pleads guilty on the morning of the trial and nobody is called into court to give evidence. I have every sympathy with their anger. But too often these critics jump to the wholly unjustified conclusion that the fault lies with the defence. No doubt it does on many occasions. But on a great many occasions the responsibility rests with the prosecutor, who has brought five charges when he is really only looking for two convictions. When that is made clear to the defence on the morning of the trial, a plea is negotiated and everybody goes home happy, except of course for the disgruntled witnesses whose time has been wasted.
Lest the House should think that my evidence on the matter is purely anecdotal, may I refer to a Written Answer that I obtained from the Lord Advocate on 25th November 1982, in the Official Report at cols. 1053/4. That discloses that in the most serious, and I hope the best prepared, cases of all—murder cases—the Crown in the first 10 months of 1982 charged 93 persons with murder of whom only 36 were convicted of murder. The Crown accepted reduced pleas, including 8 pleas of not guilty, from no fewer than 22; and 34 were acquitted.
I am not criticising the Lord Advocate or the Crown Office for this state of affairs. Certainly not. Indeed, my own researches into the mid-1960s disclose that this degree of overcharging is by no means new. But its antiquity does not give it sanctity. It is a problem that we simply cannot afford to continue to ignore. If there is a degree of overcharging in the highest court of all, we can be sure that it is rife in the lower courts.
Finally, let me mention the courts themselves. The whole issue of court productivity and court efficiency needs careful study by experts dedicated to the elimination of waste. They need to study the distribution of business, the timetabling of cases, the great problems and expense caused by delays occasioned by the courts having to deal with urgent interlocutory business before starting on the main business of the day. The problems of witnesses and jurors are obvious. But the expense to the legal aid fund is very large indeed. Lawyers who have to waste their time sitting around the courts waiting for their cases to be called are paid a compensatory fee known as "waiting time". I ask, and I hope I have given the noble and learned Lord the Lord Advocate ample notice privately of this question, approximately how much money does the legal aid fund spend to compensate practitioners for waiting to have their case called or to have their clients judicially examined?
We are also anxious to know if the Government are prepared to allow any amendment to this Bill, if good reason for amendment is shown, or are they so determined to have this Bill on the statute book by Easter that they will oppose any amendment so as to 845 prevent the Bill from going back to another place? I hope that the noble and learned Lord the Lord Advocate can deal with that.
I conclude by saying that I make no secret of my distaste for this Bill. My distaste springs from my apprehension that its motivation is wrong-headed and that in Parts II and III we are being asked to confer powers on the Secretary of State without his telling us with any frankness how he intends to use them. The Bill does little good for the litigant and nothing for the law. I regret it.
§ 4.20 p.m.
§ Lord Wilson of Langside
My Lords, I have listened with great interest, as one is always compelled to do, to what the noble and learned Lord, Lord McCluskey, has said about this Bill. He is very persuasive about it, and there is little in his sweeping review of the state of the Scots law with which one could disagree. But he is quite wrong about this Bill. If we were to wait for this grand review before doing anything about legal aid, criminal legal aid and the jurisdiction of the sheriff courts in divorces, then we would all be dead, if my experience is anything to go by, before anything was achieved.
For my part—a mere former tumbler rather than a Pavlova or a Nijinsky—I greatly welcome this little Bill and I believe that the noble and learned Lord, Lord McCluskey, is quite wrong in his approach. As I understand the purpose of this Bill, it is to reduce the delay and expense which going to law too often involves for people. When the National Health Service was developing someone wrote a book for doctors entitled, Patients are People. During the years in which I have been involved in my humble tumbling, I often wished that someone would also write a book entitled, Courts are for People.
As I have said, this Bill, as I understand it, has as its principal objective to reduce, if it can, the delays and expenses which going to law too often involves. I should have thought that that was a worthy objective; an objective which any lawyer, young or old, ought to do everything he can to seek to achieve. Indeed, he should be dedicated to these aims; and I was a little doubtful about the dedication of the noble and learned Lord to these objectives. Without pausing to explore the question whether the legal profession is sufficiently dedicated to these ends, I have no doubt at all that the public who have to go to court, and the taxpayers, will find a little bit of joy from, not, of course, an impressive sweeping reform, but an improvement in the state of affairs in the real world in which they live and which they find when they go to court, whether as a litigant, a juror, a criminal in the dock or whatever. They will find some little satisfaction in the fact that at last the Government are doing something about two problems which Governments, including the Governments of which both the noble and learned Lord, Lord McCluskey, and myself were members, have for too long neglected.
Apart from that, I do not imagine that this Bill will excite a great deal of interest among any except those informed on the history and development of the Scottish legal system. However, I think that, in fact, this giving of jurisdiction to the sheriff courts in divorce actions is a small move, perhaps not frightfully 846 important or memorable but not unimportant, in the right direction. It means that for practical purposes the sheriff courts now have almost complete jurisdiction, concurrent with that of the sheriff courts in practically all civil litigation. I should have thought that was a good thing; and there are many, of whom I am one, who think that the only argument is whether or not it ought to have been done 20 years ago, because, although we must have vision, if we have too much vision and too little appreciation of the realities nothing ever gets done. That, at least, is a lesson that I learned. In my case I spent many years trying to contribute to the reform of the sheriff courts. I was not as successful as I wish I had been, but I did my humble best.
I do not want to rake over ashes of the past—that is never a profitable thing to do, here or anywhere else—but I cannot refrain from observing that the resistance to this measure which has come from some corners of the Edinburgh legal establishment is something which I regard as being worthy of a better cause. My whole experience of working in this field has led me to the conclusion that the legal profession's capacity to quarrel with proposals for change makes the approach of some of our more conservative trade union leaders look like dangerous radicalism.
This concurrent jurisdiction set-up—and the noble and learned Lord, Lord McCluskey, was right about this—is not a rational or logical thing. It does not follow that because of that it is necessarily right for change, or that it is a bad division of jurisdiction. I agree entirely that it is something the Government ought to be looking at. I hope that they will look at it and, when they are ready, come forward with their proposals.
There have been some in the profession who have questioned the prudence of this little Bill and the effects which the Government claim will flow from it. All the Members of the other place received representations from the profession. That was perfectly proper, and I am not suggesting that there is anything wrong or sinister in that. It may be that some of your Lordships received them. They did not send any to me, perhaps because with my views on these matters they felt they could not change my mind. But I am always ready to change my mind about anything. Only the dinosaurs could not change, and we all know what happened to them.
I am not going to try to answer the detailed representations which have been made against these provisions, and to which the noble and learned Lord the Lord Advocate has replied, because I think that the simple fact, and the simple answer to these representations, is that if the sheriff courts cannot do this job at significantly greater speed and at less cost than the Court of Session then the Government must take a quick hard look at the organisation and administration of the sheriff courts, where the speedy and efficient disposal of business is their statutory responsibility. One only needs to explore the practicalities of the situation in the sheriff courts as against the Court of Session to appreciate that the point I make is at least a statable one, even if your Lordships do not accept it.
Part II of the Bill aims at bringing the cost of legal aid under more effective control. It seemed to me that 847 the noble and learned Lord, Lord McCluskey, was blowing a bit hot and cold about this. At one moment he seemed to be saying that the Government were too concerned with saving money and at another moment he was saying that he quite appreciated that it was a good thing to do. But the need for this control has been notorious for years; we all know that. I have heard a good deal of criticism of the civil side of the business, but I should not like to pass judgment on that because I am not sufficiently well informed. But off and on I have had a pretty close look at the way in which the criminal legal aid system, introduced in the dying days of the Government in October 1964, has worked. I find it very disturbing indeed that Governments in the past have not grasped the nettle.
The scheme was introduced before the general election of October 1964. My impression is that no one in that Government took a close look at the matter. I do not blame them because they were probably all at the hustings or perhaps elsewhere. Initially—and here I disagree with the noble and learned Lord, Lord McCluskey—the fees were fixed far too high. I thought that it was rather like what happened with the dentists. Those of your Lordships of my age will remember what happened to them when the National Health Service was introduced. The fees were fixed too high and there was a great bicker before the matter was put right.
Something similar happened in October 1964. Certainly from my examination of the matter—of course I may be wrong, but this is a considered judgment—had the fees been more carefully considered then, and had the need for safeguards against abuse been appreciated and such safeguards been built into the scheme, we could have had just as good a scheme as we have had but for about half the cost. To put the matter another way, over the past 18 years we have paid about twice as much as we need have paid. When I first came to look at the situation between 1965 and 1967 it cost £250,000. Today the cost is £11½ million and that cannot be explained either by inflation or by the increase in crime.
The Labour Government of 1966 to 1970 took a pretty close look at the situation and it was argued and discussed. Of course at that time we had become concerned because we discovered that we were beginning to pay to those who were employed in defending a mere proportion of criminals, more than we were paying those whom we employed to prosecute all criminals. That point was taken up with the Treasury and there was the usual type of discussion, argument and difference of view that one gets within Government. The best that those who wanted change got out of it was an amendment. I am going to sit down shortly because I think that the amendment illustrates graphically, and, to me at the time—and still—rather horrifyingly, the attitude of a small part of the legal profession towards criminal legal aid.
There was a provision in the regulations which allowed extra payment to those who were involved in cases of special difficulty, duration or complexity. The decision as to whether a case fitted into one of these categories and therefore justified the increase in fees, lay with the Law Society of Scotland. I must say that this always seemed to me an absurdity; it was as if we 848 gave the trade union leaders the right to decide the hire to which the labourer would be entitled. So we changed it to give it to the courts. Who better than the judges to say whether a case fitted into that special category and deserved additional payment? We made that change but what a struggle it was to get that change. At the time the noble and learned Lord, Lord McCluskey, was a colleague of mine. I do not know whether he remembers the details, but he obviously draws different conclusions from the experience from those that I do.
What did this sensible change do? The Glasgov, solicitors practising in the criminal courts went on strike. I thought that they were a disgrace to their profession and I still do. There were many in the Scottish Office who, for one reason and another, wanted to settle that strike. The arguments were put from the other point of view very forcefully. This took place in about 1967 or 1968. The certainty that the strike would be broken was assured when one of the striking solicitors said to the press, "You know, this is costing me £20,000 a year". That was a great deal of money in those days.
In so far as this Bill tries to bring that type of attitude under control, it is a good thing and so I welcome it. Indeed, we on these Benches welcome it. I wish it success. There will need to be a careful monitoring of the working of the provisions and I hope that full and friendly consultation will take place with the legal profession. But on the whole it will make things better, and not before time.
§ 4.38 p.m.
The Earl of Selkirk
My Lords, when we were taking the Divorce Bill through this House in 1976 a certain amount of pressure was then exercised to extend the jurisdiction of the sheriff courts to include divorce. I resisted that, and it was resisted very diliberately because the breakdown of marriage was an entirely new basis and it seemed to me that it was a matter which, frankly, needed to be decided, in the first place at all events, at the highest level. I felt that if it were put in the sheriff court—and I have no criticism of it—it would be wrong for it to go there for the initial period.
Seven or eight years have passed and I imagine—although I do not know this—that the new Act has operated fairly well. I regard it, for that reason, as quite inevitable that this matter should pass to the jurisdiction of the sheriff courts. But I do not think that we should underestimate the very considerable economic consequences. There are about 12,000 divorce cases going through the courts of Scotland every year. This could mean a transfer of activity from one category of the legal profession to another category, with considerable economic consequences. We are taking these cases away from the Court of Session which has developed great skill in dealing with them, and giving them to another set of courts who, with great respect, have no experience at all. It is important that this changeover should be smooth, not only to the court but, of course, to its clients. This is being spread among 40 sheriff courts around the country and will produce three new sheriffs. I am surprised to hear my noble and learned friend say that no further accommodation will be required. I dare say that he is right, but I am surprised.
849 What worries me mostly is delay. I know absolutely nothing about the current sheriff courts, but from everything I have heard, it seems that today it takes an enormously long time for a case to be heard in a sheriff court. I do not know whether that is wholly true, but one hears stories of delays of a very considerable character, and this puts a considerable additional load on the courts. My noble and learned friend is quite aware of that. He told us that many traffic cases would be taken away from the courts, which would be a relief, and I dare say that that is true. But I am concerned about delay and I would not be wholly surprised if people continue to go to the Courts of Session because it is quicker.
I am not very impressed with the financial arguments. I do not think that anyone will know the answer to that. Almost every case in divorce varies; there is an infinite variety of cases. I think that it is very difficult to make a comparison. My noble and learned friend said that there can be "no unchallengeable exactitude", a statement which I am sure is absolutely true.
I am concerned about this. The Court of Session is the oldest institution in Scotland and one of the most important. It deals not only with the administration of justice, but with a great deal of administration concerning various aspects of the life of the country, and that is of great value to the Scottish Office. It is available to assist the Scottish Office. It is extremely important that the Court of Session should not only be healthy and strong, but that it should attract men of the highest ability to work there and to make their profession there. That is the point about which I am slightly concerned, which I believe is of first importance. This institution stands for a long history of Scottish development which should not be lightly discarded.
I should like to ask my noble and learned friend this question: What is he doing about records? Up to now the records have, of course, all been centralised. They are now to be spread around 40 sheriff courts. It is very important to have the records. They should be reasonably accessible to members of the public, to see what is there. There is nothing in the Bill about this and I do not know what that will mean; but it is important that we should know where those records are and how they are being maintained.
I turn now to Clause 2. I think it is a serious matter to change a fundamental rule of evidence in Scotland, without the authority of anyone outside the Lord Advocate's Office or the Scottish Office. I do not know on what basis this is done. I do not quite know how it will work out. My noble and learned friend mentioned classes of one kind or another which could be used. I do not know what he will say about this, but perhaps I could ask this question. I do not know what is happening in the courts today, but I am told that one can get a divorce by affidavit. I take it that one comes to the court with one affidavit stating "I saw" or "I know that these parties have lived apart for two years", or whatever it may be, and one simply puts the affidavit in. It asks a great deal that someone can put that on a piece of paper without being cross-examined. I know that there is no defence, but is it not coming rather near to divorce by consent? I do not know how this works and I may have completely misunderstood 850 it. However, what is the basis on which these affidavits will be given?
I shall not say anything about legal aid because I really know very little about it. But will the running rate established by the Scottish Office be the normal rate of counsel or solicitors in their work outside legal aid? Will that be the basis? If that is not to be the basis, what will it be? Will it be that for as long as the Secretary of State thinks it should be that? I think that the point that the noble and learned Lord, Lord McCluskey, made about getting second-class legal services for legal aid raises an extremely dangerous prospect. This may very well occur, and here we could get into the realm of speculators. We ought to have a statement on this: will they pay the running rate or will they not?
I do not know very much about court fees, but they have risen a very great deal and I wonder whether my noble and learned friend has it in mind to raise them still further. Justice should be quick and, so far as possible, it should be cheap. But court fees are going in the opposite direction and will make the administration of justice more expensive. I hope that my noble and learned friend can tell us a little more about Clauses 2, 3 and 4 in particular. I regard Clause 1 as an inevitable step, but if he can tell us more I should be very grateful.
§ 4.45 p.m.
§ Lord Hughes
My Lords, I almost feel an intruder in this debate, and had it not been for the fact that I had the privilege and the pleasure of chairing the Royal Commission, I should not, in fact, have ventured in. For instance, I noticed that my noble and learned friend Lord McCluskey stated with total truth that he was able to conceal his enthusiasm for this Bill. After we leave the part relating to divorce—and my remarks will be confined to that—I neither feel it necessary to agree nor to disagree with anything that he said, because I do not feel any competence whatever in the matter. However, I do not find myself in agreement with the rather lukewarm welcome, if welcome is in any way an appropriate word to use, for the first part of the Bill.
When the Royal Commission examined these matters, one of the things which was most obvious to us as requiring our consideration was the matter of divorce. It had been raised over many years that having to go to the Court of Session was a source of needless expense. The noble and learned Lord the Lord Advocate referred to the savings which could accrue. He went on to say that, of course, that was not the only reason involved. I want to emphasise that when the Royal Commission looked at the matter the fact that there would be substantial savings in altered procedure so far as the commission was concerned was a bonus.
Their prime concern in looking at the matter was how to find a better service for those who needed to go to the courts; and while, in the examination of the matter, we were well aware of the fact that this would cause a diminution of income to junior advocates, because in the main the undefended divorces are handled by the junior members of the Bar, and while it would cause a certain loss of income to Edinburgh solicitors, we took the view that the law should not be 851 designed to provide an income to lawyers, but should be designed to provide a service for those who needed the law. If, in the course of improving the law, some lawyers receive less income, that ought not to be a deterrent to making the change.
I would point out that in our recommendations on divorce, of the 15 members of the Royal Commission only two entered notes of dissent to our proposals. One of these was an advocate and the other was an Edinburgh solicitor. However, I would point out that I have no reason to believe that either of them had any personal axe to grind in the matter. Certainly that is so of the advocate, because it is a long time since he was a junior advocate.
Therefore, we were made well aware of the financial effects, both to the legal profession and to the person who was going to court. I do not think that my noble and learned friend Lord McCluskey is right in accusing the Government of being animated only on this matter—I say nothing about the other parts of the Bill—by a desire to save money. One of our recommendations was that in undefended divorce cases we should follow the English practice and only allow advice and assistance. Given that this would reduce the cost to the legal aid fund of an udefended divorce from something over £300 to something like £50, and when I learn that it is only within the last three months that the Government have acted on that part of our recommendation to make arrangements for the limiting of the expense, they certainly cannot be accused of undue haste in seeking to save money there.
The figures which were available to us were that divorce was taking three-quarters of all the money that was spent on civil legal aid in Scotland, and amounted to almost £3 million. The scope for saving has been taken by the Government, but in my view taken rather belatedly indeed. The savings by transfer from the Court of Session to the sheriff court in what remains obviously is by far a smaller part of the saving to the legal aid fund than what has already been done within these last few months.
I regret that the Bill does not follow what we said in two aspects. On giving sole jurisdiction in the first instance to the sheriff court. I should like to quote in part the reasons why we felt that a concurrent jurisdiction was not desirable. On page 155 of the report we said:We do not, therefore, recommend concurrent jurisdiction in respect of divorce actions. There are, in our view, a number of strong arguments against concurrent jurisdiction. In the first place, it does not ensure that any case will necessarily find the appropriate level of court. Where there is concurrent jurisdiction the selection of the court rests with the pursuer, which probably in practice means with his or her solicitor. No reason requires to be given for the selection, and we do not think it is necessarily made on an objective assessment as to which court is most appropriate. Moreover, it gives an option to the pursuer which is denied to the defender. This seems to us wrong in principle. It would enable a pursuer to select the Court of Session with a view to threatening expense or inconvenience to the defender, thereby inducing him or her not to defend.That is only one of the considerations we had in mind. But having regard to all the evidence that we had we came to the conclusion that it would be better that a sheriff court should be the court of first instance. In that matter we were following a trend because 852 recently there has been less inclination to give concurrent jurisdiction, although in the great bulk of civil matters there is concurrence between the Court of Session and the sheriff court.
The other aspect on which I would speak on that matter is on the subject of corroboration. I do not think I can agree entirely with what my noble and learned friend Lord McCluskey has said. When I looked at what was before us on this subject of corroboration I noticed that part of what was said was that in civil actions in Scotland, where no defence is being lodged, corroboration is not necessary. It therefore seems to be quite a simple step to transfer that principle to this other type of civil action of divorce. It is not in fact widening the field in which the corroboration is not required but applying it to one other part of the civil scene.
I should like to ask the noble and learned Lord the Lord Advocate a number of questions about how the divorce procedure is going to work. He mentioned the making of rules in due course. Of our recommendations on divorce five were concerned with looking after the interests of children. We had the benefit among our membership of one of the senators of the College of Justice in Scotland, Lord Maxwell. He had had much experience in dealing with divorce actions. One of the things to which he particularly directed our attention was that in one of the Childrens Acts—and I am sorry but I do not now remember which one it was—an obligation was placed on judges in these matters to have particular regard to the interests of children. But Lord Maxwell pointed out to us that it was almost impossible for a judge to do much about this because there is no machinery at his disposal to get the information on which he could make a proper judgment. We therefore have a number of suggestions in the report about things which could be done, and should be done, in the interests of children. I should like to ask the noble and learned Lord the Lord Advocate if any of these recommendations will be followed up in the rules which are going to be made.
Finally on this matter of divorce, we attached considerable importance to privacy. We made three recommendations in that connection. Will the rules which are going to be made make provision of this kind? One of the arguments which was advanced against having divorce actions in the sheriff court was that the great majority of cases which were taken to the Court of Session were being taken away from where people live, and it was argued that is was a good thing not to have the dirty linen washed in public. We accepted that argument, although one point which was raised was that there appeared to be no special arrangements for Edinburgh's dirty linen to be washed other than in public in these matters. We arrived at the conclusion that it would be desirable, in undefended divorces certainly, that the proceedings should be in private, although the necessary arrangements should be made for reporting in the law journals for cases which might be of particular interest to the legal profession.
I welcome the fact that the Government are taking this step. My noble and learned friend referred to the fact that the Royal Commission had made 222 recommendations. I am tempted to enter into the debate on that but this is neither the time nor place to 853 do it. I am happy to say that of the 222 recommendations only 13 were the subject of notes of dissent and none of the lay members of the commission signed any of these notes of dissent. Five of the 15 notes were by one Edinburgh solicitor, two by one advocate, and the other eight were by a combination of the various legal members of the commission. We managed to unite in our recommendations what we believe to be very much the views of lay people in Scotland, and particularly those organisations which had an interest in the matter. I commend the first part of the Bill, and beg leave to be neutral on the remainder.
§ Lord McCluskey
My Lords, before my noble friend sits down, may I just ask him whether he could comment on one matter? He reminded us that the argument which he and his colleagues on the Royal Commission regarded as the most convincing was the better service argument. You would get better service by taking divorces to the sheriff court. But of course in those days, he will recall, the pursuer and his witnesses had to attend the Court of Session and give their evidence in court. Now that that system has been replaced with a system whereby the affidavits of the evidence are simply posted into the Court of Session, does he think that the better service argument has not perhaps lost some of its force?
§ Lord Hughes
I think it is correct to say that it has lost some if its force, my Lords. But if I were now talking as if the Royal Commission was still sitting, I would say that it still remains a sound principle that a whole loaf is better than half a loaf.
§ 5 p.m.
§ Lord Mackay of Clashfern
My Lords, I gather that the weight of opinion among those who have contributed to the debate is in favour of Clause I of the Bill, and for that I am grateful. In relation to the last question which the noble and learned Lord, Lord McCluskey, asked of his noble friend Lord Hughes, the affidavit procedure was operating in the Court of Session at the time the Royal Commission was sitting, so I think the question was not well based in fact. The Cowie procedure makes some difference, but so far, at any rate, the Cowie procedure is restricted in scope; and the cases in which service, in the sense in which Lord Hughes referred to it, would be important, would be the other cases. In our view, the reasoning which led the Royal Commission to think it was right that the sheriff courts should have jurisdiction in actions of divorce is sound reasoning, and that is the basic principle on which this part of the Bill rests.
The noble and learned Lord, Lord McCluskey, was inclined to doubt whether the Lord Advocate was capable of thinking up the Bill on his own. I can assure him that Part I of the Bill is the responsibility of the Lord Advocate, as having responsibility for the jurisdiction of the civil courts in Scotland and having responsibility in relation to the law of evidence. So far as the corroboration matter is concerned, my noble friend Lord Selkirk was somewhat concerned about that, and I, too, am concerned about it. That is why we have adopted a fairly cautious approach to the matter and would apply the relaxation to the areas in which it would seem appropriate; to start with, the same area which is appropriate for the Cowie type of divorce.
854 I come to the comment of the noble and learned Lord, Lord McCluskey, on our approach. He called this piecemeal and said we should wait until there was a tremendous reform of court jurisdiction in Scotland. I fear, with the noble and learned Lord, Lord Wilson of Langside, that we might have to wait some considerable time before we should get an agreed solution to that problem. Nor do I think it right to leave out of account the fact that during this Government's term of office there has been some work done in this area. In particular, the power of remit from the sheriff court to the Court of Session in cases which appear suitable to the Court of Session exists generally, and that, in my view, is a valuable step forward in an area which, as the noble Lord, Lord Hughes, mentioned, was one generally of concurrence. The purpose of the Bill on that aspect of the matter is not primarily to save money. It will certainly save money, we believe, but in our view it will give a better service to the people of Scotland who happen to become involved in this area of the law.
I come to the question of delays, which is a point raised by my noble friend Lord Selkirk. I understand that in consistorial cases in the Court of Session the present position is that proofs allowed in January are being assigned diets in June and July—that is, where there is oral proof—and, likewise, in ordinary actions they are currently being assigned in June and July for cases which appeared in the proof roll in October. In the sheriff courts the maximum delay period between pleading and trial diet in criminal cases is currently 20 weeks, although in some courts it is much shorter than that. In civil cases the maximum delay prior to a proof is also, I understand, about 20 weeks, although in Edinburgh for instance, it is only nine weeks and, in Glasgow, 12 weeks. I hope it is reasonable to believe that the sheriff courts can accommodate this work, particularly having regard to the reliefs from other work to which I referred.
The noble Lord, Lord Mishcon, mentioned as I sat down the question of conciliation, so I thought it might be right to add that a conciliation project is shortly to be established in Edinburgh, with some Government funding, to see whether conciliation can be built into the procedure, although it will depend for its success on it being of a voluntary character.
The purpose of Clause 3, as I sought to explain, is to put the responsibility where the noble and learned Lord, Lord McCluskey, recognised that it constitutionally properly belongs for regulating legal aid fees—with the Secretary of State for Scotland. He mentioned a number of areas of the law which required improvement, and I agree entirely that it is highly desirable to achieve improvements in those areas; but I do not believe that the creation of an institute of judicial administration would achieve those aims. These problems have been looked at by many bodies, and I believe it is in practical ways, by practical steps taken by people who know something about the business as practitioners, that improvements will arise.
That is one of the reasons why I took the initiative, referred to in answer to an earlier oral Question, of asking the fiscals to be prepared to meet the defence a good while before the trial starts so that the position can be resolved at a much earlier stage, thus avoiding 855 the necessity of witnesses turning up and not being required because of people pleading guilty at the last minute, and so on. I can therefore assure your Lordships that these matters are very much under our consideration and that we are doing all we possibly can to eliminate these difficulties.
I was asked what proportion of the legal aid fund is devoted to solicitors' waiting time. I do not think it is possible to give a figure for that—the accounts are not easily broken down in that way—but I should certainly like to see that amount reduced to an absolute minimum; as I said, the manner of achieving that is, in my view, by seeking to get practical improvements in the working of the courts.
The purpose of Clause 4 is to put the responsibility for fixing fees where it should be constitutionally. To achieve the level set out in the command paper to which I referred, real increases of about 5 per cent. per annum over the next three years are required, and this matter is presently the subject of review. That is the best information I can give at the moment.
§ Lord McCluskey
My Lords, I had in mind, when I made my observations on the subject, the debate which took place on 21st December 1982 in the First Scottish Standing Committee, where the subject was dealt with at columns 168 and 169–70. It is extremely difficult for me and others I have consulted to work the proposal out. It was suggested there that the ultimate policy was to recover the full cost of civil court services, excluding certain expenditure on judicial salaries and the like. I am not asking the Lord Advocate to deal in detail with that now, but I hope that in Committee we shall find some way, perhaps on the Question, Whether the clause shall stand part?, to clarify the intention of the Government in that regard.
§ Lord Mackay of Clashfern
I am happy to seek to answer any matters the noble and learned Lord puts at whatever time is convenient to him, my Lords. I have tried to set out the principles as referred to in the command paper, and the practical result of applying those principles. Obviously we can discuss the matter further in due course if he so wishes.
The noble and learned Lord, Lord McCluskey, concluded his remarks by asking whether the Government would accept any amendments to the Bill. The answer is that the Government will carefully consider the merits of any amendment which is proposed, and will take an attitude in the light of that. This is a difficult area, and I am the first to acknowledge that. We certainly do not come to this sort of work with a closed mind, and anyone who has suggestions for improving the Bill, certainly so far as we are concerned, will be listened to carefully, and a judgment will be come to in the light of the facts. I hope your Lordships will see fit to give this Bill a Second Reading.
The Earl of Selkirk
My Lords, before the noble and learned Lord sits down, may I ask him this? I mentioned the subject of records. I wonder whether he can give me any information on that.
§ Lord Mackay of Clashfern
My Lords, I apologise to my noble friend. I had that question in mind, but I 856 forgot it at the right time. The situation is that the Registrar-General keeps records, and intimation is made to him. It is expected that the divorce records of the sheriff courts will also be kept centrally.
§ Lord Hughes
My Lords, I do not think that the noble and learned Lord the Lord Advocate answered the questions that I put to him in relation to the rules. Can he do that now, or would he prefer to write to me on the matter?
§ Lord Mackay of Clashfern
My Lords, the situation is that it is for the sheriff courts' rules council to make the rules. I cannot usurp their function or forecast what they will do, but I feel sure that the matters to which the noble Lord referred will be very much before them, particularly those concerned with the interests of children and the desirability of children being protected against any damage which may result to them from the court procedure, and any question of privacy which is concerned in that.
§ Lord Hughes
My Lords, I thank the noble and learned Lord for that answer. In case it does not occur to them to look at these matters, is there any particular way in which their attention can be directed to the desirability of doing so? Can the noble and learned Lord do that, or can anyone else do it?
§ Lord Mackay of Clashfern
My Lords, I feel sure that the sheriff courts' rules council will have the proceedings of your Lordships' House on this Bill before them when they are considering these matters. To make sure, perhaps I should undertake to draw their attention to the noble Lord's remarks.
§ Lord Hughes
My Lords, I am grateful to the noble and learned Lord.
On Question, Bill read a second time, and committed to a Committee of the Whole House.