Divorce Jurisdiction, Court Fees and Legal Aid (Scotland) Bill

HL Deb 22 March 1983 vol 440 cc1022-73

4.4 p.m.

Lord Mackay of Clashfern

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

Moved, That the House do now resolve itself into Committee.—(Lord Mackay of Clashfern.)

On Question, Motion agreed to.

House in Committee accordingly.

[The BARONESS WOOTTON OF ABINGER in the Chair.]

Clause 1 [Sheriffs to have jurisdiction in respect of actions for divorce]:

Lord Wilson of Langside moved Amendment No. 1:

Leave out Clause 1 and insert the following new clause—

("Actions for divorce to be competent in sheriff court.

1. From and after the coming into force of these provisions actions of divorce shall be competent only in the sheriff court.")

The noble and learned Lord said: The clause as it stands confers jurisdiction in divorce on the sheriff court concurrent with the existing jurisdiction in such actions of the Court of Session. The amendment would have the effect of giving such jurisdiction exclusively to the sheriff court. I present this amendment in the meantime purely as a probing amendment because I think that there are two quite important matters upon which the Committee is entitled to enlightenment from the Government before approving the clause.

First, why did the Government reject the recommendation of the Royal Commission that divorce should fall within the privative jurisdiction of the sheriff court? I emphasise that I am not suggesting or even implying that the Government should have accepted that particular recommendation. A good deal was said on this matter in the other place and it was also touched upon by the noble and learned Lord on Second Reading. But I am bound to say that I did not find anything that was said in this context particularly impressive.

The Committee in considering this matter is entitled to know whether the decision to opt for concurrent jurisdiction derived to any extent from the representations which were made against the proposals from the Scottish Bench and Bar and from the Society of Solicitors in the Supreme Courts in Scotland, all of whom I understand were consulted on this proposal. The Committee is also entitled to know whether or not as regards the decision derived from such representations, the Government entertained any doubts as to the ability of the sheriff court to cope with this business. It is, of course, clear that certain difficulties will arise. Difficulties always arise in a changeover of this kind. But if they have no such doubts as to the ability of the sheriff court, as matters stand, to deal with the matter, then of course it is very difficult to understand why the Court of Session should have any locus in the matter at all. If of course they have any such doubts, then obviously a whole host of other questions would arise. Those are the first matters upon which the Committee is entitled to some enlightenment.

Secondly—and in my view this is relevant—how do the Government presently see the future of our, in some ways, slightly quaint and not very logical and not very rational system of concurrent jurisdiction under which litigants in divorce actions will now be able to choose to which tribunal they should go?—as they already can of course in the vast bulk of litigation where the jurisdiction between the sheriff court and the Court of Session is concurrent. They can choose whether to proceed in the supreme Scottish civil court—the Court of Session—sitting in Edinburgh where only counsel have a right of audience, or whether to proceed in their local court, the sheriff court, where parties may be represented either by counsel or by solicitors and where, if things are as they ought to be, the whole business will be a bit less expensive in time and in money and the quality of justice will be conducted in perhaps an ambience of slightly less formal dignity but will nevertheless match the needs of the situation.

I described this concurrent jurisdiction as being quaint and a little illogical and perhaps irrational. I did not mean to suggest that because of that we ought to destroy it. Life is full of paradoxes and one of them is that when things like this have become a part of the native traditions and sometimes work very well and do no harm, then there is no reason why they should be changed. This system was perhaps devised by men wiser than ourselves. It has worked well and is very much a part of a system in which there is a great national pride. Nevertheless, I think we should know the Government's attitude towards this system for the future and whether they envisage, as the Royal Commission suggested they should, a further committee of inquiry to look into the whole question of the jurisdiction and procedure of the sheriff' courts, or whether perhaps they envisage splitting the jurisdiction rather than leaving it concurrent.

These matters are important, and I think it is important that the Government should think about them because some of the defects from which the system presently suffers, of course, derive from the circumstance that on matters of this sort Governments were disinclined to look ahead and to probe into them and, for one reason or another, politicians were reluctant to press Governments to do just that. It is to seek the Government's views primarily on these two aspects that I put down this amendment. I beg to move.

Lord Hughes

I do not think that it would be improper for me to make a comment at this stage. At first glance it would seem that what the noble and learned Lord, Lord Wilson of Langside, has proposed is very much in line with the recommendations of the Royal Commission. In fact, it goes further, because the Royal Commission recommended that the sheriff court should be the only court of first instance in these matters. That was contained in our Recommendations Nos. 1 and 2. In Recommendation No. 2 on divorce we said that the sheriff court should have exclusive jurisdiction as a court of first instance. Then we made a third recommendation in which we said: A sheriff on cause shown by the parties or of his own accord should have power to remit divorce actions to the outer house of the Court of Session". I shall perhaps return to that on a later amendment which is to be moved by my noble and learned friend Lord McCluskey.

Although I chaired the Royal Commission, I am not a lawyer and I am not absolutely certain whether I am interpreting the amendment of the noble and learned Lord, Lord Wilson of Langside, properly. But if I am, then I fear that if the sheriff court is to be the only court, there would not be an opportunity for the sheriff to remit any matter to the Court of Session. That, I think, would be against the principles which the commission found almost unanimously.

I do not want to have to say this over and over again, but at this first opportunity I think I should emphasise that there were 15 members of the Royal Commission, 11 of whom were not legal people, but four of whom were. Only two of the 15—both of whom were legal people—had objections to any aspect of our recommendations on divorce. Therefore, I think it would be quite wrong if I did not say that in some of these matters it would be of great astonishment to my former colleagues on the Royal Commission if they found me, in this Committee, going against the recommendations to which I was a party. If I were to support this very simple amendment of the noble and learned Lord, Lord Wilson of Langside, I think that I would certainly be going against our Recommendation No. 3.

Lord Wilson of Langside

In order to avoid unnecessary discussion on the matter, perhaps I could make it clear that I am guilty of not having made myself clear either in the drafting of the amendment or in what I said. By the amendment I merely envisage that at first instance the sheriff court should have jurisdiction in divorce.

Lord Hughes

I am grateful to the noble and learned Lord for that explanation, but I still think that that is not what his amendment does.

Lord McCluskey

Perhaps I may address myself to the amendment as worded. At the moment I shall not take up your Lordships' time on the question of the concurrent jurisdiction of the Court of Session and the sheriff court, which is a point which I think we can discuss in relation to later amendments. I hope that the Government will not accept this particular amendment, as put forward by the noble and learned Lord, Lord Wilson of Langside. It enshrines a somewhat difficult proposition and one which I would find unacceptable; namely, that no action of divorce—however complicated the issues it raises, whatever the sums of money involved, whatever the wishes of the parties—should be allowed to proceed in the Court of Session.

In my view the Court of Session is rather better equipped than the sheriff court to decide very difficult questions of law. No one suggests that it is slow in dealing with divorces, and I do not think that the Government would want to interfere with the right of parties to choose to go to the Court of Session, if that is a choice which they want to exercise in favour of going to the Court of Session. If the real point lying behind it is that the Legal Aid Fund should not be required to subsidise those who want to choose the Court of Session, then I think that is much more easy to accept, and I think that that would be covered by Amendment No. 11, which stands in the name of the noble and learned Lord, Lord Wilson of Langside. I can express my views on that when we reach it.

There is one point—and it may be that this is not the appropriate time for the noble and learned Lord the Lord Advocate to deal with it—that I hope he will manage to deal with in the course of the debates. It is that one of the reasons why divorce is to be made competent in the sheriff court is in order to reduce the cost of divorce proceedings. That is a legitimate aim. But having regard to the figures on the cost of divorce, which were put before the House at Second Reading, which are fairly high for divorce in the Court of Session, my own inquiries lead me to believe that the cost of counsel in the Court of Session is very small indeed in relation to that figure of the order of £500.

I wonder just how much would be saved by the elimination of counsel from divorce cases, because the work which counsel does in the Court of Session will, in fact, have to be done by someone else in the sheriff court, and no doubt a proper charge will be allowable for that. So I am not at all clear that very much will be saved simply by taking counsel out of divorce cases. Of course, one would hope that there should be a saving by being able to cut out an Edinburgh correspondent for divorces that come from outside Edinburgh, but again one does not know how much that will be. I hope that the noble and learned Lord the Lord Advocate will take either this or a later opportunity to give us the answers to these questions. But, for the reasons that I have given, I would hope that the noble and learned Lord the Lord Advocate will resist this particular amendment.

Lord Ross of Marnock

Before my noble and learned friend sits down, I think I can agree with him in relation to undefended cases, and the simpler cases in respect of which counsel's fees would not be very great. However, let us take the more celebrated cases and the ones which he cited, which should go before the Court of Session. Is he suggesting with regard to those, which may raise difficult questions of law and so on, that the fees will be equally small?

Lord McCluskey

The answer to that is that if, in fact, you have a defended action which raises very difficult questions, then you will find that many solicitors will, in fact, want to instruct counsel even in the sheriff court to deal with those cases, and the fees chargeable by counsel for appearing in the sheriff court would be the same as or similar to those that they would charge in the Court of Session. Therefore, if you have difficult questions which warrant the employment of counsel, it seems to me that that employment has to be paid for, whether the action is conducted in the sheriff court or in the Court of Session.

Lord Mackay of Clashfern

Perhaps I could begin by acknowledging, as I hope I have done in the past, the work of the Royal Commission in this area presided over by the noble Lord, Lord Hughes. I think it would be right for me to say that, in putting forward this Bill, we have been very much indebted to them for the work that they have done, and we have tried to follow what they have suggested in so far as we discerned that it was necesary to do so to get the benefits that they had in mind. The recommendation, as the noble Lord, Lord Hughes, pointed out, was not a recommendation that the sheriff court should have exclusive jurisdiction at first instance, but included the power in certain cases for the sheriff to remit to the outer house of the Court of Session so that the outer house would deal with the matter as the court of first instance.

It is plain that the amendment of the noble and learned Lord, Lord Wilson of Langside, does not permit that, whatever be his intention. I think that the wording of the amendment does not permit that, but apart from that perhaps one could consider this matter as one of principle. As has been pointed out, on the basic areas on which they have jurisdiction, the Court of Session and the sheriff court in Scotland for many generations have had concurrent jurisdictions, so that there is nothing novel about that. The basic need that the Royal Commission saw was for parties to be able to have their divorces dealt with in a local sheriff court. It seems to us that that can be achieved by giving the sheriff court jurisdiction, and there is no need to cut out completely the jurisdiction of the Court of Session in order to achieve these aims. Then of course we have the power to remit from the sheriff court to the Court of Session in suitable cases, and no doubt we shall look at matters connected with that in more detail in relation to a later amendment.

Of course, it is obvious that if the Government consult after a Royal Commission report they take account of the views of the consultees, but if the suggestion is that our decision on this matter was unduly influenced by the views of the Scottish Bench, the Scottish Bar, or the SSC society I have to say no to that. We approached this matter trying to do what we thought was the right thing, and we felt that one could best achieve the results which the Royal Commission wanted by making the proposal which we have made without cutting out the Court of Session altogether.

We were not influenced by any feeling that the sheriff court could not handle the matters which they would have to handle, but we were aware of the feeling, which the Royal Commission shared—as the noble Lord, Lord Hughes, has explained—that there might be some cases of divorce which ought to be heard in the Court of Session, and we felt it right to leave to parties this choice. We saw no good reason why this particular choice should be cut out against the general background which I have described.

The situation so far as the sheriff court is concerned for the future was raised by the noble and learned Lord, Lord Wilson of Langside. He referred to the quaint situation, which is certainly a long-established situation, of both the sheriff court and the Court of Session having large areas of jurisdiction in common. We have sought as a Government to deal with that to some extent by the powers to remit from the sheriff court to the Court of Session which were conferred upon the sheriff court by Section 16 of the miscellaneous provisions Act 1980 putting a new power in Section 37 of the Sheriff Courts (Scotland) Act 1971. It seemed to us that this was the best way of arranging for some passage between the sheriff court and the Court of Session of some cases, and the same sort of provision is made in relation to divorce.

It was in the light of these considerations that the Government came to the conclusion which they did, and in my view it is a reasonable conclusion which seems to have commended itself generally to those who have commented on this Bill. Certainly I would wish to repudiate any idea that the Government were unduly influenced by the views of any particular party that they consulted. I hope that in the light of these explanations the noble and learned Lord will feel able to withdraw his amendment.

Lord Ross of Marnock

I am only a simple layman. I have heard my noble friend Lord Hughes in respect of the recommendation of the Royal Commission. I have heard the Lord Advocate, who is usually very plain and straightforward. Is he telling me that what the Government are doing is what the Royal Commission advised?

Lord Mackay of Clashfern

No, not exactly. What I am saying is that the benefits—

Lord Ross of Marnock

It is not a case of, "Not exactly". I can understand, "No"; and if it is, "No" I would be happy if the noble and learned Lord stopped at that.

Lord Mackay of Clashfern

Delighted as I always am to make the noble Lord happy—and I have learned that it is a wise thing to do if I possibly can—I think in fairness to myself I have to add the explanation that we came as near to what the Royal Commission proposed as we thought the circumstances justified. We sought to get all the benefits of which they spoke without any particular disadvantage, and of course as time goes on situations could change. The Royal Commission did not say in what stages, or in what way, their recommendations should be implemented. We are certainly not precluding for all time the possibility that matters could develop even closer to the Royal Commission's recommendation.

Lord Hughes

May I be made certain of what the noble and learned Lord has in mind? I think he and the noble and learned Lord, Lord McCluskey, used the words "the parties". Does this mean that in the ordinary course of events the sheriff court would be the one which was most likely to be used in divorce actions once this comes into operation, but that if both parties wished to to go to the Court of Session that could be done under the proposals of the Bill?

The Royal Commission put the onus on the sheriff. They said that the sheriff could remit a case to the Court of Session on cause shown. Presumably it might be that if both parties said to him, "We want it to go to the Court of Session", he would accept that as being sufficient cause, but as I understand it, and as we certainly meant it, it would only go in these cases if both parties asked. Is that what the Government's proposals will mean? To put it another way, one party cannot insist on it going to the Court of Session against the will of the other.

Lord Mackay of Clashfern

If the pursuer decides to raise the action in the Court of Session then the action is competent in the Court of Session, but I think the realities of the situation are that a pursuer would need to be persuaded that that was something in the pursuer's interest. It very much depends on the way in which the cost structure will develop as between the sheriff court and the Court of Session. The noble and learned Lord, Lord McCluskey, pointed out that counsel's fees in the simple action are a very small proportion of the total payments that are made in such an action at the present moment. But of course that may depend a bit on the nature of the action, as the noble Lord, Lord Ross of Marnock, said.

The situation, as I see it, is that it will very much depend on how these fee structures develop whether it will be in the interests of a person, say in Glasgow or Kilmarnock, going to the Court of Session in Edinburgh rather than their local sheriff court. It is certainly conceivable that there might be advantages for them in doing that. The choice will be the choice of the pursuer in the court to which the pursuer goes, and there is of course the possibility that if the pursuer goes to the sheriff court the sheriff may think it right to remit the case to the Court of Session.

Lord Ross of Marnock

Since the Lord Advocate has mentioned Kilmarnock, in which I once had a constituency interest, can he tell me what conceivable advantage there could be in someone bypassing the sheriff court, and the local solicitor employing an agent and also a counsel in Edinburgh? What could be the advantages? I am prepared to be persuaded.

Lord Mackay of Clashfern

The person in Kilmarnock, I am assuming, would go to his or her local solicitor, who, naturally—this is one's experience—would suggest the local sheriff court, unless there were some good reason that he saw for not doing that.

Lord Ross of Marnock

The noble and learned Lord was talking about the simple kind of matter to which my noble and learned friend Lord McCluskey had referred, cases where counsels' fees were not very great; indeed, he was talking about the cheapest possible form of divorce today. It is in that context that I want to know how there could be advantage, from the point of view of going to Edinburgh, in employing both another agent and counsel.

Lord Mackay of Clashfern

That is the question I was trying to answer. The solicitor in Kilmarnock would be unlikely to suggest going to the Court of Session unless he saw a special reason for doing so. Even in a simple case there might be a reason for doing so. For example, it could happen that at the particular time, work in Kilmarnock of other kinds was so great that one had to wait a long time, in which case the solicitor might, if his client was in a great hurry, suggest going to the Court of Session, where the procedure has become very streamlined. I could think of other examples but perhaps it is not worth wearying your Lordships with other possibilities.

Lord Wilson of Langside

I am grateful to the Lord Advocate for his explanation of the matters I raised. I will not delay the Committee further; we have already taken 26 minutes on this first amendment. I apologise again for the drafting of my amendment, which perhaps resulted in our discussion going wider than I had envisaged. But I was concerned, having read all the debates in the other place and listened carefully to what had been said here, in that the matters I raised had not been explained as fully as they should have been. The history of the concurrent jurisdiction arrangement derives largely from the 1907 Act. If one reads the report of the Royal Commission on the Court of Session in 1927 and the report of the Grant Committee in that context, one appreciates that there is an issue about which the Government should be thinking, and I was anxious to find out what the Government's thinking in this context was. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.33 p.m.

On Question, Whether Clause 1 shall stand part of the Bill?

Lord McCluskey

Everyone recognises that the effect of Clause 1 in giving jurisdiction to the sheriff court is to transfer much of the work from the Court of Session to the sheriff court. There are 10,000 to 11,000 divorces a year in the Court of Session and everyone envisages that the bulk of those cases will in future be entertained in the sheriff court, and it may be that the legal aid regulations will be of such a character that it will be difficult for people to go to the Court of Session with legal aid.

Accordingly, it is likely that about 10,000 divorces a year which are now heard in the Court of Session will no longer be heard there. The effect of that will be to lose income to the members of the Bar and to Edinburgh solicitors. That is a feature which is welcome to many, and it is not one of which one can complain. However, it undoubtedly has an effect on the whole question of the shared jursidiction of the two courts, a matter about which the noble Earl, Lord Selkirk, and the noble and learned Lord, Lord Wilson of Langside, expressed concern on Second Reading.

Unless there were to be some compensating transfer of jurisdiction in the other direction, the Court of Session would be likely to suffer from this loss of income. I calculate that about one-eighth of the income of the Bar will disappear as a result of the provisions in Clause 1. Is that a bad thing? No doubt some would say no. But it would be a bad thing if it fatally weakened or badly injured the Court of Session, which is uniquely able to deal with certain questions, and it would be a tragedy of no small proportions if the Court of Session were badly damaged by this substantial transfer of work and loss of income to those who work within the Court of Session.

The sheriff court system is simply not capable, in my view, of performing the work done by the Court of Session in a great many fields. No one who has practised in both courts could doubt that proposition. Accordingly, if this measure damages the Court of Session, it must be greeted with a considerable degree of reluctance. The Lord Advocate and Lord Wilson on Second Reading both said that the question of jurisdiction between the two courts deserved examination but that that would take a long time. I agree that it would, but do the Government intend to embark on that exercise? Does the Lord Advocate hold out any hope that this vitally important question of the concurrent or overlapping jurisdiction—and the other question of making the best use of the unique facilities of the Court of Session—will be looked at in the future by the Government? Are they to be studied and is the Lord Advocate minded that this question should be considered, for example, by the Scottish Law Commission?

Lord Hughes

Further to the remarks of my noble and learned friend Lord McCluskey, I would draw the Committee's attention to another recommendation of the Royal Commission which appears in our Chapter 14, where we said on the subject of civil procedure and jurisdiction: A committee should be appointed by the Secretary of State for Scotland, after consultation with the Lord President of the Court of Session, to review the structures, jurisdiction and procedures of the civil courts of Scotland". We commented in the body of our report on the difficulties of concurrent jurisdiction, and it was obvious from what we heard in evidence that it was not a planned thing; it was just the way it happened that changes took place. There is, therefore, no consistent pattern of division between the courts.

In the course of receiving evidence, suggestions were made by one Edinburgh Member of Parliament, now a Member of Her Majesty's Government, for certain reallocations in respect of civil procedures as between the two courts. We did not, however, feel that our remit was such that we could go into that in any detail and make recommendations, other than the fact that the matter was of such a complex nature that it should be looked into. Looking at our recommendations, we might have made them better—in view of what has been said today and at other stage of the Bill—if we had added the word "urgently" to our recommendation for the appointment. It is obvious that it is not a matter which could be decided in weeks or months; It would take a long time to produce something really workable. I hope the Lord Advocate may be able to give some succour to my noble and learned friend Lord McCluskey by saying that the Government intend to take action on the Commission's recommendation No. 14(1).

The Earl of Selkirk

One has the general impression from this part of the Bill that the object is to save Government money. Is that really the object, or is it to obtain justice as the parties want? Bearing that in mind, the question is whether the legal aid system will be so adjusted that it will be impossible to employ counsel either in the sheriff court or, if permission is given, in the Court of Session. I have an amendment down on that very point. Is that the way it will be organised? Very substantial economic problems arise from the situation, and they affect what I believe we all want to see; namely, a strong Court of Session, supported by a strong Bar. If that is not the case, it will cut fairly deeply into part of the whole system of justice in Scotland. I wonder whether the noble and learned Lord can say whether legal aid is to be so framed that counsel cannot be engaged.

Lord Ross of Marnock

I should apologise to the noble and learned Lord the Lord Advocate and to your Lordships for the fact that I was not present at Second Reading. For once in a while I was ill, and I think that that was about the first time that I missed a Scottish Bill in the four years that I have been a Member of your Lordships' House. I should like to say that I approve of Clause 1. I think that it is a step in the right direction—a sensible step. What many people seem to have failed to realise is the change in public attitude to divorce and, secondly, the change being reflected in the law relating to divorce. I do not necessarily approve of that. I wish that without making any change in the attitude to divorce, we could take some action that would mean that people would enter upon marriage with a little more thought and would not at the first quarrel turn to an easy divorce.

However, we must take things as they are, and the big change that is taking place means that there are 10,000 divorces a year in Scotland of all places! There is also less complexity than there used to be in the law of divorce. There may be the odd case in which there is some complexity, but in general the whole process of law has been changed so as to make divorce much simpler. I see no reason at all why every divorce action should go to the Court of Session. The noble Earl, Lord Selkirk, spoke about the sheriff court. Counsel is not needed in the sheriff court, but there must be counsel in the Court of Session, no matter how simple the case, and even if it is undefended. If all divorce actions must go to the Court of Session, where there must be counsel and an agent, the actions are bound to be more expensive, as indeed they are.

I hope that the noble and learned Lord will look again at the question that was intended to be raised by the noble and learned Lord, Lord Wilson of Langside—it is a pity that the wording was not as clear as it might have been—because I would tend to support him. I understand that the rules are to be laid down by the Government, or the courts—I do not know which—and that it will be free to the pursuer to opt for the Court of Session. That might be most unfair to the defendant in a particular case, depending on what agreement has been reached in relation to costs and the rest.

We see here a reflection of the whole change in the attitude to the law. It is not a question of being unfair to Scottish law, or to Scottish lawyers or advocates. What we want is fairness to the Scottish people. Why, if there is no difficulty in relation to the two parties concerned, should someone living in Kilmarnock who wants a marriage dissolved have to go to Edinburgh when the action could be heard in Kilmarnock?

Somebody spoke about the question of privacy. I do not see where privacy arises. In Scotland we used to be very concerned about the publicity given to marriage. Even today where there is to be a marriage in a registry office a notice has to be placed outside, and people have to be informed. Forthcoming marriages used to be declared in our churches, so that anyone with an objection, anyone who knew of a bar or an impediment to a particular marriage, could object. Parishes were regarded as spheres of community knowledge, and it was right that it should be known if people proposed to get married. I do not see any objection to divorce being done locally, so that people should know about it. I think that from the point of view of the community it is probably essential that divorces should take place locally, rather than the cases going to Edinburgh. It has been suggested that a case should go to Edinburgh, so that local people will not know about it, but I think that it should be known about locally.

I approve of Clause 1, so far as it goes. I should have liked to see more clearly stated whether there is any limitation and, if so, what the limitation is in relation to the jurisdiction involving either the sheriff court or the Court of Session. In the last parliamentary Session we spent a lot of time—and I am glad to see the noble Lord, Lord Stodart of Leaston, in his place—dealing with a special Bill on concurrency of powers relating to local government, in order to try to get rid of the difficulties and unfairnesses which would arise. But here we are applauding concurrency. I do not think that concurrency is necessarily a good thing. The position should be clear cut in relation to the powers, and to my mind it should be left to the court, rather than to an individual pursuer, to determine whether an action should go to the Court of Session or to the sheriff.

Lord Mackay of Clashfern

First, I shold like to deal with the question which my noble friend Lord Selkirk raised. The idea that the primary purpose of the clause is to save money is not an idea that I at all share. The primary purpose of the clause is to give effect to the need, which the Royal Commission saw, for sheriff courts to have jurisdiction in divorce cases, and in that connection the considerations to which the noble Lord, Lord Ross of Marnock, has just adverted are very strong. It seems right—not altogether from a point of money—that the sheriff court should have jurisdiction to deal with divorce cases, and that is the reason why we have proposed the clause. I should be the last to have any part in any change which damaged the institution of marriage, or its permanency. I do not think that the clause does that. It merely provides a procedure for dealing with the dovorce law as it is. There is no change proposed in the substantive law of divorce.

With regard to the jurisdiction of the various courts, as the noble Lord, Lord Hughes, has reminded us, in Chapter 14 the Royal Commission suggested the appointment of a committee to look into the matter. I think that it would be fair to say that there were a considerable number of suggestions for committees and the like, and I can certainly see that there is scope for some inquiry into this question. However, matters have to take priority according to the way that one sees priorities overall.

In 1980 what was in my view a very important step was taken to deal with the question by providing for the possibility of remit from the sheriff court to the Court of Session, and I believe that it would be very useful to see how that works. I say that because one of the great difficulties in sorting out an age-old concurrence—the noble Lord referred to the difficulty in connection with the 1973 Act in regard to local government, but here we have a very much longer concurrence—is to set out criteria by which what has been concurrent in the past shall be divided out: it is extremely difficult. This method of judging particular cases and allowing of a remit is a way of dealing with the matter case by case, and, as experience of it is gained, it may be possible to develop more objective criteria. But we believe that, at least for the present, a very considerable step forward has been taken by allowing this method. It has not yet been much used, but I hope that, as the situation develops, it may be seen to be more useful. I trust that your Lordships' Committee will allow Clause 1 to stand part of the Bill.

Clause 1 agreed to.

4.50 p.m.

Lord McCluskey moved Amendment No. 2:

After Clause 1, insert the following new clause:

("Divorce: List of persons to report to court.

. In section 11 of the Matrimonial Proceedings (Children) Act 1958, after subsection (1A) there shall be inserted— (1B) It shall be lawful for the Lords of Council and Session from time to time to prepare a list of persons suitable to be appointed by any court before which an action for divorce is pending to report to the court on any matter which is or may be relevant to any decision which the court is required to make, or is considering making, and which would have the effect of regulating, whether ad interim or otherwise, any matter which in that action could be made the subject of an order, including an order for interdict or interim interdict, under section 5 of the Divorce (Scotland) Act 1976, section 9 of the Conjugal Rights (Scotland) Amendment Act 1861, or Part II of the Matrimonial Proceedings (Children) Act 1958, and the court may appoint any person whose name appears on such list to report to the court upon any such matter.".")

The noble and learned Lord said: This amendment deals with a very small and special point. Clause 1, as we have already recognised, will effectively transfer a lot of the business of the Court of Session to the sheriff court. That will have the effect to which I have referred of a loss of work and a loss of income to advocates. That in itself would not matter provided, as I said, that the Court of Session is not seriously damaged by that loss. The type of work to be lost, however, includes not only the drafting of the necessary summons or minutes, affidavits and so on, or revising of affidavits and the work involved in the incidental procedure which takes place in all these cases, but a third category of work that I want to mention particularly, and that is the preparation of reports for the judges regarding custody, interim aliment, and access to children. This amendment is concerned purely with that particular matter. I put down a Written Question and the noble and learned Lord the Lord Advocate answered it on 17th February and disclosed that during 1982 there were 397 occasions when a judge called for a report in relation to the care and upbringing of a child who was the child of parties who were involved in an action of divorce. Out of the 397 cases 174 were cases in which members of the Faculty of Advocates were appointed by the court to make this report.

The great bulk of these reports were then prepared by women members of the Faculty of Advocates who were appointed for that purpose by the particular judge. I have always regretted the fact that women who come to the Bar in Scotland—and I suspect it is true in England as well—have great difficulty in getting work to enable them to survive at the Bar for long enough to make their mark. There is a serious prejudice: one cannot put one's finger on it very readily, but it is there. This particular kind of work, reporting on these matters, while not ideal, nonetheless enables some of the women members to survive long enough to prove their worth in the more ordinary work.

Secondly, quite apart from that factor, there must be cases in which it is of great value to the court to know that it can appoint as a reporter on a matter of this kind somebody who is totally independent, as a member of the Bar can be and perhaps a local solicitor cannot. A member of the Bar is geographically independent and professionally independent. In my view, it would encourage the appointment of such people in suitable cases if the Lord President and his colleagues were to prepare a list of persons whom they deemed to be suitable to do this kind of work. In cases, whether they were Court of Session cases or sheriff court cases, where the judge in question wanted someone whose independence was absolutely guaranteed or wanted someone who was making not purely a factual inquiry, which can be made by a social worker, but an inquiry which involves real judgment as to disputes of fact between the parties, a person whose name had been approved by the Lord President could be selected from the list.

Under my amendment that list would not be exclusive. In other words, the judge would not have to take a person from that list but the list would be there and it would encourage the appointment of people. It would draw the attention of sheriffs and judges of the Court of Session in divorce cases to the availability of people on the list to do the rather special reports where it was decided that some degree of independence, including geographical independence, was desired. That is all I seek to achieve in this amendment. The clause as drafted is not, as it were, mandatory; it does not require the sheriff or the judge to appoint a particular person; he can go outside the list. I have no doubt that the drafting is imperfect but I wonder whether the Government are agreeable to the principle. I spoke to the Lord President of the Court of Session and he gave me to understand—although at that time I had not drafted the particular amendment—that he would not be averse to providing such a list to be available to judges to consider selecting a person for this kind of work. I wonder whether the Government can give any advice as to whether or not that principle is acceptable. I beg to move.

Lord Mackay of Clashfern

There are a number of matters about this clause which I could deal with. However, I wonder whether I can make a suggestion to the noble and learned Lord regarding the way in which this matter might be dealt with. I suggest that it might be dealt with by my undertaking to invite the Faculty of Advocates and the Law Society of Scotland to prepare a list of those who would be willing to undertake this work. I would undertake that if such a list was provided, the Scottish Courts Administration would circulate the list to sheriff clerks for the information of sheriffs and the judges of the Court of Session. These lists would of course require to be updated from time to time. If that meets the point that the noble and learned Lord is making to his satisfaction then perhaps we need not trouble about the detail of the particular amendment.

Lord Hughes

I am not certain whether what has been suggested will be suitable to the noble and learned Lord, Lord McCluskey; but I say right away that it would not be suitable to me. In the first instance, one aspect of the matter which very much concerned the Royal Commission was the interest of children. May I revert to what was said by the noble Earl, Lord Selkirk, regarding what were the Government's objectives in bringing Clause 1 forward? Was it just to save money? In the Royal Commission's report we pointed out that if this were done there would be a considerable amount of money saved. But we regarded that as a bonus. Our first consideration was applying the law in the best possible way in the interests of those who came before the court. As I mentioned at Second Reading, we were much influenced by the advice which was given to us by one of Her Majesty's judges in Scotland who had the experience of administering divorce law in the Court of Session. He found that the arrangements for looking after the interests of children were so defective that in many cases, because of the lack of machinery, he could not be satisfied that at the end of the day he had been able to do the best that was possible. He did the best that he could see. No judge could do more than that.

In one of our recommendations we said that in every divorce action, defended as well as undefended, where children under the age of 16 were involved, the case should be referred by the court to the appropriate reporter to the children's panel for special reports on custody arrangements. I appreciate that that is only one aspect of the matters to which my noble and learned friend's amendment could refer. But one aspect I dislike intensely. In the first instance, he did not exclude social workers, but he said that there were matters on which social workers were not necessarily the best judges. I accept that there must be cases like that. I would put the other side of the coin and say that there will be quite a number of matters where no advocate or solicitor is necessarily the best judge. I do not object to lists being prepared, but those on them should not be exclusively legal people. I should certainly want to see some advantage being taken of the recommendations regarding the reporters to children's panels.

The children's panels are one aspect of law in which Scotland is leading the world, as my noble friend Lord Ross of Marnock has found. People are coming from all over the world to see the way in which this particular system is operated. I happen to be one of the Members of this House who is a representative to the Council of Europe. A former Member of the present Government, Sir Russell Fairgrieve, is a substitute member there and he has recently raised in the Council of Europe the question of the children's panel system in Scotland. Information should be given so that the other 20 countries of the Council of Europe see the advantages of this type of machinery.

It was because from the evidence we were so impressed by the way in which the courts could be helped by the children's panel that we made that recommendation. I think it would be quite wrong if I let the matter rest and only advocates and solicitors were going to be involved. I would not regard this as being put in, and I do not think it is being put in, as a substitute form of employment for legal people who might otherwise be displaced. I think it is quite evident from what my noble and learned friend said that that was not what he had in mind; but it is the sort of conclusion which the outside public could perhaps jump to. If the list is sufficiently wide, then I think it could serve a very useful purpose.

Lord Drumalbyn

Before my noble and learned friend replies, may I say that I find myself in great sympathy with what the noble Lord, Lord Hughes, has said. He said specifically that this was just one of the matters that would have to be considered. Would not another matter be the consideration of these people on the list, if I may put it that way, so far as conciliation is concerned? It might also be a useful role for them to play and of course this would no doubt add to the costs. But if we are seeking justice and what one might almost call social justice and also seeking to maintain—I was going to say the sanctity of marriage, this would be an important aspect of what those on the list might be asked to do, would it not?

Lord McCluskey

I wonder if I may just come back to say that no doubt it is my fault for not making the matter plainer, but I was trying to be brief. I agree with everything that my noble friend Lord Hughes has said in substance. I am not suggesting that a list should be drawn up and only those on the list should be appointed. I am not suggesting that, and in fact even at the present time in the Court of Session where the judges may appoint any member of the Bar or anybody else, the majority of those who are appointed are not members of the Bar. I envisage a special kind of case where one is not simply looking at what one might call the facts—because the facts are sometimes rather complicated and difficult—but at questions of judgment where the parties may be in conflict about why the marriage broke up, how the children of the marriage were treated and so on. That is the kind of case which someone of a more judicial temperament is better able to resolve, possibly, than a social worker who has other skills and other experience. I only wanted to make it possible for the courts to appoint people when in effect they want that kind of judgment upon disputed questions of fact.

The other point is that the question I asked of the Lord Advocate in writing last month related to the regulation of matters ad interim. That simply means that while matters are before the court, and before the court makes the final decision regarding custody of the children, what the amount of alimony is to be or what access is to be allowed to the children by one party or the other—while matters are at that stage and not finally regulated, the court often has to deal with extremely anxious, difficult and painful questions as to where the children will be during the Christmas holidays and which parent the children will live with. That is the kind of question on which the court has sought the advice of people who are solicitors or social workers and in some cases advocates, who should make an inquiry and offer a judgment, which the court may or may not choose to accept.

I merely want that situation to be continued. I do not want to say a word against social workers. I should like to think that I give as much support to the children's panels as even my noble friend Lord Hughes. I think that is a marvellous system and that other countries ought to be copying it; but they are already heavily overburdened and whether they are competent to make judgments when the facts are in dispute regarding the kinds of matters that come before the court, I am not so certain. I simply want to make it possible for persons of independent standing to be appointed by the court. That is the sole purpose and, to answer the question of the noble and learned Lord the Lord Advocate, I should be very happy if he were to proceed along the lines that he indicated, which are not contrary to what the noble Lord, Lord Hughes, has suggested.

Lord Mackay of Clashfern

I want to make it clear that I understood the noble and learned Lord, Lord McCluskey, to be dealing only with legally-qualified people so far as this list is concerned, because he is suggesting it is the court which puts the list together. It has been said, and certainly I agree, that the majority of the reports that are obtained are obtained from social workers. I would expect that to continue. In view of what the noble Lord, Lord Hughes, has said, perhaps I should remind your Lordships that the Government have set up a detailed study into this matter. The Central Research Unit of the Scottish Office is undertaking a research project which deals with the exercise by the court of their functions in relation to the welfare and custody of children in divorce actions.

The aims of this research are threefold. They are, first, to establish factual information on the way in which the court looks after the welfare of children involved in divorce actions; secondly, to identify the contents of reports called for by the court on children involved in divorce actions and the way in which the information is presented; and, thirdly, to examine the documented circumstances of cases where reports were called for by the court and to identify cases where additional information might have been helpful. These are the sorts of case to which the noble Lord, Lord Hughes, referred. I hope that this research will enable us to develop along the lines which were concerning the Royal Commission, but this particular list we are talking of this afternoon would make it clear that it was not being suggested that these were the only people who could be appointed. If particular skills were being looked for, these particular named persons would be available to undertake that work.

Lord Ross of Marnock

Am I to understand that the substance of what my noble and learned friend Lord McCluskey has said is being accepted by the Government and, instead of being done by statute, it is going to be done under existing powers by the Scottish courts administration? They are going to do it?

Lord Mackay of Clashfern

The Lords of Council and Session will not be involved in approving any particular list of names of people available, but those names will be circulated to the sheriffs and judges by the Scottish Courts Administration. They would be receiving these lists from the Scottish Faculty of Advocates and the Law Society of Scotland.

Lord Ross of Marnock

The point I am seeking to make is that Parliament would know nothing more about it. That regulation does not require to come to Parliament at all. I think Parliament likes to know exactly what power it is giving to courts and to administrations. It may well be they already have this power and we are, as it were, remoulding or formalising it in a particular way at the will of Parliament as a result of what is being suggested. But thereafter would Parliament see this new regulation?

Lord Mackay of Clashfern

It is not really a regulation; it is just a list of people who are willing to do the work. If Parliament wants to see the list there is absolutely no reason in the world why a list should not be put into the Libraries of both Houses, if that was wanted. It is just a list of names of people who are willing to undertake this work, provided by the bodies I have mentioned. There is no reason why it should not be available to anybody who wants to see it.

Lord Ross of Marnock

I think what Parliament would like to know is not only the names of the people but the actual nature of the work they are doing.

Lord McCluskey

I am sorry the noble Lord, Lord Ross, is puzzled by what the noble and learned Lord the Lord Advocate has mentioned. All that I was after—and I understand that the Lord Advocate is offering no more—is that in cases where a judge, whether he be a judge of the Court of Session or of the sheriff court, feels that questions of custody, access and so on, cannot properly be investigated by a social worker or someone else that he knows and he wants to go to an independent person to get a judgment which will assist him in making up his own mind, there will be available to him a list of persons. That is all.

The sheriff does not have to ask his clerk: "Who shall we get to do this because the case is too notorious and it cannot be a local person, and we do not want a social worker because the character of the case to be investigated is one which requires skills which that social worker does not possess? Who shall we go to?" He simply goes to the list, if that is the kind of person he wants. He is not obliged to take anyone from the list but the list would carry some authority because the list will have been drawn up by responsible people such as the noble and learned Lord the Lord Advocate mentioned. That is the sole purpose of it. I am perfectly happy with what has been said by the noble and learned Lord, the Lord Advocate, and I am sorry if what I have said has caused some confusion among those on the Benches beside me. But I beg leave to withdraw—

Lord Hughes

Before my noble and learned friend withdraws the amendment, I rather take it from what he said—and I hope that I am not taking more than he meant—that the normal procedure would be that the court would ask for the social worker. But, if they thought it was a case where the social worker was not going to be the best person, or the best qualified person, then the court would proceed to this list of other qualified people. If that is what he is saying, it is a certain source of consolation to me. If it is not, then I am afraid that I should like to come back to this at a later stage.

Lord McCluskey

That is exactly what I am saying. I am saying no more than that. It is simply that, when a judge wants to know "Who can I get to do this?" and he is looking for a lawyer, he goes to a list of names and says, "I can appoint that person." But if a sheriff—and I suppose that this will be true in five cases out of six—wants a local solicitor or, more likely, the social work department to look into the circumstances, he will do what the Court of Session judges now do in the majority of cases and appoint someone from the social work department. I can give my noble friend Lord Hughes the assurance that he seeks. I beg leave to withdraw the amendment.

Lord Fraser of Tullybelton

I wonder whether I may give my support to the proposal which has been made by the noble and learned Lord, Lord McCluskey, and, I gather, agreed to by the noble and learned Lord, the Lord Advocate. I am probably the only person in the Chamber who has been in the position of a judge wanting advice from a reporter, or some such person, in dealing with cases of children. As the noble and learned Lord, Lord McCluskey said, they are often quite urgent with the school holidays coming up and so on, and it is very useful to know to whom you can go. In my day, you asked your clerk and, if he happened to see a young member of the Bar at the back of the Court who was not employed, he would call "Mister So-and-So" or, more likely, "Miss So-and-So". That is all right, but it is not a very satisfactory system.

As I understand the proposal, it is simply to regularise the system by having a list of people properly proposed by the suitable bodies, to whom a judge could look when he wanted a report of this sort, but it would not exclude resort to social workers in suitable cases. If I may respectfully say so, it seems to me an extremely reasonable and proper proposal, which would not need any regulation or change of law. It is simply a rather more formal way of doing what is done at present in perhaps too informal a way.

Lord McCluskey

I am indebted to the noble and learned Lord, Lord Fraser, and I make my third and, I hope, my final attempt to withdraw this amendment.

Amendment, by leave, withdrawn.

5.13 p.m.

Lord McCluskey moved Amendment No. 3:

After Clause I, insert the following new clause:

("Transfer of actions from sheriff court to Court of Session.

.—(1) In an action to which this section applies the defender or respondent may, by motion entrolled at any time between the service of the initial writ or petition and the eighth day after the closing of the record, request the sheriff to transfer the action to the Court of Session for all further procedure, and the sheriff shall, if the motion be unopposed, and may, if it be opposed, transfer the action to the Court of Session by causing all papers lodged in the sheriff court in such action to be transmitted to the Principal Clerk of Session, and the Court of Session shall thereafter entertain such action as if it had been raised in the Court of Session.

(2) In considering whether or not to exercise his discretion to transfer an action to the Court of Session the sheriff shall have regard to—

1. (a) the value of the cause,
2. (b) the complexity of the questions apparently at issue in the proceedings,
3. (c) the possibility that the result of the action may in law or in fact affect the rights and obligations of persons other than parties to the action,
4. (d) the fact that the action appears to raise questions which have been, or are, similar to questions which have been decided in different ways by different Sheriffs,
5. (e) the fact that the case appears to raise difficult questions of law or of mixed fact and law, and
6. (f) any other material consideration.

(3) If the Sheriff refuses such motion the defenders or respondents may enrol the same motion for determination by a single judge of the Court of Session by such summary procedure as is prescribed by Act of Sederunt, and the judge of the Court of Session may grant the motion and cause the action to be transferred to the Court of Session which shall thereafter entertain such action as if it had been raised in the Court of Session.

(4) This section applies to such class or classes of action, of whatever character, as the Lord Advocate may by order prescribe.

(5) An order under subsection (4) above shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.").

The noble and learned Lord said: I shall deal with this amendment very shortly, because it has been pointed out to me by the House authorities that it may be irrelevant to the Bill. Of course, I was conscious of that when I drafted it, and that is why I put down Amendments Nos. 16 and 20 to alter both the short and long Titles to the Bill, so as to make it relevant. If those amendments were agreed to by your Lordships, then I think that this amendment would become relevant.

I put it down simply to draw specific attention to the fact—and I have spoken about this before—that the Bill enlarges the jurisdiction of the sheriff court and transfers work. We have spoken on a number of occasions, including today, about the problem of distributing the work between the two sets of courts. No doubt the most important considerations are the expense to the public and the wishes of the public, but they also include the character of the cause which is to be litigated.

At the present time, the position is this—and my noble friend Lord Ross of Marnock took this from the noble and learned Lord the Lord Advocate earlier. It is the pursuer, and the pursuer alone, who chooses which court the action shall be raised in, subject to the general law about exclusive jurisdication in one or two types of case. The pursuer alone chooses the court which the action shall be raised in, and until the amendment was made in 1980, to which I shall refer in a moment, the judges had very little control over the kind of cases that came before them.

A judge at the Court of Session cannot say, when he first sees a case appearing on his roll, "This case is very trivial; it should not be dealt with in this court at this expense". He cannot send it away. Equally, a sheriff having a case before him ,cannot very well say, "This action ought really to have been raised in the Court of Session". So what I seek to do by this amendment is to give the defender a say in matters, so that the defender would be able, in effect, to ask the sheriff to transfer a case to the Court of Session. He would have to have regard to the matters which I list in subsection (2), but the sheriff could then transfer the case. If the sheriff declined to do so, then the defender could make the same request to a judge of the Court of Session.

The noble and learned Lord the Lord Advocate has drawn our attention to the amendment which was made by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980, which by Section 16 put a new subsection into Section 37 of the Sheriff Courts (Scotland) Act 1971, which provides that a sheriff may, on the motion of any of the parties to the cause, if he is of the opinion that the importance or difficulty of the cause make it appropriate to do so, remit the cause to the Court of Session". Accordingly, my amendment goes a little further than that, but perhaps not very much further.

The position is—and I think that the noble and learned Lord the Lord Advocate will be able to confirm this—that very little use has been made of the amendment enacted in 1980. I regret that, and I hope that by raising this matter in this form and by the speech which the noble and learned Lord the Lord Advocate will no doubt make, referring to the amendment made in 1980, attention will be drawn to that provision and sheriffs will be encouraged to use it.

The other point is that if the defender in a sheriff court action asks the sheriff to transfer the action to the Court of Session and the sheriff declines to do so, then the defender can appeal to the Court of Session. But that is an elaborate appeal, as I understand it, to the inner house of the Court of Session to be determined by three judges, and it seems to me to be a mightily over-heavy piece of machinery to be used for that purpose. One advantage of my scheme is that it would simply be done by enrolling a motion to be heard by one judge of the Court of Session, and, accordingly, the matter could be simplified.

So my primary intentions are, first, to draw attention to the facility which exists, but which has been neglected and hardly used hitherto; and, secondly, to invite the Government to consider whether or not they might make it more easy for this matter to be dealt with on appeal in a very summary fashion, instead of by the elaborate procedure of appeal to the Court of Session which exists under the 1980 Act. I beg to move.

Lord Wilson of Langside

I assume that the noble and learned Lord will not press this amendment and that, in any event, the Government would not accept it if it were pressed. It would be a most inappropriate provision, which would increase the pitfalls that beset litigants faced with the misfortune of having to go to law—because going to law is a misfortune. But just as going to war is a misfortune, it is sometimes an unavoidable one. I should have thought that the present provision, to which the noble and learned Lord referred, adequately meets the needs of the situation. This proposal would increase the difficulty for pursuers, particularly—and I am a little surprised that it came from the Front Bench of the Labour Party—if powerful defenders want the process in the sheriff court, which is the cheaper and, usually, the quicker court, to be transferred to another court. I should have thought that that was quite inappropriate.

Lord Mackay of Clashfern

I am very happy to draw attention to the amendment which was made in 1980 to Section 37 of the Sheriff Courts (Scotland) Act 1971, which permits the parties to move the sheriff, or the sheriff of his own accord to decide what should happen in relation to a case of this sort. In any ordinary case, Section 37 allows a sheriff to remit to the Court of Session on the motion of any party to the cause if he is of the opinion that the issues raised are of sufficient importance and difficulty to make it appropriate to do so. As the noble and learned Lord has said, his decision on a motion of this kind may be appealed to the Court of Session.

A sheriff can also remit of his own accord in any action in relation to the custody or adoption of a child. Paragraph 12 of Schedule 1 to the Bill enables him to do so in relation to divorce actions also. So the basic matter to which the noble and learned Lord has referred is covered by a provision which is already in existence. So far as the procedure on appeal to the Court of Session is concerned, the noble and learned Lord is suggesting that it might be simplified. That matter would be within the power of the Court of Session, if they wished to do so. I will certainly draw the attention of the Lord President to what the noble and learned Lord has said so that the matter can be further considered.

Lord McCluskey

I do not want to press the amendment. I am happy to accept what the Lord Advocate has said: that he will take the matter of appeal a little further. So far as the noble and learned Lord, Lord Wilson of Langside, is concerned, if he looks at the amendment contained in the 1980 Act he will find that the great substance of my amendment is covered by it. It has not been very much used, but in cases of the kind to which I refer in subsection (2) of the proposed new clause—for example, cases where there have been different decisions on similar questions by different sheriffs—it is desirable to have any particular case referred to the Court of Session for a more authoritative decision, otherwise in the same type of case there will be one result in Kilmarnock and a different result in Airdrie. It is for these reasons that I wanted to draw attention to the existing provision and to the more summary procedure which might be introduced. I am happy that the latter part will be dealt with. I hope that by moving the amendment I shall have drawn the attention of sheriffs and practitioners to the existence of an amendment which went through in 1980 but which, as I say, has been much under-used. In the circumstances, I beg your Lordships' leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 [Rule requiring corroboration not to apply in certain undefended actions for divorce]:

5.24 p.m.

Lord McCluskey moved Amendment No. 4:

Page 2, line 1, leave out from beginning to ("the") in line 5 and insert ("In any action to which this section applies").

The noble and learned Lord said: I beg to move Amendment No. 4. At the same time perhaps I may discuss Amendment No. 5. Again I shall deal shortly with this amendment because it is purely a drafting matter. If noble Lords have a copy of the Bill and look at Clause 2(1), they will see that it begins with these five lines: Any rule of law whereby in any proceedings evidence tending to establish any fact, unless it is corroborated by other evidence, is not to be taken as sufficient proof of that fact shall cease to have effect in relation to any action to which this section applies, and, accordingly, in any such action". All those words are, in my view, quite unnecessary. They are all contained in the last seven words of the same subsection: notwithstanding that the evidence is not corroborated".

It seems to me, as a matter of simplicity and brevity, that one does not need most of the first five lines. I have therefore invited the Government to consider, in Amendments Nos. 4 and 5, two ways whereby the clause might be simplified. I have no doubt that the Lord Advocate will tell the Committee that the language here is taken from Section 9 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968. That is indeed where the language comes from. In my view, however, that is not a very good reason for repeating the language. As noble Lords will see, in the Scottish Law Commission Memorandum No. 46 they say that there has been some judicial disagreement on the effect of Section 9 of the 1968 Act. If the judges do not know what that section means, it seems to be a shame that one should repeat its wording in a 1983 Bill. That alone is a good reason for looking again at the question. If one looks at it again, I am sure that one will find there is a much simpler way of putting the point which is made here. Therefore, in the interests of simplicity, brevity and the avoidance of the pitfalls of the Section 9 wording, I beg to move Amendment No. 4.

Lord Mackay of Clashfern

As the noble and learned Lord has said, this is entirely a drafting matter. What we have done is to use the language of Section 9(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968. The date is of course of some importance, although the noble Lord, Lord Ross of Marnock, seems to have left his place. The wording of that section has been the subject of judicial scrutiny and decision. It is true that there has been some judicial disagreement as to its effect, but that has now been settled. The judges have decided what the effect should be. The mere fact that there is disagreement does not necessarily mean that both were wrong or that there is anything particularly wrong with the clause. The clause emphasises both the positive and the negative side of the matter. We feel it would be unwise, when we want to get exactly the same result as in Section 9(2), to go for different words. If one goes for different words it is assumed that one is attempting a different result. Accordingly, at the present time we would say that the words of Section 9(2), which we followed, should be followed again.

As the noble and learned Lord has pointed out, the Scottish Law Commission is considering this area. Any proposals which they may put in their report on this matter would be taken into account by the Government when that report is available. In the meantime, however, it seems to us best to adhere to the words which have already been the subject of judicial determination.

Lord McCluskey

I am certainly not very happy with that answer. The judges have disagreed about the effect of the section. The Lord Advocate believes that the disagreements have been resolved. That is not my reading of the judgments on the meaning of the section. The other point is that Section 9(2) of the 1968 Act was designed to allow a pursuer who was claiming damages in a personal injury case to be entitled to succeed, even though he could not find a corroborating witness. I had the case of a man who was injured while working inside a long metal tube. There could be no possibility of corroboration as to the circumstances in which he came to be injured. It was that kind of case which the Legislature had in mind. Those were defended cases. Here we are talking about a class of undefended case. It does not seem to me that one is talking about repeating the Section 9(2) provision; one is just entitling the court to proceed upon uncorroborated evidence. I see no particular reason for following a precedent which, for the reasons I have given, is a bad precedent. However, the Government seem to have set their face against simplicity and brevity. It is not for me, therefore, to become unduly complicated in telling them that they should not do so. Therefore I shall sit down. I beg your Lordships' leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 5 not moved.]

5.29 p.m.

The Earl of Selkirk moved Amendment No. 6:

Page 2, line 11, after ("Advocate") insert ("after consultation with the Lord President of the Court of Session").

The noble Earl said: I do not want to make too much fuss about this change in the law of evidence, but it is one which is very important. I should like to read what the law has been for 300 years. This is from our great institutional writer, Stair: One witness cannot make sufficient provation; whatsoever be the quality or veracity of that witness … One witness may concur with other evidence to make up provation, though it be not sufficient alone". That has been broken, as the noble and learned Lord said, in the 1968 Act. It has now been broken for a second time. My anxiety is that there will be slippage. There always is slippage once one starts on such a course; it goes further and further. It is proper to say that it woud be very unwise to allow it. We have a well-established system on this basis, although I know that divorce actions are rather peculiar. But who are we to tell what the future may hold?

He is taking on powers here. Clause 2(2) states: This section applies to such class or classes of undefended actions for divorce". That is the beginning of the subsection, but that could be the basis of a further development. I sought to place a degree of restriction on what the Lord Advocate can do—and it is that he should consult the Lord President of the court. I hope that my noble and learned friend will say that he can do so. I hope he will make it clear that Lord Advocates should always do this. After all, it is the practice of the court that matters and it is the Lord President who should know more about that than any other person. I am concerned not about the way in which matters stand at the present time because I do not think that it is wrong in itself that they have peculiar effects. But I am concerned that this should not be a staging post for further developments which I believe should be approached only with the greatest care. I beg to move.

Lord McCluskey

I rise to support the noble Earl, Lord Selkirk, in this matter and I do so for one particular reason. In the Official Report of the debate at Second Reading (col. 835), the noble and learned Lord the Lord Advocate said: 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". The question I ask is, whose experience is the noble Lord talking of? The Lord Advocate, as Lord Advocate, has no experience of divorce in the sheriff courts. The Solicitor General has no experience of divorce in the sheriff courts. The Crown Agents have no such experience, because all their consideration is given to matters of crime. Neither has the Procurator Fiscal. The Lord Advocate's department, happily ensconced in London, has absolutely no knowledge whatsoever as to what happens in any court in Scotland. Accordingly, the experience referred to by the noble and learned Lord the Lord Advocate as shedding light on the operation must be at second hand.

Whose experience is it? It must be the experience of the Scottish Courts Administration. That is a body which itself has very limited and second-hand experience. In effect, the Lord Advocate's judgment in the light of experience will be based on what is reported to him third-hand, as it were, by the Scottish Courts Administration, unless he consults the judges. In my view, that is the reason why the amendment proposed by the noble Earl, Lord Selkirk, is absolutely sound.

It may be that the noble Earl should have gone further and required the Lord Advocate to consult not just the Lord President but the sheriff principals as well, because they will know how the matter is operating in the sheriff courts. I hope that, prompted by this amendment, the noble and learned Lord the Lord Advocate will be able to tell us that he will not act without first consulting both the Lord President, to ascertain the views of the judges, and the sheriff principals, to ascertain their views, because it would be a pity if the experience of which the noble and learned Lord the Lord Advocate spoke at Second Reading were to be experience derived solely from the Scottish Courts Administration.

Lord Hughes

I shall be surprised if the noble and learned Lord, the Lord Advocate, does not tell us that on a matter of this kind he will obviously have consultations. I personally have no objection to the amendment's being accepted, comforted by the fact that from all past experience, when Governments and Ministers have been obliged to consult people on various matters, it has not followed that they have been compelled to act. The noble Earl is not asking that the Lord Advocate shall act only with the assent or concurrence of the Lord President but that he should consult him. I am quite certain that such consultation is the normal procedure in matters of this kind.

With regard to the point about change not having taken place in this field for 300 years, that does not surprise me. We all know that in matters of law, change proceeds very slowly indeed. Some practices in which changes are still necessary go back even longer than 300 years, I have no doubt. I am reminded of something that was said during the sitting of the Royal Commission, when we were dealing with changes which were necessary. One of our number—and it would not be fair to say who it was, but some of your noble Lords who are legal people will know who said it—noted that one Scottish judge had commented that a change for the better was a contradiction in terms, and I believe that view has animated the law for all these 300 years.

Lord Wilson of Langside

I do not wish to take up the Committee's time unnecessarily. There may have been times when the relationship between the Lord Advocate and the Lord President of the day have been somewhat strained, but even then it would have been quite unthinkable that, in a matter of this kind, the Lord Advocate would not consult the Lord President, who would in turn consult all the judges.

Lord Mackay of Clashfern

In my experience it would be utterly unthinkable to propose any order of this kind without consulting the Lord President. It is fair to say that I am privileged to consult the Lord President on a great number of matters in which there is no statutory requirement for me to do so. Statutory requirements to consult the Lord President involve the Court of Session's interest in the registers of Scotland; that is rather a special field. Otherwise, these matters proceed on understanding, and I can certainly undertake for myself that I will always consult the Lord President in relation to matters of this sort. And once the sheriff courts also become involved in this matter, I would expect that the sheriff principals' experience will be extremely important.

The experience to which I referred at Second Reading was the experience gained by those who operated the system, and the Lord Advocate's responsibility would be to find out what that experience was. One way in which he would do so would be by consulting those who deal with this matter and who are responsible for it. So I say to my noble friend Lord Selkirk that I have certainly consulted the Lord President and I undertake to do so. I believe that this particular provision is of such a kind that no one in the office of Lord Advocate—however much he wanted to go ahead on his own—could do this without consulting the Lord President.

The Lord President has been very fully consulted about the order I shall be proposing to make assuming this Bill receives Royal Assent. I shall be proposing to make an order under this clause specifying that corroborated evidence will not be necessary in divorce actions but for which the simplified Cowie procedures are available, and the Lord President agrees to this. Indeed, it would not be too much to say that the need for this particular provision arose out of the consideration given to the matter when the Cowie Committee was set up. I hope that my noble friend will feel able to withdraw his amendment in the light of these assurances. I may say that I have asked the Lord President about this and he has authorised me to say that he agrees it would be better left as it is, in case it would cast doubts on the consultation arrangement in other matters where no statutory provision exists.

The Earl of Selkirk

I am extremely grateful to my noble and learned friend for the very forthright statement that he has made, which covers the major issue I had in mind. This is the sort of matter that is of a somewhat fundamental character, and in the remote, almost inconceivable situation in which the noble Lord, Lord Hughes' is concerned with a criminal court, it is possible that he will be grateful to me for drawing attention to this. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.38 p.m.

Lord McCluskey moved Amendment No. 7:

Page 2, line 17, leave out subsection (4) and insert— ("(4) No order shall be made under this section unless a draft of it has been laid before Parliament and approved by a resolution of each House of Parliament.").

The noble and learned Lord said: Some of the matters which were in my mind when I put down this amendment have been discussed and dealt with in the speech just delivered by the noble and learned Lord, the Lord Advocate. May I just remind the Committee of one point? The clause we have here is, as we have been told, modelled on Section 9(2) of the 1968 Act, When that Act was a Bill in this House, your Lordships found that the intention at that particular time was to remove the need for corroboration from a much wider class of case than the classes of case to which the section ultimately applied. Your Lordships' House decided to amend the original Bill and to restrict the effect of Section 9(2) to actions of damages for personal injury only. On that occasion there was show of your Lordships' concern that we should not lightly abandon long-standing rules of evidence, and that is just the point that the noble Earl, Lord Selkirk, has raised with the previous amendments.

By contrast with Section 9, however, which told us exactly what was being done, by defining precisely to which classes that section applied—that was done within the section itself—this clause does not do so. It allows the Lord Advocate—who will no doubt consult, as he has told us he will do—to make this section apply to particular classes of case, and there is no supervision by Parliament. All I want is that the Lord Advocate, after the consultation that is spoken of, should then come back to Parliament—and it need not take long because these matters can be put through very quickly—and he can then explain what he is doing and why he is doing it, what experience has justified the change and what the results of his consultation have been. I would have thought that was a fairly modest request to make when one is interfering with the law of evidence, albeit only in one general type of case, the divorce case. It is for that reason I put down the amendment. I beg to move.

Lord Mackay of Clashfern

I would suggest to your Lordships that the clause as drafted gives a sufficient protection for the rights of Parliament in this matter. The order would relate solely to the class or classes of undefended divorce actions in which corroboration may not be required. It would not appear to me that affirmative resolution procedure is appropriate to that. If any Member of your Lordships' House or Member of the other place had any doubt about the propriety of the order they could readily raise it under our provisions, and I would hope that the Lord Advocate would be able to satisfy Members of both Houses without the necessity of taking up parliamentary time on it. It appears to us that this sort of provision is in line with the general practice which your Lordships' House has followed in orders of this kind. In the light of that explanation, I would hope that the noble Lord would feel able to withdraw this amendment.

Lord McCluskey

Yes, I do feel able to withdraw it, and with your Lordships' leave, will do so.

Amendment, by leave, withdrawn.

On Question, Whether Clause 2 shall stand part of the Bill?

Lord McCloskey

On this Question, I want to make just two brief points. First of all, at Second Reading I referred to this clause as an example of the Government by-passing the Scottish Law Commission; I pointed out that the Scottish Law Commission is currently considering the law of evidence and is going to make recommendations, and I regretted the fact that this change was being made in advance of those recommendations. However, I do not repeat that point, because the Government are entitled to proceed in this way if they choose to do so.

I referred to what I called a much worse example of by-passing the Scottish Law Commission on the question of Clause 53 of the Police and Criminal Evidence Bill. I said I would come to that on another day. It looks as if I have been deprived of that other day, because the Lord Advocate has demonstrated his wisdom and he seems to have abandoned Clause 53 of that Bill. So I can only offer my congratulations on that.

One last point I want to make is that this clause appears to me not to deal with divorce jurisdiction, not to deal with court fees and not to deal with legal aid, but to deal with evidence. Accordingly, one would have thought that that ought to be in the Title of the Bill. I have an amendment down, No. 17, which is to raise that particular point, but it may be that the Lord Advocate could enable me to withdraw that particular amendment if he took this opportunity to explain why he has a clause about evidence in a Bill which does not refer to it in the Short Title. I beg to move—no, I am sorry; I do not beg to move.

Lord Mackay of Clashfern

I am glad to accept the congratulations with regard to a matter in another Bill. We considered all the representations, including those made to us by the noble and learned Lord, and decided that it was right not to press that Clause 53 of that Bill should apply to Scotland. That matter is still under discussion in another place, so anything we say is entirely tentative.

So far as this particular matter is concerned the evidential requirement is in a peculiar situation in this case in that it restricts the jurisdiction of the court to grant a divorce. The court is not entitled to grant a divorce unless sufficient evidence is before it. So its jurisdiction is to that extent restricted. This, although it is a matter of evidence, is a matter also that enlarges the jurisdiction of the court to pronounce a decree in actions of divorce where the evidence is not sufficient in the sense of the previous law. So that I would think that the use of the phrase "divorce jurisdiction" in the Short Title is an adequate description of it.

The Earl of Selkirk

I wonder if I could ask the noble and learned Lord a question. This amendment raises the question of informing the other party in regard to the affidavit. Are there any rules about the time period within which that affidavit should be made available to the other party? It does seem to me important, because a witness you can cross-examine but an affidavit you cannot. There may be rules on it. Perhaps my noble friend could tell us.

Lord McCluskey

I am afraid that by referring to matters rather wider than the Question that Clause 2 stand part, I misled the noble Earl into thinking that I was dealing with an amendment. I am coming to the affidavit in a moment. It was my fault because I said, mistakenly, "I beg to move"; I apologise for that.

Clause 2 agreed to.

5.46 p.m.

Lord McCluskey moved Amentment No. 8:

After Clause 2, insert the following new clause:

("Affidavit procedure.

.—(1) For the purposes of any proceedings in Court, whether civil or criminal, an affidavit purporting to be signed by any person who is a competent witness in such proceedings shall be sufficient evidence of any fact or other matter narrated in the affidavit.

(2) Subsection (1) above shall not apply to an affidavit—

1. (a) unless a copy has been served on all other parties to the proceedings not less than 14 days before the hearing of evidence begins at any trial, proof or hearing in such proceedings; or
2. (b) when any other party to the proceedings, not less than six days before such trial, proof of hearing, or by such later time as the Court may in special circumstances allow, has served notice upon the party serving such copy affidavit, that such other party challenges the fact or matter, or any part of it, narrated in such affidavit.

(3) A copy of an affidavit signed in accordance with subsection (1) above may either be personally served on the other party, or his known solicitor, or be sent to him by registered post or by the recorded delivery service; and a written execution purporting to be signed by the person who served such a copy affidavit together with, where appropriate, a post office receipt for the relative registered or recorded delivery letter shall be sufficient evidence of service of such a copy.

(4) In making any award of expenses against any party in any proceedings the court shall have regard to the extent to which the parties availed themselves of the provisions of this section and if satisfied that by the use of affidavit procedure the cost of the proceedings could have been reduced may, in exercising its discretion on expenses, take account of the conduct of any party either in failing to use of such procedure or in effectively preventing its use by any other party.").

The noble and learned Lord said: I will again deal with this fairly briefly for the same reasons as I gave in relation to Amendment No. 3, namely, that as the Bill stands, and looking at the Short and Long Titles, this amendment would be irrelevant. Recognising that, I put down other amendments to cure that situation.

I do not think this amendment is perfectly drafted. I do not think it is the job of Members of this Committee to attempt to be perfect draftsmen; that is the job of the Government draftsman. So I apologise if that is so, but I will not apologise again in relation to the other amendments. This amendment is intended for a particular purpose. My view of this Bill is that it is largely motivated—I do not say wholly motivated, but largely motivated—by a desire to save money and to save the waste of time and resources. I applaud the desire to make these savings. I believe that there are many other ways in which within the court system in Scotland we could save time and save money. This is one suggestion which I put forward just to illustrate that there are many matters that might be considered.

In our criminal procedure we now have, as a result of the Criminal Justice (Scotland) Act 1980, a clause, Clause 26, about routine evidence, which enables matters which are regarded as relatively routine to be proved by the lodging in effect of a certificate. That is a valuable measure, albeit it is not hugely important, because it saves the time of witnesses, especially forensic scientists and forensic pathologists, and possibly policemen and other people who are in a position to certify certain things as facts. It also saves the time of the court, which does not have to hear the witnesses but can take the facts as established by the certificate. And of course it saves the time of practitioners and it saves the time of jurors. So the routine evidence provision of the Criminal Justice (Scotland) Act is a valuable one. It was in the Bill which we introduced when I was holding office as Solicitor-General for Scotland, and it was enacted in 1980.

What I want to suggest is that that kind of provision can be extended. At the moment parties can agree, whether in a civil or a criminal cause, that a particular state of facts exists and therefore for the purposes of that action that state of facts is held to exist. But very commonly they do not agree, and it is a pity they do not, because one could save an awful lot of time in court if the two parties got their heads together beforehand and agreed what they were in dispute about and agreed that the other matters should be put into a joint minute. What I am trying to do here is to encourage the parties to reach agreement in effect, and that is done by this particular mechanism, the mechanism taken from Section 26 of the Criminal Justice (Scotland) Act 1980.

It allows one party to prepare an affidavit containing the evidence on a particular fact and that affidavit would be served upon the other party or parties to the action, and, provided they did not object then, the facts contained in the affidavit would be deemed to be facts for the purposes of the particular case. Of course, if any other party disputed any fact narrated in the affidavit, then under subsection (2)(b) he simply serves a counter notice challenging the fact of the matter narrated in the affidavit and that is the end of it. The affidavit disappears as if it had never been prepared.

What I am endeavouring to do is not to deprive the court of evidence on matters which might be in dispute: I am endeavouring to make it more likely that one party which wants to reach agreement can take the initiative by means of the affidavit procedure and thus avoid wasting the time of the witnesses, of the court and of the practitioners themselves. I believe that a procedure of this kind would encourage the parties to discuss the evidence earlier to narrow the areas of dispute. It will encourage the exchange of precognitions, for example, in criminal cases.

Let me give the classic example. In criminal cases where someone has been killed or badly injured as a result of alleged assault, it is very common to bring to court two ambulance drivers to prove that he was taken from the scene of the crime to the Glasgow Victoria Infirmary, or whatever it may be. One ought to be able very simply to put the evidence of the ambulance drivers into an affidavit and the Crown would serve that affidavit on the defence. It could be said that the court was not bothered about the ambulance drivers and there was no question to raise and it would be accepted. It merely makes it easier to reach agreement.

This procedure would apply not just to ambulance drivers but it would apply to many policemen. It would apply to the policemen who took photographs, the policemen who picked up objects at the scene of the crime, the policemen who made plans showing the measurements at scenes of accidents, and so on. It would apply to people who keep records relating to motor cars, to drugs, to firearms, to fingerprints and even to the contents of what was shown on the BBC or ITV on a particular evening—a question which often arises in courts when people say they were sitting at home watching "Coronation Street" or whatever it was when they were supposed to be out murdering their fellow citizens. These matters can thus be put before the court simply by means of an affidavit. Indeed, even more serious matters can go into an affidavit, if they are not matters which are in dispute. If the question in dispute is a narrow one all the other questions ought to be capable of being put in.

As I say, I am not compelling anyone to do this. I am merely encouraging it. I hope that the Government will see some way to encourage this kind of move, and maybe the best way to encourage it would be to accept my amendment. Accordingly, I beg to move.

Lord Mackay of Clashfern

As the noble and learned Lord was waxing eloquent on his amendment I was beginning to wonder whether I was wrong to take the decision I referred to about Clause 53 of the other Bill. However, in relation to criminal matters the noble and learned Lord has referred to a fairly recent provision extending the law in this direction for routine evidence. I feel it would not be right to go along with this proposal in relation to criminal matters at this stage.

In civil matters, in the Court of Session and the sheriff court, the court has power, if it wishes and it thinks it right, to make rules in accordance with the provisions of this amendment. I suggest to the noble and learned Lord that that is the way to proceed if he wishes this matter to be pursued. I would suggest that that is the way in which it can be pursued. There is also sitting the Cowie Committee on Criminal Procedure, which would, no doubt, also be interested in the matter. I am happy to draw to the attention of these various bodies the amendment that the noble and learned Lord has proposed. I would not have thought it right at this stage on this Bill, particularly with the Law Commission dealing with these very matters, to accept the present amendment, although I very much applaud and appreciate the sentiment with which it has been moved and put forward.

Lord McCluskey

For the reasons that the Lord Advocate has given, and because he has undertaken to draw the attention of the other bodies to the idea behind this, as well as because it is irrelevant to the Bill as presently drafted, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 [Power of Secretary of State to make provision about fees etc. in relation to legal aid]:

The Earl of Selkirk moved Amendment No. 9:

Page 2, line 27, after ("and solicitors") insert ("including the period within which payment should be made").

The noble Earl said: We now come to the next stage of the Bill in which the Secretary of State takes over the control of legal aid. In Clause 3—amending Section 14 of the Legal Aid (Scotland) Act with Section 14A—he is given powers to do this. There are a number of powers, some of which are mentioned in other amendments.

In the course of the Committee stage in the other place some really disgraceful examples were given of the long-term delay in ordinary legal aid being paid. People mentioned lengths of time such as seven years before they were paid. Someone else talked about 20 years. I do not know how far that is true, but there seems to be general agreement that delays in legal aid in civil actions, as opposed to criminal actions, can go on for a long time. It depends how soon solicitors make up their accounts, how soon they put them together and a variety of other factors. What I am asking in the amendment is: will the Secretary of State undertake, among his other duties—it is not mentioned here—control of the period during which payment should be made? This is a simple point. Is the Secretary of State, in the powers he is given, given adequate power to see that the payment is timeously made? That is all I am asking in this amendment and I should be glad if my noble and learned friend will make the position quite clear. I beg to move.

Lord McCloskey

Perhaps I may support this again fairly briefly. When I was Solicitor-General for Scotland in 1978 and had not been in private practice for a number of years, I received a fee payable in guineas dating from some imprecise time before decimalisation. It was probably about 10 years since I had earned the money and it was worth only a fraction of what I would have received had I received it promptly. In those days the salary of a Solicitor-General was so small that it was gratefully received, albeit 10 years late.

The legal aid practitioners already suffer deductions from the normal fees that they would earn in private practice, and under the Bill, and the regulations to be made under it, I have no doubt they will find that the full rates will not be paid for legal aid work in the future. On top of that, it seems a pity that they should have to wait while the bureaucracy slowly grinds its way through the perusal of accounts, the assessment of accounts, taxation and the ultimate review of the taxation before reaching the happy day of payment. This applies even more, oddly enough, to counsel than to solicitors, because counsel in at least some of these cases have to wait until the solicitor chooses to put in his account before the taxation review procedure starts. It can take a long time.

The Lord Advocate will tell us that a number of strides have been made forward recently, partly because of what was said by Lord James Douglas-Hamilton in another place, but I hope he will be able to give encouragement to practitioners that they will not have to wait years for the payment of their fees.

Lord Wilson of Langside

I also support this amendment. The examples to which the noble Earl referred were quite disgraceful and no doubt we could all, from our own experience, give other illustrations of the same sort of thing. I recall that when I went to the Bar as a very young man the practice was to pay one when one was briefed. Apparently we have moved a long way from that time. It is a great pity that we should have to legislate to achieve a proper arrangement for the payment of fees, but from the examples given in the debates in the other place it may be that something of that kind is necessary.

Lord Campbell of Alloway

Perhaps your Lordships will permit me to say that this problem exists on this side of the Border as well as north of the Border. However, the recent arrangements that have been made this side of the Border without any form of statutory effect have begun to work extremely satisfactorily: that is, an arrangement made between the Bar and the solicitors. There is also a scheme devised by my right honourable and learned friend the Solicitor-General to get part payment of fees, which is already operating. I thought that if your Lordships allowed me to intervene that might be of interest, because although I am not a Scots lawyer I am a Scot, and to at least advert to the fact that there is another way that is beginning to work here remarkably satisfactorily.

Lord Mackay of Clashfern

I understand that at least some of the illustrations given both here and in another place relate not necessarily to legal aid but to the ordinary methods by which these litigations are funded. For example, I am not sure whether the welcome addition to the income of the noble and learned Lord, Lord McCluskey, in 1978 was from Her Majesty's Government in another guise or from some private litigant. But the problem also exists in private litigation.

The first point I must make is that technically this amendment is not necessary because the specific provision which it makes can be secured without such a reference under the wide terms of the introduction to Section 14A and of paragraph (g). However, I do not want to leave it at that. I certainly agree with my noble friend's point that it is extremely desirable that those who have acted on behalf of legally aided clients should not have to wait for a disproportionate period of time before receiving payment for those services. The best means of achieving reasonably prompt payment will be considered as part of the review of fees which the Government intend to undertake. With these powers the Secretary of State intends to examine this matter as a practical matter in considerable depth. I can assure my noble friend without hesitation or qualification that this particular aspect of the matter will be examined.

Conditions in relation to the manner, timing and amount of payment may be prescribed in the regulations. I believe one of the difficulties has been the time taken for those who are entitled to payment to make their claim. Some people take quite a long time to put in their account, and it will certainly be possible to stipulate that fees due to a solicitor may be abated if accounts are not submitted within a certain period from the end of the court proceedings or the completion of the case. That will be a fairly strong compulsitor to put in the claim within a reasonable time. I understand that the great majority of accounts are rendered within nine months of the case being completed and it is only a minority of accounts that are delayed beyond that period. My understanding is that there is very little delay from the time of the accounts going in and the actual payment, unless a special problem of taxation is involved.

Already a scheme for payments on account to counsel in criminal cases has been introduced in Scotland and a scheme similar to that to which my noble friend Lord Campbell of Alloway referred as having been devised by my right honourable and learned friend the Solicitor-General for England and Wales has also applied in Scotland for interim payments in certain civil legal aid cases to solicitors and, through them, to counsel.

In any arrangements for payment of accounts it is desirable to ensure that these are made only where there is a clear justification and where any undue increase in administrative effort—for example, in the scrutiny of accounts—would not be involved. If these accounts have to be examined more than once administrative difficulties are created.

I think it is also true to say that the Faculty of Advocates, with the Law Society, has considerably advanced in relation to arrangements in cases other than legally aided cases for staged payments. I understand that that has been advanced some distance. Obviously that will contribute towards assisting in the problem generally. I hope that my noble friend, in the light of the assurances I am able to give that the matter will be considered and dealt with, and that we have the power under the existing draft to do so, will feel able to withdraw his amendment.

Lord Ross of Marnock

I think we are all grateful to the noble Earl for having raised this point and opening up an area of very considerable concern. I was wondering if the same laxity and the same delays apply to the contribution made by clients to their part of the legal aid costs, outwith the legal aid. As the Lord Advocate will know, assessment is made of the likely costs and assessment is made of the contribution that the client will have to make towards these costs, taking into account the legal aid aspect. Are they subject to the same delay? Are they given the same freedom to wait for as many years as my noble friend had to wait for his fee? I doubt it very much. In fact, it is done in a very different style.

A friend of mine told me about a client of his who had applied for a divorce. I think it started with an initial application to the solicitor about 22 months ago. An assessment was made of what she would have to contribute. It was as much as she could pay right away so arrangements were made to pay by instalments. She paid her full instalment by, I believe, December. She was still waiting for the divorce proceedings to go to court when she received a letter to say that, owing to changes in proceedings, the application would need to be done under the new system. All the money that she had paid was frustrated and not paid back. But under the new and cheaper system she would not be entitled to legal aid so she would need to make that on her own.

People wonder why I get suspicious of lawyers. In this case there are no children under the age of 16 and the case is undefended. I believe that the office of the Lord Advocate will be hearing about it, if it has not already done so. I had hoped that by this time a letter would have come forward from which I could read details of the case to the House. It seems that there is less laxity there. If the client is expected to pay up then why not in relation to the person entitled for work done in the courts? Even to suggest that it is nine months before payment is made is unsatisfactory.

When I hear about the state and conditions of some of our younger advocates in Edinburgh, which is a terrible thing to be allowed to go on, I can understand the sympathy that my noble friend Lord McCluskey has towards this amendment which was put forward so well by the noble Earl, Lord Selkirk. Is this dealt with in a different way?

The Earl of Selkirk

I am grateful to my noble and learned friend for what he said and I think he has brought out what I hoped might be the case—that the Secretary of State will make such provision as seems to him appropriate in respect of fees. Therefore, if the fees are not paid properly it is because the Secretary of State has not thought it appropriate. In other words, he carries a clear responsibility to see that the fees are paid appropriately, and that is exactly what I thought might be the case, but I proposed the words in my amendment to make sure. My noble and learned friend took up the point that my noble friend Lord Campbell of Alloway made about part payment. He mentioned criminal cases; he did not mention civil cases. That is the point which is really worrying at the present time. I only hope that he will be able to include that when the arrangements are made.

Lord Mackay of Clashfern

If I did not, it is my fault. The arrangements which my noble friend Lord Campbell of Alloway referred to, operating south of the Border, have been mirrored by arrangements north of the Border in relation to payments on account in civil legal aid cases.

The Earl of Selkirk

I am grateful to my noble and learned friend. I beg leave to withdraw this amendment.

Amendment, by leave, withdrawn.

6.10 p.m.

Lord McCluskey moved Amendment No. 10:

Page 2, line 36, at end insert— ("( ) prescribed, either specifically or otherwise, rates or scales of payment of fees and outlays allowable and the conditions under which such fees and outlays may be allowed in respect of actions for divorce raised in the Court of Session").

The noble and learned Lord said: I beg leave to move Amendment No. 10. This amendment, I think, touches some of the same ground as is covered by Amendment No. 11, standing in the name of the noble and learned Lord, Lord Wilson of Langside. My purpose is really to try to get from the Government a very straight answer to a simple question. Is it the intention of the Secretary of State, while legal aid continues to be granted in divorce cases, to permit persons to obtain legal aid in order to raise an action of divorce in the Court of Session? The second question is this. At the present time, as I understand it, in order to get legal aid to raise an action in the Court of Session, whatever its character, one has to apply to the Supreme Court Committee. If that is right, will the Supreme Court Committee be able to grant legal aid in divorce cases, or will its capacity to do so be fettered in some way by the regulations, and, if so, in what way?

The third point that I want to make is that I entirely support what I believe to be the thinking behind Amendment No. 11, in the name of the noble and learned Lord, Lord Wilson of Langside, and that is that if legal aid continues to be granted in divorce actions, as no doubt it will be for some time, the legal aid fund should not have to pay more simply because the action is raised in the Court of Session than it would have to pay if the action were brought in the sheriff court. Therefore, I should simply like the Lord Advocate to answer the questions I have asked, if I may ask him to do so, and tell us whether or not the regulations that are proposed to be made here will somehow enable the legal aid fund to be protected from parties who choose to litigate in the Court of Session at greater expense. In other words, will the regulations enable parties to litigate in the Court of Session but at no greater expense than the cost that would fall upon public funds if the action were raised in the sheriff court? I beg to move.

The Earl of Selkirk

I have a somewhat simpler amendment, Amendment No. 12, but perhaps it would be convenient if I were to make my observations at this time. The noble and learned Lord, Lord McCluskey, has really raised a fundamental point in this issue. It has long been the practice, as has indeed already been said, that litigant pursuers can select the court to which they want to go. I think this is extremely important. If someone loses an action and says, "Oh, if only I had brought it in another court I might have won", he may be quite wrong, but the importance is that he should be reasonably satisfied that he has made the selection and that he has lost, or whatever the case may be.

The noble Lord, Lord Ross of Marnock, was saying that this should be made by the sheriff or the court. I do not think that that would give the same satisfaction at all.

Lord Ross of Marnock

I did not say that. It was the Royal Commission on Legal Services in Scotland.

The Earl of Selkirk

I apologise to the noble Lord. I think it is important that whoever is the pursuer should be perfectly free to choose the court, for good or bad, which he thinks can resolve the problem he has.

The question is widely canvassed today that under legal aid no counsel will be able to be employed in divorce cases. Is that so, or is that not the case? People may want to go to the Court of Session for many reasons: complexity, personal choice, a hunch, or something of this sort. It may be an inadequate reason, but they want to go. They may say, "If I only go to the sheriff court, it may not be so satisfactory". I am not saying whether that is right or wrong. I am asking whether they will be free to exercise their right, long established, of choosing the court they should go to, or is the whole body of legal aid going to prevent them from going to any court except that selected by someone else? This is a fundamental point. I would be grateful if my noble and learned friend could tell me that.

Lord Mackay of Clashfern

Concurrent jurisdiction is not a new phenomenon so far as Scotland is concerned, as we have heard, and therefore the legal aid system has had to cope with this. My understanding of the position is that, where the matter which is the subject of a legal aid application is a matter where there is concurrent jurisdiction, legally aided parties do not have a complete freedom of choice. They have a right to apply in the case of the Court of Session to the appropriate legal aid committee for legal aid, which is the Supreme Court Committee, but they cannot expect the Supreme Court Committee to grant legal aid for a Court of Session action when it would be heard more cheaply, conveniently and appropriately in the sheriff court.

Similar considerations may be expected to apply in divorce actions. Legal aid expenditure in Scotland during the current financial year will exceed £30 million. It would not be fair to expect the taxpayer to give money to allow assisted persons to opt for unnecessary and expensive departures from normal practice. The legal aid authorities have a responsibility to ensure economical arrangements consonant with the interests of justice and of the applicant. Precisely what may happen as between the Court of Session and the sheriff court will depend a great deal on the nature of the scale of fees which it is possible to prescribe for legal aid matters in the Court of Session. Certainly the Secretary of State intends to prescribe fees for the Court of Session in the way that this amendment has in mind.

The question of the amount of these fees will depend on negotiation. The results, I hope, will not be to create too much disparity between the one court and the other, but a great deal depends upon what those who practise in the Court of Session, whether as counsel or solicitors, are able to offer in the way of economical terms. I would think that it is quite a useful thing to have some degree of competition in this matter. One's experience is that when the possibility of competition emerges there is sometimes less pressure for higher fees than otherwise there would be. This is an area where some possibility of competition exists. The answer to the question asked of me by my noble friend Lord Selkirk is that the position will be the same in principle as it is just now where concurrent jurisdiction is concerned in legally aided cases.

The noble and learned Lord, Lord McCluskey, asked me something further. I would simply say that whether it will be possible to go to the Court of Session will, as I say, depend upon the scale of fees which it is possible to negotiate there, but the Secretary of State has every intention of arranging a scale of fees for this work in the Court of Session, as in the sheriff court. It may be possible that the scale of fees might be the same, for all one can tell. There may be a possibility that the people in the Court of Session would be able to agree to terms of that kind, for all I know. If that were the case, it would greatly simplify the question for the Supreme Court Committee. I think that I have answered the matters which have been put to me, and I hope that in the light of these answers the noble and learned Lord will feel able to withdraw his amendment.

Lord Hughes

I think in this matter the Secretary of State has some very useful ammunition at his disposal in discussing these fees. One of the arguments which was advanced before the Bill came before the House and which has been advanced since it came before the House is that there is no real reason—this has been put forward by those who have practised and hope to continue to practise in the Court of Session—to believe that procedures will be any cheaper in the sheriff court than they would be for a similar action being raised in the Court of Session. So the Secretary of State will certainly be able to give these people the opportunity of proving the correctness of their case by adjusting the fees accordingly.

Lord Mackay of Clashfern

I am obliged to the noble Lord. It had not escaped my right honourable friend's attention that he has a certain ammunition of that character available.

Lord McCluskey

What the noble and learned Lord Advocate is saying to us is that it is up to the Faculty of Advocates to fix a price for their "wares", so to speak, that will enable them to go to the Supreme Court Committee and say, "You can properly, having a proper regard for the need to protect public funds, allow people to come to the Court of Session". I entirely support that and I hope that the Faculty of Advocates will pay particular attention to what the Lord Advocate has said. The Lord Advocate said that they may even be able to agree upon the same scale of fees. I should hope that at a minimum they would be able to agree upon the same scale. It may even be, oddly enough, that counsel will be able to charge less than solicitors would charge for doing certain work because counsel, unlike solicitors, do not have staff to hire and fire, or premises to warm and insure, and accordingly they really ought to be able to compete. I believe—and I am glad to hear that the Lord Advocate is really on the same side as I am on this point—that it is up to the Faculty of Advocates to look closely at what they can do and compete for the business. If the beneficiary of that is public funds, so much the better. However, with those observations I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.22 p.m.

Lord Wilson of Langside moved Amendment No. 11:

Page 2, line 36, at end insert— ("( ) entitle parties seeking legal aid in consistorial actions in the Court of Session to the benefit of legal aid for such an action within the limits of the total fees allowable for such an action in the sheriff court; ( ) entitle solicitors to exercise a discretion to instruct counsel in any action in the sheriff court, provided that the total liability of the legal aid fund for such an action does not exceed the liability it would have incurred had the action proceeded without the involvement of counsel;")

The noble and learned Lord said: I beg to move Amendment No. 11. In my view, the terms of this amendment are self-explanatory in the light of the discussion we have already had on Lord McCluskey's Amendment No. 10, and it covers somewhat similar ground to that of Amendment No. 12, which is to follow. The first part of the amendment seeks to entitle parties seeking legal aid in the Court of Session to the benefit of legal aid there within the limits of the total fees allowable for such an action in the lower court. The second part of the amendment seeks to provide for the situation in the sheriff court and to allow for the instruction of counsel to be covered by legal aid there. The business of the instruction of counsel in the sheriff court is quite important to the successful working of that court. One of the difficulties which the busier courts have—and this is not to cast any kind of aspersion on the solicitor pleader—is that they have the benefit of counsel pleading less often than would be disirable. The second part of this amendment is designed, perhaps, to meet that particular difficulty to some extent. I beg to move.

Lord McCluskey

So far as the first paragraph is concerned I have nothing to add that I have not already said in relation to my own amendment. So far as the second part is concerned, may I respectfully say that I agree entirely with this idea. At present your Lordships should know that a solicitor who obtains the benefit of legal aid for his client is entitled to claim a fee from the legal aid fund for spending the day in court on behalf of his client; but he is not allowed to claim that fee or any part of it if, instead of going himself, he chooses to instruct counsel. In other words, counsel's fees in the sheriff court in legal aid cases are payable if, and only if, the appropriate legal aid committee has expressly sanctioned the employment of counsel.

That, from one point of view, is rather unfortunate. A solicitor who has the benefit of legal aid and knows exactly what fee he would get for appearing in court one feels ought to be able to say, "I cannot be there for that day", for whatever reason—"because I am ill", or "because I am in another court" or something of that kind—"but I should like counsel to be there in my place and counsel can have the whole of my fee", or "half of my fee", or whatever arrangement may be reached between him and counsel. But that simply cannot be done. As I understand the purpose of the second part of this amendment, it would allow that to be done without any penalty to public funds, because the amount would not be increased.

There is, however, one objection which I have heard and which I ought to ventilate, and it is this. At the moment there are a number of firms of solicitors practising in Scotland who have a good name among those unfortunate enough to be routinely charged with the commission of crimes. They enjoy that good name because these people feel and have learned on previous occasions while in detention of their excellent service. Accordingly, what happens is that when persons are arrested most of them will demand the services of one or two firms of solicitors who are well known to them. The result is that these firms could really represent almost everybody who is charged with the crimes of murder, arson, rape and treason—indeed, all serious crimes—if they had the facilities; but because they cannot appear in all 44 sheriff courts of Scotland on the same day they are obliged to leave some of the crumbs to fall off the table, and other solicitors get some work.

If this measure were introduced, why, counsel could then be employed; and Mr. Joe Betrami, to name but one, could appear via counsel in about 40 courts on the same occasion; and all the one-man and two-man firms which at the moment are existing on the crumbs which fall from his particular table, would find themselves out of business. So while I rather approve of the idea as contained in this particular amendment, it is one that ought not to go through without due consultation with the solicitors' interests. Apart from that, I would give it my support.

Lord Mackay of Clashfern

As regards the first part of this amendment, its precise effect would depend on the nature of the arrangements that we discussed under the last amendment. For example, if the fee scale for a divorce in the Court of Session were the same as the fee scale for a divorce in the sheriff court, I think that the particular problem to which this part of the amendment addresses itself would not arise. If, on the other hand, it happens that it is more expensive to go to the Court of Session in a particular case, this part of the amendment appears to be contemplating that the legal aid fund would be responsible for the part which is equal to the amount that one would pay in the sheriff court and the balance would be paid presumably out of the person's own pocket. This is a kind of supplementation of the legal aid fund which has sometimes been described as "topping up". Such "topping up" has been resisted by successive Governments and is contrary to Section 2(6) of the Legal Aid (Scotland) Act 1967.

An obvious fundamental objection is that if a person is able to provide money to pay for increased costs, he should either not be eligible for legal aid or be able to pay a much larger contribution. Moreover, it would be unreasonable if the legally aided client could force the other party, whether legally aided or not, to incur the increased costs of a Court of Session action, because, as the noble and learned Lord knows, the person who is legally aided attracts a certain amount of protection from costs awarded against him. There are also practical objections to such a development. For example, the lawyer concerned might be tempted to press for payment of additional fees as a priority, and therefore ahead of any legal aid contribution which is collected by the Law Society. One might say, "You are going to pay the extra yourself. I will have that first", and then go on to the contributions to which the noble Lord, Lord Ross of Marnock, referred earlier. If clients have the means to top up, it is surely conceivable for them to dig a little deeper and pay the whole cost.

So in principle, as I say, successive Governments have resisted this topping up, and I hope that your Lordships will not feel that it would be right to accept this part of the amendment if it had that effect. Of course, as I said at the outset, it does not necessarily have that effect; much depends on the nature of the underlying financial arrangements.

As regards the second point of this amendment, I know of no provision in the primary legislation which would prevent this. The only thing that prevents it at the moment is the legal aid scheme. The scheme would require modification to enable solicitors to employ counsel without the prior consent of the appropriate committee on the basis that the total liability of the legal aid fund is not thereby increased. Amendment of these schemes is a matter for the Law Society of Scotland, subject to the approval of the Secretary of State under Section 8 of the Legal Aid (Scotland) Act 1967. No additional powers are needed, and any necessary changes in the fee structure could be made under the existing terms of Clause 3. Thus the effect of this amendment would be secured without specific provision in the Bill.

There are difficulties of the kind to which the noble and learned Lord, Lord McCluskey, referred in this matter. I, personally, think that this is a change which would be desirable, and I hope that in the negotiations it may prove possible for this particular matter to be resolved. As regards the second part of the amendment, it is not necessary in primary legislation to do this, and I hope that in due course it will be reached by negotiation.

Lord Wilson of Langside

I am most grateful to the noble and learned Lord the Lord Advocate, and in the light of what he has said I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 12 not moved.]

6.32 p.m.

On Question, Whether Clause 3 shall be agreed to?

Lord McCluskey

Briefly, I should like to say a few words about this clause. In my view, the purpose of Clause 3 must be to enable the Secretary of State to reduce the fees payable in legal aid cases. I do not necessarily mean that he will take the present rates and cut them by half, by a third, or by whatever, but I think that he will certainly use his new power to make the fees in legal aid cases less by comparison with fees in private cases.

I should simply like to ask the noble and learned Lord the Lord Advocate whether he can give the Committee any idea as to what percentage or fraction of the normal fee he would expect the Secretary of State to be allowing in legal aid cases. To put it another way, how much more will the lawyer acting for the defending insurance company get than the lawyer acting for the unemployed person or widow of the man killed by the insured driver? That is something which I would hope he will be able to tell us.

I should also like him to explain how he justifies the principle of paying one side substantially less than the other. I think that the Secretary of State, observing that the cost of legal aid has gone up so much over the years, simply wants to take the power away from those who presently have it. I think that the Government's argument could not be more pithily put than it was by Mr. Cameron Miller at a Bar dinner on Friday night singing a ditty about legal aid which ended with the lines: For those dispensing legal aid Are also members of the trade". Those happy days are about to come to an end, and those dispensing legal aid are to be faceless civil servants with perhaps only the patchiest understanding of what real litigation is truly about.

The final point is that negotiations about this matter have already begun and, for example, there has been produced to the Faculty of Advocates a scale of fees which is based upon the English situation. The English fee system is entirely different from the Scottish fee system, and if the noble and learned Lord the Lord Advocate is to announce today that we in Scotland are at last to be paid as much as the colleagues of the noble Lord, Lord Campbell of Alloway, are paid in England, then far from that achieving a saving in public funds, in terms of my public hat, I fear that it will produce a great increase in the expenditure of public funds.

The draft that was produced to the Faculty of Advocates was based upon the English legal aid system. For example, it took into account a brief fee, which we in Scotland do not receive but would be happy to receive. If it is the Secretary of State's intention to give us all a brief fee, then the Government will be cheered to the echo at the next Bar dinner, despite the inability to continue to sing ditties like the one I have just quoted. We shall, no doubt, have other ditties which will recognise and salute their achievement. I beg to move—no; I beg the apology of the Committee for always moving things that I should not be moving.

Lord Mackay of Clashfern

I hope that your Lordships will agree that Clause 3 should stand part of the Bill. The ultimate result of the negotiations, which the noble and learned Lord has referred to as having begun, it would be very imprudent for me to try to forecast.I think that his second question arises only on the assumption that one has answered the first one in a certain way. So I think that disposes of both his questions.

If I am right in understanding that he says that the negotiations have started with the English scales being proposed to the faculty, and if the English scales are so much above that which the faculty is accustomed to receiving already, the negotiations may not last very long. But I suspect that it is not quite as simple as that, and the Secretary of State will certainly take into account what the Faculty of Advocates and the solicitors have to say in trying to come to a conclusion on this matter.

It is the Secretary of State's intention to try to examine the justification for the fees as deeply as he can and to arrive at a reasonable fee for the work done on the basis of the best information available. I hope your Lordships will agree that Clause 3 should stand part of the Bill.

Perhaps I should make just one other comment. One of the important purposes of the Secretary of State being given this power is that the constitutional position should be that the person responsible for the payment should have a responsibility for the negotiations. Up till now the Lord President of the Court of Session has been in a most invidious position in that he has had to have regard in some way to the policy of getting the money, because he cannot produce all the fees out of his own pocket, although he has the responsibility for regulating them. The constitutional position will be much better when the person who has the responsibility for providing the money has the responsibility for fixing or regulating the fees.

Lord McCluskey

I do not think that the noble and learned Lord the Lord Advocate specifically dealt with one point on which I would ask him to address the Committee. If in fact the end result, even of the negotiations, be that the practitioner on legal aid earns for a particular piece of work two-thirds or one-half of what the private practitioner will earn for similar work on the other side in the same case, that is a development which could have the kind of consequence that I am sure he would deplore; namely, that there will be a tendency for the better lawyers not to do legal aid work. The people who are in benefit of legal aid and who would, therefore, be receiving the advice and assistance of the less able lawyers, are of course the poor and the underprivileged. If you are entitled to legal aid these days, you have to be exceedingly poor and underprivileged. If these people are not to receive the benefit of the best legal aid advice, that is a very unfortunate result. So can the noble and learned Lord the Lord Advocate explain whether or not it is the intention of the Secretary of State to give full weight to and take proper account of the fees which may be eligible from clients who are not on legal aid, whether it be the Government themselves, insurance companies or whatever?

Lord Ross of Marnock

Before the noble and learned Lord the Lord Advocate replies to that, has my noble and learned friend read the Second Reading speeches that were delivered when we introduced legal aid? I was there, and I believe I even made a speech. I can remember the great panegyrics about the great traditions of the legal profession in Scotland, where they saw that eveyone was defended and where the best lawyers worked for nothing. Now he tells us that even if they are to get legal aid, if they do not get enough they will not work for legal aid fees. I do not believe that. I still hold to the great traditions of the legal profession in Scotland, which saw to it that people were defended adequately and that able lawyers did not run away from what were their legal obligations in respect of the poor.

Lord Wilson of Langside

I must say that I had resisted the temptation to say what the noble Lord, Lord Ross of Marnock, has said, but I find some aspects of what the noble and learned Lord, Lord McCluskey, has said in this matter about the attitude of the profession depressing. I do not think that it is well founded. At this late hour, and because the House has other business, I will say only on this aspect of the matter, though I would happily develop on it on another occasion, that I entirely agree with the sentiments expressed by the noble Lord, Lord Ross of Marnock.

Lord McCluskey

I constantly seem to be annoying people sitting behind me or beside me, which is unfortunate. It is my misfortune to have to come here and tell your Lordships the truth. We did have an excellent tradition in Scotland, which was referred to no doubt in appropriate terms way back in 1949 in the legal aid debates, when I was not interested in these matters. That was a tradition that nobody appeared in the High Court without the representation of counsel: but in those days before legal aid, which counsel went?

I can remember the Lord Advocate and I as very young people who did not quite know which door took you into the court and which into the public lavatory. In that court it did not make too much difference because of the decor! I can remember him and me turning up—and this was a High Court case of great importance, with three accused—and we stood outside the court with "Have wig and will appear" looks on our faces. Out came the Clerk of Court and said, "There are three men here. I want one of you to defend two, and the other to defend the one". The Lord Advocate got the two and I got the one. We picked up the indictment, and, having got it the right way up, we went into court to appear on behalf of these people. The Lord Advocate's clients were extremely fortunate, because the Crown in that case had served a list of previous convictions for his Client A on Client B, and had served the list of previous convictions appropriate to B upon A, with the result that the Lord Advocate was able to persuade the judge that they were both to be treated as first offenders.

It so happens that in that particular case the two gentlemen concerned were given the best of service by an excellent advocate. But that was the system. If you had nothing else to do you went to Glasgow with your wig and gown on and the Clerk of Court summoned you in. That is the system which we have happily abolished. I hope I am wrong in thinking that there will be a drift away, but even Scottish lawyers are economic men, and, if there are better pickings on the private side of the fence, then in all honesty I have to say that not I, but they, will go for the private pickings, and over a period of time that could be unfortunate.

Lord Fraser of Tullybelton

I think that the noble and learned Lord, Lord McCluskey, is being a trifle cynical in his description of what went on in his young days. It was true that the young advocates did a lot of the work, but when there was an important case—particularly in murder trials—they always obtained the assistance of a senior and experienced counsel who was there to give his services free. That was a well-known practice. It is a little unrealistic to look back to those days. I do not know the number of criminal prosecutions or civil litigation actions in those days compared to now, but it was enormously less. It is one thing to carry a free system of legal aid on the shoulders of the legal profession when there are few cases, and quite another thing with the enormous number of cases that we now have.

When the legal aid system was introduced in the way that the noble Lord, Lord Ross of Marnock, mentioned, my recollection—I am open to correction—is that the fees were then only 85 per cent. of the normal fees. The fees on legal aid were 85 per cent. It was accepted as a general practice partly because of a sense of duty—not entirely—and nearly all members of the Faculty of Advocates put themselves on the list as being available to work for legal aid fees. There may have been a few who did not, but very few. That was accepted as a public duty. I would imagine that that is still the case.

If the fees are fixed at a level not too far below the normal fees, I should think that the likelihood is that that system would continue. If the legal aid fees were cut down to half the ordinary fees, that might break down, and you cannot blame people if you go that far. I should have thought that the noble and learned Lord, Lord McCluskey, was unduly cynical in his outlook on the position. If we got the fees fixed as a prevailing practice at about 85 per cent. of the normal fees, the system would probably continue, and all the lawyers, good and not so good, would make themselves available on the legal aid system as they have done hitherto.

Lord Hughes

The noble and learned Lord, Lord Fraser, has referred to the 85 per cent. At one point he talked about normal fees, and at another point I think he talked about the ordinary fees. My noble and learned friend Lord McCluskey mentioned the fees that might be paid on the private side. Surely in arriving at what is a normal or an ordinary fee one does not necessarily take into account the very high fees which may be earned by certain people. It is well known that not everybody in the profession commands the same fees in the private market as everybody else.

Presumably there is some system perhaps of leaving out those poor people at the bottom who take a ridiculously low fee—if there is such a person—and those people at the top who command, and get, a ridiculously high fee, so that some sort of an average comes out which can be regarded as the norm for the purposes of comparison with the legal aid fee.

Lord Wilson of Langside

I think that the noble and learned Lord, Lord Fraser of Tullybelton, really brought the matter into a better perspective than before. He was right when he spoke about what happened in 1949 so far as civil legal aid was concerned, and the attitude of the profession then towards it. But it is relevant to point out that the position under criminal legal aid is somewhat different, because that was not introduced until October 1964.

My impression was that the fees which were then fixed under the criminal legal aid scheme were substantially higher than those which would have been paid by what you might call the private criminal. That is where the trouble with which we have had to deal is concerned. I have seen in my time accounts for criminal legal aid work which made my hair stand on end—and I had hair at that time! This is a matter which must be got into perspective so far as criminal legal aid is concerned. The civil problem was an entirely different one, and we ought not to lose sight of that.

Clause 3 agreed to.

6.48 p.m.

Lord McCluskey moved Amendment No. 13:

After Clause 3, insert the following new clause:

("Taxation of defence accounts.

. In prescribing general principles in accordance with paragraph (d) of section 14A of the Legal Aid (Scotland) Act 1967, the Secretary of State may direct those responsible for the assessment and taxation of fees and outlays or for the review of such assessment or taxation after criminal trials on indictment, in considering the fees and outlays allowable to the defence in respect of precognoscing witnesses on the Crown List, to have regard to the fact that the prosecutor has, in any particular case, supplied to the solictor acting for the defence a copy of any statement of precognition of any witness whom the Crown intends to adduce:

Provided that the Secretary of State shall direct those responsible for such assessment, taxation or review not to have regard to such fact unless—

1. (a) the prosecutor has suplied such copy statement of precognition within 48 hours of the service of the indictment, and
1067
2. (b) the trial judge has ruled, on the motion of the prosecutor made at the conclusion of the trial, that it was unnecessary for the defence to precognosce separately the witnesses whose copy statement or precognition was so supplied.")

The noble and learned Lord said: I beg to move Amendment No. 13. I am afraid that I am riding a hobby horse in proposing this particular amendment. I have on a number of occasions, both in the House and elsewhere, advocated that one way to save time and money in the conduct of criminal trials in Scotland is for the Crown to make available to the defence copies of the statements of the witnesses that the Crown intends to lead at the trial.

The witnesses really fall into two categories. There are essentially professional witnesses like policemen, forensic scientists, photographers, and people of that kind, who are, in effect, paid by the state in order to do their work, and they provide statements. Then there are the lay witnesses. So far as the professional witnesses are concerned, as I said in connection with an earlier amendment, some at least of those witnesses are witnesses whose evidence will not be in dispute. It should be possible for the Crown, by providing the defence with copies of their statements, to enable the defence to say, "We do not need to precognosce and take a statement from this witness".

To encourage the Lord Advocate to press ahead with his present steps to bring about something like that, I have tabled the amendment, which happens to be designed so as to contain a sanction: if the defence have been faced with a statement which shows that the witness is entirely formal, or will be giving evidence on a matter which will not be in dispute, then if the defence choose to incur the expense, on legal aid, of precognoscing or taking a statement from that witness, the trial judge (who would be the person knowledgeable about what the true situation is) can rule at the end of the trial that it was unnecessary for the defence to precognosce that witness—he would not do so, of course, without strong grounds—and if he so ruled, it would be possible for those responsible for the assessment of the taxation of fees to disallow the fee for the precognoscing of that witness. The idea is, therefore, simple. It encourages the saving of money and it is intended to give a boost to the Lord Advocate's declared intention—it was declared, for example, in yesterday's Scotsman—to reduce the cost of criminal trials.

Lord Mackay of Clashfern

I am grateful to the noble and learned Lord, Lord McCluskey, for this suggestion, and it is one which we will consider further in relation to the study of what can be done in the way of handing out precognitions. One aspect of it is worthy of note and is new to me, and that is involving the prosecutor in matters connected with the legal aid system. So far, that has not happened, and my impression is that it would be undesirable, but that is a minor part of this proposal. I would certainly mean to have this in mind when we are studying further the possibility of handing out Crown precognitions more generally. On occasion it has happened that Crown precognitions have been handed out, but experience has not always been that the trial has thereby been greatly shortened, but we are not particularly discouraged by that experience. Our intention is to consult on the matter of what could be done in this area as soon as other tasks enable us to do that. I hope that, in the light of that explanation, the noble and learned Lord will withdraw the amendment.

Lord McCluskey

I am sure the Lord Advocate is doing what can be done here and I hope his efforts will be crowned with success. I appreciate the point that the prosecutor should not be involved with legal aid, but I am anxious to ensure that the Lord Advocate and his prosecutors do what they can to render it unnecessary for the defence to burden legal aid with the expense of precognoscing witnesses whose evidence is entirely formal. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.54 p.m.

Lord McCluskey moved Amendment No. 14:

After Clause 3, insert the following new clause:

("Written submissions.

. In any proceedings in any court in which the parties are at issue over any question, including any question of law, relevancy, competency or procedure, arising in the litigation, being a question which the court could competently be invited to decide after hearing oral submissions thereon from the parties or their representatives, the parties may by joint motion invite the court to decide the question on the basis of written submissions (lodged in a form prescribed by the appropriate rule-making body), and the court shall be free to do so and, if it does so, shall decide the question within 21 days unless, within that period, the court requires the written submissions to be amplified or clarified and for that purpose puts the case out on a "By Order" roll for oral submissions.").

The noble and learned Lord said: This new clause has the sidenote "Written submissions". In courts in Scotland virtually every question which has to be decided at present is decided by the judge after hearing oral submissions by the parties if the question is in dispute. I suppose there are procedural rules which would allow what the new clause is designed to achieve—namely, that the parties should make written submissions to the court—but if there are, they are certainly not used.

I have direct experience of being involved in cases, and of observing other cases, in which the parties—having arranged for a date to appear before the court and argue a question of law, or some other question—turn up and, no sooner has the argument begun, or perhaps even before it has begun, they manage to get together and discover that they have no real argument. The court having met to consider the matter, it rises, it does not sit, the parties depart and a great deal of time is wasted. It may be that the parties have sat in court for hours waiting to get in to begin the argument, only to find once they have started that they do not have a real argument.

It should be possible for busy practitioners—or, indeed, for any practitioners—to agree on either side of a case that they would like the court to decide the question on the basis of written submissions. I have no doubt that the noble and learned Lord, Lord Fraser, can confirm that the written case which Members of the House of Lords, sitting as a court, receive is of considerable assistance to them in understanding and focusing on the issues before the court. When the question is a relatively simple and compact one, it must be possible for the parties to agree to put their arguments before the court in written form.

I do not want to make it compulsory on anyone. The only compulsory part of the proposed new clause is that if the parties themselves agree to make written submissions to the court, then the court must decide the question within 21 days. There is no magic about that time, but one has heard of cases, some of them quite shocking, where, in relatively simple matters, the judge has retired to consider the question and months—in some cases more than a year—have elapsed before he has decided the question. Therefore, if the parties want a quick decision and they do not want to be exposed to the vagaries of waiting their turn to get a diet before the court, they could adopt this procedure. It would save money, it would save the time of the court and the time of practitioners and it might even be of assistance to the judges when they see with some clarity what the written submission is. I beg to move.

Lord Mackay of Clashfern

It may be doubtful whether the proposed new clause comes within the scope of the Bill, but I should be happy to deal with it in the way I have suggested dealing with some similar matters, and that is to bring it to the attention of the appropriate rule-making bodies. I would think it perfectly competent to do already what the noble and learned Lord is suggesting. If he wished to suggest in a case he was in that, instead of having the privilege of addressing the court, it would be done on paper, the court could do that. I do not know whether he has tried and failed or whether this is his first suggestion of it here. In any case, I feel satisfied that it is the sort of suggestion that is best dealt with by the courts, who have power to deal with it in this way already if they wish to, and I shall bring it to their attention.

Everything the noble and learned Lord said about the amendment—indeed, about some of the others we have discussed—suggests that the great way to save court time and the time of others affected by court proceedings is for the parties to get together earlier so that they may discuss the case and see what is between them in the way of controversial matter. That is what I have been trying to bring to the attention of the profession in Scotland in relation to criminal prosecutions more or less since I took office, and I only hope that that advice will be heeded. I hope that, with that assurance, the noble and learned Lord will feel able to withdraw the amendment.

Lord Wilson of Langside

Would the noble and learned Lord agree that we need less rules to provide for the saving of time and speeding up of procedures and more encouragment given to the profession to use the provisions that exist? We have in all our courts a host of provisions designed to save time. The difficulty is getting the profession to use them.

Lord Mackey of Clashfern

If the noble and learned Lord has any suggestions as to how we could overcome the difficulty, I, for one, should be very glad to hear them.

Lord McCluskey

The purpose of the new clause was to encourage parties to use this type of procedure. The Lord Advocate tells me that I can now agree to put in written submissions in place of oral submissions. I wonder whether he can point to some rule of court where that is specifically allowed. It may well be possible—I do not know—but it is certainly never in fact done. All I am concerned about is that if such a provision is put into the statute, or even if the court can be persuaded to insert an express provision in the rules of court, parties will see it, and if it is given sufficient publicity through the ordinary learned journals of the profession, parties will be able to employ it. I want to give that kind of encouragement to this type of procedure. I should have thought that if could be done, the court might consider making a new rule of court governing such procedure, and a similar rule would apply in the sheriff court.

I agree with the Lord Advocate that it is desirable that the parties should get together early, but it is a pious hope if one simply gives lectures to the profession in general, saying, "Get together early". It is necessary to provide, set up, and publish machinery, preferably with a sanction on expenses of the kind that I tried to write into some of my other amendments. If one does that, one will begin to make progress. However, I am content that the matter should be taken forward in the way that the Lord Advocate has suggested in his reply, and accordingly I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 [Power of Secretary of State to regulate court fees]:

Lord McCluskey moved Amendment No. 15:

Page 4, leave out lines 26 to 29 and insert—

("(4) No order shall be made under this section unless a draft of it has been laid before Parliament and approved by a resolution of each House of Parliament.")

The noble and learned Lord said: Your Lordships' Committee will be glad to hear that this is the last amendment of any substance. Clause 4 is concerned with what are known as the fee fund dues, which are sums of money paid by the litigants into court for the privilege of proceeding with the litigation. In 1949, when I was an apprentice, and in the other place my noble friend Lord Ross of Marnock was addressing himself to questions of legal aid, a summons was raised in the Court of Session and a fee of £1 was paid. Now I think that one pays £28 for the privilege. So there has been a very considerable increase. But even only 10 years ago the cost of signeting a summons—the amount of fee fund dues—was but £4; so it has gone up sevenfold in 10 years. That applies also to virtually all the other fee fund dues.

The fee fund dues are quite simply a tax upon litigation. The money contributed by the litigants in this way does not, of course, meet the cost of running the courts. I do not know where the money goes; presumably straight into the Exchequer. The increases that have taken place in the last 10 years have been very substantial indeed. I have mentioned that in relation to a summons the figure has gone up from £4 to £28, which is very substantial. In the case of a petition presented to the court—against, for example, the return of a Member of Parliament for a constituency—that charge, too, was £4 in 1973, and is now £28. So there seems to have been a general sevenfold increase over a period of 10 years.

The clause gives power to the Secretary of State to make increases, and from what was said in the first Standing Scottish Committee it appears that he intends to use that power. As I read it—though I may be quite wrong, because I do not pretend properly to have understood what was said—the Secretary of State intends to achieve quite considerable increases over the next four or five years, and I suspect that in about three years' time the cost of signeting a summons will be in the order of £50 or £55.

In my submission Parliament should have the final say upon tax increases—and these are tax increases. Parliament should be very concerned to ensure that this form of taxation does not rise so much that it stops people litigating, even when they believe that they have a just cause. In any event, the Government's intentions in this matter are very unclear, from what was said in the other place, and I should like the Lord Advocate to clarify them. Accordingly, I have put down the amendment, and I hope that it is an appropriate vehicle by which the Lord Advocate can explain the position. Having regard to what he said in relation to an earlier amendment of mine, I do not think that in due course I ought to press the present amendment, but perhaps the Lord Advocate will explain what is the position in relation to the questions that I have mentioned. I beg to move.

Lord Mackay of Clashfern

With regard to this particular amendment, I would suggest that the provision in the Bill for negative procedure is appropriate. The right of Parliament to take cognisance of what the Secretary of State is proposing and to take the final decision upon it is preserved by that procedure. So far as the exercise of the power is concerned, I do not think that I can add anything to what was said in the other place in relation to the intention. The position is that the Secretary of State is asking Parliament for this power, and he will not use it except in a situation in which when he adopts the negative procedure he is subject to parliamentary scrutiny. I have no doubt that his proposals in relation to any particular change will be the subject of consultation before he proceeds. I believe that it would not be right at the moment for me to try to forecast with any degree of precision what would be the result of the exercise of the power if Parliament gives it to the Secretary of State.

Lord McCluskey

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 agreed to.

Clauses 5 and 6 agreed to.

Clause 7 [Citation, commencement and extent]:

Lord McCluskey had given notice of his intention to move Amendment No. 16:

Page 5, line 1, at end insert ("Evidence, Procedure").

The noble and learned Lord said: As I previously explained, this amendment was designed to enable me, without offending the Committee, to make certain proposals regarding amendments relating to other parts of the Bill. In the event those amendments have not been insisted upon, and therefore it is unnecessary for me to move Amendment No. 16.

[Amendment No. 16 not moved.]

Lord McCluskey had given notice of his intention to move Amendment No. 17:

Page 5, line 1, at end insert ("Evidence").

The noble and learned Lord said: On an earlier occasion the Lord Advocate was kind enough to explain why the word "evidence" was not included in the Title. I am not sure that I agree with that explanation, but I do not ask him to repeat it. Accordingly, I do not propose to move this amendment.

[Amendment No. 17 not moved.]

[Amendment No. 18 not moved.]

7.9 p.m.

Lord McCluskey moved Amendment No. 19:

Page 5, line 12, at end insert— ("Provided, however, that no order made under this subsection appointing a day for section 1 of this Act to come into force shall be made unless a draft of it has been laid before Parliament and approved by a resolution of each House of Parliament.").

The noble and learned Lord said: This amendment reflects my concern, and that of many people, that the sheriff courts will not in fact be able to handle divorce cases efficiently from the day that the Government currently have in mind. I believe that the Government have in mind that divorce actions should be competent in the sheriff court from about 1st January 1984, but no doubt the Lord Advocate will correct me if I am wrong.

I do not doubt, and never have doubted, that, with the additional sheriffs and additional staff that they are to have, the sheriff courts will themselves be able to handle the divorces. They will be able to receive the affidavits, the summonses, and the appropriate papers, consider them, and decide whether to grant decrees of divorce. But what I believe has been neglected in much of the consideration is the fact that all divorce actions which involve children or money bring in their train considerable incidental procedure. That incidental procedure is very time-consuming in the open court itself. It takes the time of the sheriff and it delays the start of other business.

I am concerned that in the consideration that I have seen reflected in the public debates on this Bill attention has not been properly given to the effect upon the ordinary working of the sheriff court of the transfer to that court of the incidental business which comes in the wake of divorce cases. Accordingly, the purpose of this amendment is to enable the Committee to be satisfied before Clause 1 is brought into force that the Government have taken proper steps not just to look after the divorces themselves but to look after the incidental procedure. I beg to move.

Lord Mackay of Clashfern

We have endeavoured to take account of the incidental business—very important business—that will be generated by the transfer to the sheriff court of a number of divorce actions. As I say, I do not think that there is anything further that we can do until the matter is really ready to start. I do not see how this particular amendment could assist in that process. The method of dealing with the matter provided in Clause 1 makes it possible for people, if anything should go wrong—which we do not anticipate for a moment—to have the option of the Court of Session. I said earlier in answer to the noble Lord, Lord Ross, that if there was a particular delay in one sheriff court it would be possible in that case to have the alternative. But I do not anticipate that as likely.

However, we have done our best to satisfy ourselves that this will work when it goes ahead. I do not believe that introducing another procedure will advance the matter. I hope that, in the light of these explanations, the noble and learned Lord will feel able not to press this amendment.

Lord McCluskey

The noble and learned Lord the Lord Advocate says that he does not see how this particular amendment could assist. But, of course, I do not believe that the amendment of the Bill would assist him to get matters right. What I am suggesting is that because there are real grounds for concern that the sheriff courts will not be able to handle this business from the day to be appointed, and because there may be serious interference with the rest of their business, then it appears to me that it would be sensible for an amendment of this kind to be made so that the Government can explain to your Lordships that all these difficulties have been overcome. However, I do not propose to press the matter at this time of night. Accordingly, I beg leave to withdraw this amendment.

Amendment, by leave, withdrawn.

Clause 7 agreed to.

Schedules 1 and 2 agreed to.

In the Title:

[Amendment No. 20 not moved.]

House resumed: Bill reported without amendment: Report received.