§ 7.11 p.m.
§ Lord Cameron of Lochbroom
My Lords, I beg to move that this Bill be now read a second time. The purpose of this Bill, which extends to Scotland only, is to effect desirable improvements and to remove anomalies over a wide area of Scottish law. To make efficient use of parliamentary time for many important changes which do not justify a Bill of their own requires recourse to such a Bill at certain periods. It is needed also to enable effect to be given to certain unimplemented reforms.
The changes and reforms made by this Bill can be split into two broad types. The first consists of those which address prominent issues or will have a wide effect. Some of them derive from the four reports of the Scottish Law Commission which are implemented by this Bill. At this stage I should like to pay a very warm tribute to the Scottish Law Commission for its extensive work in these fields, and especially for the lucidity of its reports, and, in certain cases, its drafts of Bills attached to those reports.
The second type of amendments are those which are rather technical or are of benefit only to a relatively small number of people. This does not reduce their importance for the people affected, or generally, but I hope noble Lords will be content if I concentrate on the first type and do not describe what may be termed the legal nooks and crannies to be found in this Bill.
In the first part of the Bill, which deals with leases, Clauses 4 to 7 increase the protection given to tenants 1019 under industrial or commercial leases against eviction. These clauses derive from the Scottish Law Commission's recommendations on irritancies in leases; that is to say, the remedy which is given by law or by contract whereby an owner of land can ensure that the land is restored to his possession when a tenant has been unable, whether through commercial failure or otherwise, to perform his obligations as possessor. In other words, it is a remedy that constitutes a termination of the lease.
First, a landlord would be unable to evict a tenant for failing to make payment due under his lease without giving at least 14 days' written notice, and hence 14 days to pay. Secondly, the landlord would not be entitled to terminate the lease on the basis of any action or omission by the tenant if no fair and reasonable landlord would seek to do so.
Clauses 8 to 13 reform various aspects of the law on contracts and obligations. In particular, Clauses 8 and 9 implement the Scottish Law Commission's report on rectification of contractual and other documents. At present the courts in Scotland can correct defects in documents which appear on the face of the writing, but they have only very restricted powers to deal with latent defects, such as the insertion of the wrong person's name. The Bill gives the court power to rectify documents, other than wills, which do not properly express the intention of the party or parties concerned, provided that the interests of third parties are protected. In its report on negligent misrepresentation the commission recommended that people should be able to claim damages if they were persuaded to enter into a contract by negligent misrepresentation by another party to the contract; for example, if they bought a business because the seller had negligently over-estimated its profits. At present someone can claim damages in such a situation only if he can prove fraud, which it is often difficult or impossible to do. Clause 10 implements those recommendations.
Clause 11, which deals with the countermanding of cheques, may be of more general interest. In Scotland if someone stops a cheque, the bank, when the cheque is presented, places funds representing the amount for which the cheque was drawn into a suspense account. The funds are frozen until the dispute between the drawer of the cheque and the payee is resolved, or until five years have passed. This can cause problems, especially for the person drawing the cheque. Clause 11 provides that the bank will treat a stopped cheque when it is presented as if it had no funds to make payment, and the funds covered by the cheque will remain in the drawer's account.
Clause 13 clarifies some of the more complex provisions of the Matrimonial Homes (Family Protection) (Scotland) Act 1981, mainly to ease problems for conveyancers. We are confident that, especially as a result of changes made in another place, this clause represents a substantial improvement.
Clauses 14 to 23 deal with various matters concerning the civil courts and their jurisdiction and procedure. The most significant is Clause 18, which introduces a simplified procedure which, in general, must be used in certain summary cause cases, to be known as small claims cases, in the sheriff court. The 1020 precise description and financial limits for small claims cases will be set out in an order, but essentially they will include actions for payment of money, for delivery of goods, and actions relating to tenancy agreements or to reparation. The more complex summary cause actions such as multiple poinding or defamation will be excluded.
The emphasis in small claims proceedings will be on simplicity and informality. The claimant will be able to pursue his case himself, without necessarily having to employ a solicitor, and indeed party litigants can have the summons served for them by the sheriff clerk. The existing rules of evidence and procedure will be relaxed; and unless either party has deliberately abused the small claims procedure, awards of expenses will be restricted so that all parties may know in advance the maximum amount which can be awarded against them if they lose. Indeed, for very small claims no expenses will be awarded at all.
The clause also contains provision for appeals to the sheriff principal from the decision of the sheriff, and for the transfer of cases between small claims procedure and other forms of civil procedure in the sheriff court. The rules for the procedure for small claims will be made by the Court of Session, on the recommendation of the Sheriff Court Rules Council.
The other clauses within this group deal with a mixed bag of changes, of which I should mention one or two. Clause 15 provides for the withdrawal in certain cases of the privilege against self incrimination in criminal activity. This is to apply in specified civil proceedings concerned with what is now generally termed infringement of intellectual property rights such as patents, trade marks or copyrights. Clause 19 gives the court further power to order disclosure of the identity of potential defenders and witnesses in civil proceedings already before the courts, or which are likely to come before them.
A number of reforms in social work legislation are made in Clauses 24 to 29. These enhance the ability of children's hearings and social work departments to promote the welfare of children. In particular, Clause 25 extends the existing powers of the sheriff to authorise the detention in a place of safety of children in need of care and protection. The place of safety in which the child is detained will generally be a foster home or a residential establishment, depending on his needs. The object of Clause 26 is to put beyond doubt that while the warrant issued prior to final disposal of a child's case by the children's hearing or sheriff sanctions the use of secure accommodation, it cannot require it. The actual decision on the use of secure accommodation is given to the head of establishment with the agreement of the director of social work.
Clauses 30 to 32 amend legislation on crofting and valuation of sheep stocks. Among other things they will allow the Scottish Land Court to award interest on payments of compensation to crofters whose land has been resumed by the landlord, thus discouraging landlords from delaying payment.
Clauses 33 to 46 deal with the criminal courts and their procedure, the law of evidence, and prisons. Included is what some noble Lords may regard as the most interesting clause of the Bill—Clause 36—which implements the Scottish Law Commission's report on 1021 evidence in cases of rape and other sexual offences. At present the complainer in a sexual offence case not only has to give evidence about what happened, which can in itself be distressing, but may also be subjected to detailed questioning about sexual behaviour and history. This particular line of questioning was found by the Scottish Law Commission to go on many occasions beyond the bounds of anything relevant to the charge itself. Although this questioning has been justified on the grounds of attacking the complainer's credibility as a witness, frequently it seems to be calculated simply to distress the witness. It is desired to prohibit such unnecessary questioning, which can be embarrassing and hurtful, and in some respects to restore the position which was established in certain well known cases decided at the end of the last century. It is imperative, however, that the accused should be able to put forward a full and proper defence and to lead any relevant evidence. Clause 36, therefore, allows specific exceptions to the prohibition and in addition gives the judge a discretion to allow questioning or evidence where it would be contrary to the interests of justice to exclude it. I think the clause as it now stands achieves a proper balance among all interests—those of the accused, the complainer and the wider public interest.
The Government are deeply concerned about the pernicious effects of drug trafficking. This anxiety is, I know, widely shared, and while legislation cannot of itself eradicate this evil, it is important that the courts should have adequate powers to deal with offenders. Clauses 39 and 40, therefore, provide for fines to be imposed on those imprisoned after being convicted on indictment of a drug trafficking offence involving Class A controlled drugs, unless the court thinks that it would be inappropriate for any reason. Such a fine would be in addition to any sentence of imprisonment and would be set at a level which would have regard to profits likely to have been derived from the offence. If the fine was not paid, the offender would be imprisoned for a further period in addition to the original sentence.
I should also mention Clause 35, which gives suspects arrested or detained in connection with terrorist offences the right to have someone informed and to consult a solicitor, subject to delays in certain circumstances. This implements recommendations made in Lord Jellicoe's review of the operation of the Prevention of Terrorism (Temporary Provisions) Act 1976.
Clause 43 makes a small but significant amendment to the law on the sentencing of young offenders. It prevents the court, except in special circumstances, from sentencing a young offender to a second or subsequent term of detention in a detention centre. Experience in recent years has shown that the detention centre regime, sometimes known as the short, sharp, shock, has proved not to be effective in dealing with inmates who have been through it before; and their presence has given rise to substantial problems in management. The intention is that normally the detention centre sentence should be used only once.
With Clauses 47 to 59, and the schedules, we come to possibly the most miscellaneous part of this Bill and I do not propose to outline their various effects, 1022 although I am sure that noble Lords will wish to examine some of them in Committee. However, I make one exception; namely, that I shall be proposing one significant amendment at the Committee stage. As noble Lords may recall, my noble and learned friend the Lord Chancellor announced during the Committee stage of the Administration of Justice Bill that it would be amended to allow solicitors in England and Wales to incorporate themselves into companies under the Companies Act. These amendments have now been tabled in another place. I shall be bringing forward amendments to the Solicitors (Scotland) Act 1980 to make broadly the same provision for Scottish solicitors. These will be in addition to the minor improvements to the Solicitors (Scotland) Act which are covered in Clause 55 and Schedule 1, paragraph 2, of the Bill.
I am confident that the measures in the Bill will be widely welcomed in Scotland and I commend them to your Lordships' House. My Lords, I beg to move.
§ Moved, That the Bill be now read a second time.—(Lord Cameron of Lochbroom.)
§ Lord Morton of Shuna
My Lords, I welcome this Bill, which has a multitude of provisions, most of which are not connected to each other. I associate myself with the remarks made by the noble and learned Lord the Lord Advocate on the work of the Law Reform Commission. If I may, rather than deal with everything I shall deal with three specific items.
The first might well be what is regarded as a nook or cranny, but I suggest that it is of some constitutional significance. Clause 45 amends the Criminal Procedure (Scotland) Act 1975 and gives, if I read it correctly, the Secretary of State the power, without reference to any court, to impose on a person—that is, a child after he has served his sentence of detention—either a supervision requirement of 12 months or a period of three months' detention, or both. There does not appear to be any right of appeal against the Secretary of State's decision. It is very strange to have a member of the Executive given a power, in effect, to imprison someone without reference to a court.
The existing Section 206, which comes immediately before the proposed Section 206A, applies to a person who has served part of a sentence of detention and has then been released on licence. That person who has not served a complete sentence is given a right, if the Secretary of State recalls him to detention, to go to the Parole Board, which can overrule the Secretary of State. It seems strange that someone who has served a complete sentence should be subject to the power, not of a court but of a member of the Executive, in effect, to imprison him again. I hope that your Lordships will eventually accept amendments to give, if not the right to a court, at least the right of appeal to the court.
Secondly, there are the provisions relating to drugs in Clause 39 of the Bill. This clause is difficult to understand. From the debates in another place it appears that it is almost a form of holding operation until the Law Commission reports on the problem of confiscation and forfeiture. It provides that in the case of a person convicted of supplying or having the intent to supply a Class A drug the court shall, unless satisfied that it is inappropriate, if it has already sentenced the 1023 person to imprisonment, "also impose a fine". Under subsection (2) the fine is apparently to be measured having regard to,any profits likely to have been made from the crime … of which the accused has been convicted".That provision applies only to Class A drugs. I find it surprising that it does not apply to both Class A and Class B drugs.
As your Lordships will recollect, the whole problem of forfeiture arose out of the "Operation Julie" case, which concerned LSD, which, if my memory is correct, is a Class B drug. Last week a case finished in the High Court in Edinburgh concerning a large quantity of cannabis, which again is a Class B drug. Those are the type of cases in which vast profits are made or potentially made by the accused, and yet they would be entirely excluded from the Bill. I find that surprising.
What does the phrase, "likely to have been made from the crime", mean? Does it mean likely to have been made from the crime by all the persons involved in it, or only likely to have been made by the one accused who is to be fined or who may possibly be the only one who has been apprehended and convicted? If a carrier is intercepted with a quantity of heroin, is it his profit that is to be considered, or the profit of the uncaught supplier, or the profit of the dealer to whom he was to deliver the heroin; or is it to be the quantity that the courier was carrying or the whole load that may be concerned? Is the "likely profit" to be the likely profit that would have been made from the crime had the accused not been apprehended, or is it the likely profit that in fact will be made from the crime, notwithstanding the fact that probably the police will have taken possession of the Class A drug?
Most cases in Scotland where there has been a conviction for supplying or intending to supply a Class A drug have, at least recently, concerned people at the very bottom of the chain—the addict, usually living in a housing scheme, who finances his addiction by supplying others and gets caught with a relatively small quantity. As I am sure the Lord Advocate will agree, such people will receive heavy sentences. Are they to be fined as well? If their only income is supplementary benefit, which of course ceases on imprisonment, where will they get the money to pay the fine; or, in effect, is the fine merely an additional sentence of imprisonment because of failure to pay the fine? In my view Clause 39 has considerable difficulties.
The third, and, your Lordships will be pleased to hear, the last, clause to which I intend to turn this evening is Clause 22. This allows a retired judge who is under 75 to come back and as a temporary measure act as a Court of Session or High Court judge. If in future judges show more of a tendency to retire before they are 75 that may be helpful. At the moment there is one retired judge who is qualified, and I am uncertain as to what his intention would be if asked. As a measure to deal with the severe shortage of judges in the Court of Session and the High Court it seems totally inadequate, with respect.
1024 I should like to take the opportunity of this Bill and this clause to try to impress on your Lordships and on the Lord Advocate in particular the fact that there is an urgent need for an increase in the number of judges, permanent and full-time, in the Court of Session. If we are to have this power in an emergency to use retired judges, I can see little reason for not following the English practice also of, where necessary, using suitably qualified members of the Faculty of Advocates as deputy judges.
The increase in crime, especially in drug offences, and the reforms in criminal procedure in the 1975 and 1980 Acts have considerably increased the amount of judicial time required on criminal work. In my estimation the amount of court time spent on crime has at least doubled since about five years ago. The Criminal Appeal Court in Edinburgh on average now sits two weeks out of three, when four or five years ago it was sitting one week out of three. I am informed that at any time now one can expect six judges to be engaged in trying criminal cases, quite apart from the judges sitting on criminal appeals. Previously the average was perhaps two or three.
The effect of that on the civil business in the Court of Session has been disastrous. Four years ago if a civil case was ready for proof one could expect a delay of four months before the date of the proof. I am informed that the period is now 14 months. The situation is the same for appeals from civil proofs. The delay is now of the order of 15 months. That delay is prejudicial to justice, and it will get worse. Out of revaluation, which has not been welcomed by every ratepayer in Scotland, there will be a heavy load of appeals for the Valuation Appeal Court to be dealt with by the same judges.
The procedure recently introduced for judicial review will clearly provide new demands on judicial time both at first instance and on appeal. Already cases set down for hearing have had to be cancelled because of the lack of judges. Last term four appeals which had already been waiting for over a year for their date had to be cancelled to allow the three judges in each case to hear cases at first instance. Those cancelled appeals will no doubt have to take their turn again.
As the noble and learned Lord the Lord Advocate will remember, there is a heavy arbitration concerning the building of a hospital. The dispute has been going on since 1974. The arbitration concerns a building contract where about £16 million is in dispute. Under the procedure that they were entitled to use, the parties asked, when the arbiter became unavailable, for the appointment of a judge as arbiter and were refused because there was no judge available.
Quite apart from their criminal and civil business, judges are required for Parole Board work, for employment appeal tribunals and for other conferences. The effect of their absence on crime and for these other purposes puts on the remaining judges doing civil business so much incidental business that each proof cannot get the five hours it should be allowed each day and on average something like one to one-and-a-half hours of each five-hour court day is being lost. This of course adds considerably to the cost to the litigants and, if the litigant is legally aided, it adds to the cost to the state.
1025 In crime, the position is worse. Because of the shortage of judges, there is a rule that no judge must be kept unemployed. Thus the Crown always keeps a whole case ready, waiting, in case the case going on collapses. The cost of this, of having to have, say, 100 witnesses and solicitors and counsel present to do nothing is, I suggest, very much higher than the cost of the judge for the day.
For these reasons, I urge that there is an urgent need for a considerable increase in the maximum number of judges that can be appointed. However, quite apart from that, I suggest that Clause 22, as well as giving the power to appoint a retired judge, should also give power to appoint as a deputy judge, in the emergency situation that can arise, a member of the Bar who is qualified to be appointed to the Court of Session Bench. This system would appear to work in England and there is no method now in Scotland whereby any member of the Bar can have any practical experience of judicial work since the abolition of part-time sheriff principals.
With those remarks, I welcome the Bill, which I hope your Lordships may have an opportunity, and will take it, to improve at the next stage in its proceedings.
§ Lord Wilson of Langside
My Lords, the House will surely be in debt to the noble and learned Lord the Lord Advocate for his careful and thorough presentation of this remarkable Bill. Perhaps I may start where the noble Lord, Lord Morton of Shuna, finished. I do not disagree with him, but I have some reservations about the plea for more and more judges. My experience has tended to be that judges and lawyers share the same occupational disease as so many other professional and other bodies. Their answer to every problem which is presented is more resources. More resources always means more money and more people, and sometimes they are not always available. This is merely a reservation. The noble Lord, Lord Morton, may be absolutely right. I am not in touch, as he is, with what is going on in the Court of Session, and with how overworked they are. However, whenever I hear this plea I have reservations because it is the plea which I imagine over the centuries, and certainly over my lifetime, has always been presented to those who complain about the law's delays. The matter of the law's delays has been one of my hobby horses for many years.
In 1971 we introduced the words "speed and efficiency" into the sheriff courts Bill, which was prepared by the Labour Government in 1970 and passed by the Conservative Government in 1971. It has not had the success that we hoped for it. However, I well remember discussing this matter with a legal luminary in Scotland, and he ventured the view that speed was the enemy of justice. It is of course perfectly true that speed can be the enemy of justice. If one rushes at a problem, in the courts and elsewhere, one may not obtain the right answer. However, in relation to the people about whom we have to be concerned —those who have to go to the courts, whether as accused people, as litigants, as jurors or as witnesses—it is not my impression that they feel that speed is the big problem.
1026 I think the Government and others must look around this problem pretty thoroughly and make sure that the administrative side of the business is efficient. Lawyers have never been particularly distinguished for efficient administration. The Government should look around the whole problem and not just give way with too great facility to the plea for more judges. However, as I have said, the noble Lord, Lord Morton, is more closely in touch now with the Court of Session than I am, and may be right.
This is a remarkable Bill. It has 59 clauses set out under some eight headings, all dealing with different branches of the law. They start at leases and they range through provisions relating to courts, the care of children and (skipping a few) the valuation of sheep stocks, and crofting tenure, and then criminal courts procedure and evidence in relation to sexual offences. It certainly ranges wide. It finishes on "Miscellaneous and general", and even that is pretty miscellaneous.
This is the Second Reading, and within each group of clauses there arise questions of principle which we could discuss and reflect upon. On the Bill as a whole, as I see it, there can be only one question of principle, and that is the question of whether it is appropriate and meet that a Bill of this wide-ranging character should appear on our statute book.
Up until 1977, which was when I ceased to be professionally involved in the administration of the law, there were frequent matters of criticism and complaint against Governments which sought to reform the law by means of these miscellaneous provisions Bills. As I recall it, almost every one excited criticism, mainly from the lawyers but not exclusively, and mainly from the academic lawyers but not exclusively. I must say that I used to think that there was not very much validity in this criticism. As your Lordships will appreciate, it was based on the point that it makes the law more difficult to ascertain on the statute book, more difficult to trace, and sometimes well nigh impossible for those who are not lawyers. It is difficult enough for the lawyers, who have to spend more time, for which their clients have to pay, to find the answer to the problems.
I used to feel that this criticism was overemphasised because of all the difficulties of getting things done. The necessity for reform is invariably very real, and one wants to get on with it instead of bothering about the form of the thing. However, I wonder whether this Bill is not going a little too far. I wonder whether the noble and learned Lord the Lord Advocate can tell us whether there is any precedent for such a miscellaneous Bill. With a bit of luck, he might be able to find one with which I had something to do in my time. Anyway, that is the first question that I should like to ask.
I should also like to ask him (although I do not know whether he feels it would be right for him to answer) to what extent he discussed the form that this remarkable miscellany has taken with those interested, with the Law Commission. It must have been a matter of concern to the profession. I wonder to what extent the alternatives, the possibilities of getting the legislation in some other way, were examined. I wonder whether every avenue, as the civil servants say, was explored 1027 before it was decided that this was the only answer. It is important that we should know this. I have taken a quick look through the statute book. I could not find among all the miscellaneous provisions Acts anything quite on a par with this. I do not know whether those of your Lordships who have not read the Bill appreciate the kind of problems that may arise from this method of putting statutes on the statute book. I wonder whether it would help if, for a moment or two, before sitting down, I ran quickly over the clauses.
On the first fasciculus of clauses, Clauses 1 to 7, dealing with leases, I see no point of principle to be concerned about. This is sensible reform, and I have no quarrel with it. Clauses 8 to 13 appear under the heading, "Provisions relating to other contracts and obligations". Clauses 8 to 11 seem to relate to other contracts and obligations. However, to my simple mind it is difficult to see how Clause 12, relating to "Limitation of defamation and other actions", and Clause 13, dealing with amendments to the Matrimonial Homes (Family Protection) (Scotland) Act 1981, fall fittingly under the heading of, "Provisions relating to other contracts and obligations". I do not want to appear niggling, and I hope that I do not give that impression. But this raises the point about finding the law when someone is searching for the answer to a problem about defamation. Will he go to the Law Reform (Miscellaneous Provisions) (Scotland) Act? Or will he simply proceed in ignorance?
The third group concerns Clauses 14 to 19. Clause 14 seems a sensible provision. I only had time to read quickly through Clause 15. It is one of those mind-boggling lawyers' clauses relating to the "Withdrawal of privilege against self-incrimination in certain proceedings relating to intellectual property". It is the kind of clause that you read at a public meeting if you want to get a laugh against the lawyers. I shall leave it there. The rest of the group effect what I think are, on the whole, desirable reforms.
I pause only to say that the Law Society of Scotland was greatly upset by the provisions for the small claims proceedings. I received a letter from the Law Society of Scotland this morning. I have not been able wholly to digest it. I understand that a copy has been sent to the Scottish courts administration. I have no doubt that the Lord Advocate will be looking into the matter. I wonder, however, whether we could not have some indication of what is going to be regarded as a small claim. From such reading as I have been able to do, the impression is given that these will be claims in the present range of the summary civil causes, which are up to £1,000. I had always thought that the agitation for a simplified small claims procedure that could be handled easily by laymen was aimed at something like the old small debt court limit, but apparently this is not so. Understandably, the Law Society of Scotland is greatly concerned, and no doubt points will be raised at the Committee stage.
The fourth group of clauses appears under the heading "Other provisions relating to courts". It starts off with Clause 20, which amends Section 6(1)(b) of the Sheriff Courts (Scotland) Act 1971. That section prohibits sheriffs (who, of course, if I may explain for the benefit of those of your Lordships who are unfamiliar with their duties, are professional judges in 1028 the sheriff courts) from accepting appointments to any office except such office as may by statute be attached to the office of sheriff principal or sheriff.
I wonder why the Government think that this section should be abolished. There was a good reason for it. It was to secure the position of sheriffs. I wonder whether the Lord Advocate has looked at the history of this matter. It was a frequent question that arose. Sheriffs would come and ask if they could be the honorary president of the local dramatic society, or something like that. One simply told them, "Don't be silly; of course you can". There are good reasons, I am sure, for the section. I wonder whether the Lord Advocate has reflected on them. There are delays in the sheriff courts at the moment which should not occur. I do not believe that the sheriffs have much spare time to devote to other offices. This matter should be looked at seriously.
The Lord Advocate will remember the Answers he gave to my Written Questions, which show that the position has been drifting back to the near scandalous position which existed when the Grant Committee explored it in the period 1963 to 1967. It is drifting slowly back. I imagine that this measure has been included under pressure from certain sheriffs. The Lord Advocate may care, in this context, to consider what I have said. I welcome the re-employment of retired judges just as much as does the noble Lord, Lord Morton.
The Bill goes on to consider the care of children; and there follow provisions relating to crofting tenure and the valuation of sheep stocks. Then, via the criminal courts and provisions about evidence in relation to sexual offences, a reform which I accept is needed, the Bill proceeds to the miscellaneous and general clauses, which in themselves are pretty miscellaneous and general.
There are principles under each group. The only question of principle arising on the Bill itself is that of whether this is an appropriate measure to go on the statute book. I hope that I am not being unduly niggling or critical, or that I appear to be so. Quite frankly, I have an open mind. On first looking at the Bill I was aghast. I felt that it should be called the Law Reform (Hotch-Potch) (Scotland) Bill. I think that that was a wrong approach; it was a violent reaction from an old lawyer with an obsession about the law's delays. I quite accept that. I have an open mind on this matter, but I hope that it is given serious and careful consideration by the Government. No doubt the detail can be improved in Committee, where I imagine that there will be a great deal of work to be done.
§ 8 p.m.
§ Lord McCluskey
My Lords, I listened very carefully to the noble and learned Lord the Lord Advocate when he introduced this Bill and, if I noted him correctly, he began by saying: "The proposals fall to be split into two broad types". I thought that the complete sentence would be: "The proposals in this Bill fall to be split into two broad types: the good ones and the bad ones". However, the noble and learned Lord kindly left it to others to make that distinction, and so shall I.
It is impossible in the time available to address oneself to the principle lying behind each part of the 1029 Bill, but there are some quite important matters which I believe this House must consider before the Bill is passed. First, perhaps I may draw your Lordships' attention to Clauses 8 and 9. As the noble and learned Lord the Lord Advocate told us, these clauses are concerned with rectification of documents which give effect to contracts or to obligations. As the noble and learned Lord has said, there is no general power to do that under Scots law at present. But perhaps I may say that, whatever the true purpose and intention of this clause, it enables a party to make an application to the court to alter the terms of a document which expresses a contract—a document and a contract which creates or transfers rights.
Clause 8(3) shows that when one document is altered, the court may order the alteration of consequential documents, and Clause 8(5) makes it plain that those documents include registers of title to land on the Register of Sasines in Scotland. Once an application is made to the court for the alteration of a document, including a document of title on the land register, the land itself becomes what is technically known as litigious, and the Bill provides for that. Let us think then about the rights of third parties. The noble and learned Lord the Lord Advocate—again I hope that I have noted him correctly—said that the interests of third parties should be and are safeguarded. It is a matter of doubt if this is achieved. Let me give an example.
If a person has bought a house and grounds in Scotland in reliance upon the title which appears on the land register—and hitherto the Register of Sasines has been regarded as almost as reliable as the Greenwhich time signal—then he is at the moment confident that his title is sound. However, let us suppose that someone comes along and makes an application under what will be Section 8 of the Act. He applies to the court for a rectification of an earlier title on which the present title depends. That title may contain provisions about the boundaries of the property or the real burdens that go with the property. In that situation the land and the house—the property—become technically litigious.
In order to resolve the question whether or not the application should be granted, the application has to go to proof before a court. In the proof, under the Bill there may be evidence about the intention of the original parties to the original deed; there may be questions of fact as to whether the third party has acted in reliance on the terms of the document appearing on the land register; there may be questions as to the knowledge, which is actual or deemed knowledge, of the person who has acted. There are other questions as to the reasonableness of his actings; there are questions as to the materiality of the effect on the third party's position; and there are questions as to what date might be allocated for the rectification of the document.
Noble Lords will appreciate that, coupled with what the noble Lord, Lord Morton of Shuna, said, the courts do not decide these matters overnight. It may take some years for an application of this kind to be determined. Let us suppose that the gentleman who finds that his house and land has been rendered litigious now gets an offer to move to a different part of the country and he wants to sell his house. He cannot, because no one would buy ground which has been 1030 rendered litigious by an application of this kind. Is his position protected? The answer quite simply is that it is not. He cannot sell his house. He has to enter the court in order to oppose the application and even if he wins, there is no guarantee that he will get expenses against the person who makes the application, because that person may be legally aided or may be a man of straw. In any event he might, for example, have to take bridging finance to cover the house which he cannot sell and the house which he has to buy in another part of the country, and accordingly he might suffer very serious financial loss while the application is pending. The fighting of the case itself might be prohibitively expensive because, quite apart from his being unable to obtain an award of expenses against the unsuccessful applicant, in any event he would never recover his full expenses by an award of judicial expenses. Therefore, the matter can be extremely serious for a third party, and the Bill does not provide any adequate safeguard for him.
If one looks at Clause 9(1), one sees the beginning of safeguards for the third party, but they are not adequate. In the first place, there is no form of caution or security for expenses in relation to such an application. There is no provision for recovery by the third party of any loss or damage that he may have sustained. There is no time limit for the making of the application and in particular there is no provision for the courts to deal with such applications in a speedy and summary fashion. So if a person finds his title rendered litigious in this particular fashion, it could for him be a financial disaster from which there is no escape.
I conclude that in the Bill as drafted the rights of third parties are not given adequate protection. They need to be protected and I suggest that the noble and learned Lord Advocate might consider, first, introducing severe, strict and adequate time limits to govern such applications so that, when a third party may be affected, they must be brought quickly and must be entertained by and sustained or dismissed by a court of law within a very short space of time. Therefore, we need a new precise and summary form of procedure in order to enable these applications to be disposed of.
I should have thought we must also require some provision to ensure that the expenses of the third party are guaranteed at the time of the making of the application, so that if the third party wins, he will not suffer financially thereby. In my view there should also be some provision for a counter-claim to enable the third party, who has suffered loss because of an application which fails, to make good that loss against the person who has made the unsuccessful application. If I can be present at the Committee stage, I shall endeavour to put down amendments which will give effect to these proposals, but I hope that the Government will give further thought to this particular matter.
I welcome Clause 10, which gives effect to the recommendations of the Scottish Law Commission, but I want to raise a small point. Where the negligent misrepresentation, which is referred to in that clause, is made on behalf of another party to the contract, one assumes that it will be made by an agent acting on behalf of one of the contracting parties. If the agent 1031 makes a negligent misrepresentation which he is not authorised by his principal to make, in fact, one which his principal might have forbidden him to make, then no doubt, in accordance with the ordinary, though difficult to understand, principles of law, the principal will be held liable for the actings of the agent, albeit he acted outwith his authority. If that is the intention, I am not at all sure that the words used in lines 16 and 17:by or on behalf of another party",are adequate to give effect to the principle. However, at some stage I should like to know whether the intention is that the negligent misrepresentation, if made by an agent acting beyond the scope of his authority and contrary to his instructions, is one for which his principal is to be held responsible.
I turn next to Clause 14. Clause 14 requires some fuller explanation. It allows the Court of Session, at its own instance, to send any case which is competent in the sheriff court to the sheriff court. There are no criteria provided in the clause to guide the court in taking this action, and of course almost every action which can be brought, and is brought, at the Court of Session can competently be brought in the sheriff court. Accordingly, the Court of Session is entitled, if it wishes, to send cases to the sheriff court without the permission of either party.
That raises a point of constitutional principle. If two parties choose to go to the Court of Session for whatever reason, it is difficult to see why they should not be allowed to go to the Court of Session, and why the court should be able to say without any sound reason, "Off you go to the sheriff court".
Clause 18 is the small claims procedure clause to which the Lord Advocate referred. I want to draw attention to only one feature of it. The new provision, Section 35A(3), is one which abolishes the requirement for corroboration of evidence. That is something which is happening in more and more cases, and I make no complaint of it. But if one now looks at the new Section 37, one sees that after subsection (2A) there is to be inserted subsection (2B), and that provides that the sheriff can,direct that the proceedings be treated as a summary cause".Therefore, the pursuer goes into court with a small claim and no corroboration. The sheriff transfers it to the summary roll, it becomes a summary cause, where it requires corroboration, and he does not know where he is. He went into court with sufficient evidence, and by an action of the sheriff over which he has no control, and because there is a difficult question of law involved, he finds that he cannot win his case because he now requires the corroboration which he did not have to have before. It may be that I have misread that clause. If I have, no doubt the Lord Advocate will tell us.
Clause 36, which the Lord Advocate thought was the most important clause—it is certainly the one most likely to attract the attention of those who are not set on fire by long leases and other matters which excite us so much—is the one which restricts the attack upon the sexual habits and history of persons who have been the victim of various sexual crimes. I would not dispute the principle involved in this, but is this the right way to go about it?
1032 What the clause does by putting new sections into the 1975 Act is to impose a total prohibition upon the asking of questions of this kind. Then the defence is given the burden of satisfying the court that the defence should be allowed to ask these questions. The court is required to look at "the interests of justice", and to decide that it may limit the questioning, if it allows any questioning, "as it thinks fit". There is no criteria laid down except in these vague words.
The proper way to go about this is to take Section 141 A and remove from the third line the word "shall" and put in the word "may"; in other words, to give the court a discretion to refuse to allow such questioning, and then to remove Section 141B altogether and replace it simply with a proviso which requires the court, in exercising that discretion, to have regard to the interests of justice and to have regard to the other matters set forth in that clause. That would be a much improved version. It would give a proper disrection to the judges in a way that the judges can exercise and develop over the years, rather than abolish the right to ask these questions subject to an application of this kind. I hope that the Government will consider that way of implementing the principle, which I am sure everyone will welcome.
I should like to conclude by saying that Clause 48—which must have fallen into the second of the Lord Advocate's categories—is one which empowers the,Lord Advocate or the Secretary of State,to assist, whether financially or otherwise, persons conducting research into any matter connected with the law. I welcome that. One of the problems that the noble Lord, Lord Morton, mentioned in his speech is that of the administration of judicial business.
For a long time I have advocated, in a different capacity, that it would be desirable to engage to do some research others than those who now look into these matters. At the moment the professionals—that is to say, the judges, the advocates, the solicitors, the fiscals, the SCA, the court staff, and so on—do a lot of work trying to improve the handling of judicial business, but what is lacking is a hard core of research about whether it is important to save the judge's time at the cost of the time of the 100 witnesses, or 200 policemen, who are kept hanging about in order that his lordship's time may not be wasted. Now that is not special pleading. If the judge had the day off in order to avoid public money being wasted, one would have to accept it with such fortitude as one could muster. There are points to be looked at here, and research ought to be done. I am delighted to welcome that clause, and I am sure that this is one of the positive features of this Bill. I hope I have not detained your Lordships too long. I otherwise extend a general welcome to the Bill.
§ 8.15 p.m.
§ Lord Cameron of Lochbroom
My Lords, I am most grateful to all those who have spoken on this Bill. First, I wish to take up a point which the noble and learned Lord, Lord Wilson of Langside, raised in regard to the form of the Bill itself. I am certain that from his own knowledge and experience of statute he is aware that in the past there have been similar Bills which incorporated a substantial number of unrelated points of reform.
1033 I think I would be bound to accept that this one is perhaps somewhat longer than the norm, because it incorporates within its limits four separate reforms which have been recommended by the Scottish Law Commission. I take the view that it is important, where one has recommendations of this kind, that they should reach the statute book, if approved by Parliament, as soon as possible. Accordingly, in this Bill one finds four separate and distinctive reforms which have been the subject of Scottish Law Commission reports. I make no apology for that because it seems to me that at the end of the day the Bill as a whole will do a service to Scots law. I gathered, with the particular points of criticism which noble Lords and noble and learned Lords raised, that this is generally the view which has been expressed.
I should now like to deal with the points raised by the noble Lord, Lord Morton of Shuna. He first raised what he referred to as a constitutional matter in regard to Clause 45. The clause is intended to correct what was a minor defect in the revision of Section 206 by the Criminal Justice (Scotland) Act 1980. At that time it was intended that offenders released under Section 206 should be subject to 12 months supervision on release whether or not they were released on licence before the expiry of their sentence. As the noble Lord pointed out, Section 206 makes provision for that, and, as he is aware, it makes provision where a supervision requirement has been incorporated in the licence that if the individual does not obey the supervision requirement, he may be recalled. Indeed, there may be, subject to recall, detention of up to three months. That may extend in fact beyond the time when his sentence would otherwise have expired. It is not a constitutional novelty, as the noble Lord suggested. One could have this recall provision, for example, occurring on the last day or the last day but one of the actual sentence as it would have expired. Obviously this is something which we shall consider when we go into Committee. I am grateful to the noble Lord for having raised it at this stage. As I said, I think that if the noble Lord has regard to the existing terms of Section 206 he will find there no constitutional novelty in what is proposed.
The next point that the noble Lord raised related to Clause 39 and the provisions for drugs offences. He made certain points in relation to the form of words. Again I look forward to a proper debate on this matter in Committee, but the intention of this is to make it clear that it is not the addict who is to be punished but those who are trafficking in drugs, so as to demonstrate the point that trafficking in drugs will not pay. That is why it is limited to Class A drugs; those drugs which are regarded as the most dangerous, the most lethal and therefore those in which trafficking is most deleterious. It is those offences which at present attract the severest penalties. Your Lordships will know that there is legislation presently before Parliament which the Government support and which will increase the maximum term of imprisonment for such offences from 14 years to life imprisonment. As I am sure the noble Lord is well aware, the courts already have powers to impose a fine in addition to imprisonment in such cases. The intention of these provisions is to make that mandatory unless, for any reason, the court is satisfied that a fine in addition would not be 1034 appropriate. Obviously the whole circumstances of the accused will be considered by the court as at present. The purpose of the provision in this clause is to bring it to the attention of the court that the court will also be expressly required to take account of any profits which have been made from the offence, so far as there is material for the court on which to reach such a conclusion.
The next provision to which the noble Lord referred was Clause 22 in relation to the employment of retired judges. I accept entirely what he said: the courts are having to deal with increasing business. It is essential that the Government keep the position constantly under review. This Government have done so. I have to tell your Lordships that today a draft order is being laid before Parliament which will increase the number of permanent judges from 22 to 23. Clause 22 is concerned with providing the court with a certain measure of flexibility to cope with temporary peaks of business or with absence which may be caused through illness rather than a permanent increase in the workload. Noble Lords will be aware that similar provisions operate south of the Border and, it is right to say, without the restriction to the retiring age of 75 that appears in this clause. The Government accept that it would be appropriate to retain the age of 75 as the point beyond which judges who have retired should not be recalled to temporary duty. But I should be confident that in the future, as the present statutory limit for judges retiring takes more effect, a number of judges who will have retired before the age of 75 may be prevailed upon in certain circumstances to return. At least it seems to the Government that this provides a certain degree of flexibility which nowadays would be appropriate. The nature of the work for those judges will be a decision for the discretion of the Lord President, but I would anticipate that in all probability it would be mainly appellate work.
The noble Lord raised the question of the use of senior members of the Faculty. The Government considered this at the time when the present Bill was in draft and had discussions about the matter but it was thought that, unlike England, the senior Bar in the Faculty of Advocates is really too small for such an arrangement. Accordingly it has been thought best for all concerned that it should be limited simply to those judges who having a knowledge of judicial business and having retired will still be qualified to return and assist.
The noble Lord, Lord Wilson, had certain reservations about these matters, but I accept from him that one is looking ultimately in all forms of court practice for a proper balance of speed and efficiency. That is what, within various elements of this Bill relating to the courts, we are looking for. I look particularly to the small claims procedure as one which it is hoped will allow matters to be dealt with in a reasonably speedy and efficient way by permitting a relaxation of the rules of evidence, for instance, in those matters effectively to allow the sheriff to act more like an arbiter than a judge in those cases.
I am aware of the letter from the Law Society of Scotland. It will give material which we shall consider in due course in Committee. I welcome that. The noble and learned Lord also raised the issue of Clause 20 of the Bill. There is no real secret about this clause.
1035 Its intention is to make clear that the shrieval bench is as free to take certain offices as any other branch of the judiciary.
At present, the terms of Section 6 of the Sheriff Courts (Scotland) Act 1971 prohibit a member of the shrieval bench from accepting appointment to any office other than one specifically provided for by statute. While I accept that it may well have been that the noble and learned Lord in another office encouraged his sheriffs to take part in the life of their sheriffdoms, there is on one view a bar to that in the provisions of Section 6. Indeed, the Grieve Committee on the administration of sheriffdoms said that sheriffs-principal, for instance, should be encouraged to contribute to the life of their sheriffdoms, which could involve their taking up voluntary or other offices. To make it quite clear that neither sheriffs nor sheriffs-principal should be regarded in any different light from any other member of the judiciary, it is thought best that Clause 20 should put the matter beyond doubt.
The noble and learned Lord, Lord McCluskey, has raised a number of interesting points on various clauses of the Bill. The first matter which he raised was in relation to the rectification of documents and, in particular, in relation to litigiosity. I think that I should like to consider this further. These clauses are, as I think the noble and learned Lord knows, based upon the specific provisions of the Scottish Law Commission and I think that it is fair to say that where they deal with this, in paragraph 8(18) of their report, they consider litigiosity simply in the sense of the land at that time being in the ownership or possession of one or other party to the action which forms the application. I think it is fair to say that they did not have within their consideration at that stage that it should have passed out of possession. Obviously the matter is of substantial importance, as the noble and learned Lord has pointed out, and I think that we would wish to consider this further and, in particular, the points which the noble and learned Lord has raised.
Clause 10 deals with negligent misrepresentation. Again, as I think the noble and learned Lord will be well aware, this clause is based upon the Scottish Law Commission recommendations. Its intention is to effect a change by statutorily overruling the Court of Session judgment in Manners v. Whitehead. Again, obviously I shall look very carefully at what the noble and learned Lord has said. The intention, I think, is quite plain: that it should bring negligent misrepresentation into the same area of common law as extends to any other negligent act. I shall read what the noble and learned Lord has said on this particular matter.
So far as Clause 14 is concerned, again, this is a matter to which I have listened with care. I would suggest, however, that the Court of Session, which after all is the supreme court should be vested with a discretion in an appropriate case where it thinks that it is not appropriate that the court should be seized with the particular case before it where there is a more appropriate court available to deal with it—namely, 1036 the sheriff court—but it may, in very special circumstances, be able of its own to remit a case to the sheriff. I spoke earlier about speed and efficiency in relation to what the noble and learned Lord, Lord Wilson of Langside, had said. It seems to me, and certainly the Government consider, that this should be, as it were, a two-way flow between the sheriff court and the Court of Session. We have one part of the equation already with the power of the sheriff to remit to the Court of Session. This is, as it were, the other part of the equation.
The noble and learned Lord also raised points in relation to Clause 35, the small claims procedure. Again, I note what he said and I think that, in part, I have already answered this in what I said earlier in reply to the noble and learned Lord, Lord Wilson of Langside. This is, in effect, a relaxation from what would otherwise be the rule and I think that it will be seen as such; but nevertheless the noble and learned Lord has raised a point which will be worthy of debate in Committee.
The noble and learned Lord also raised points regarding the drafting of Clause 36. I do not understand that the intent of the clause is in any way criticised by him. Again, I think it is right to say that this is based on a recommendation of the Scottish Law Commission, and indeed the provisions of the Bill and the amendments that have already taken place in another place have been the subject of discussion with the Scottish Law Commission. But I should certainly welcome debate on this matter when it comes before your Lordships' in Committee.
I would also entirely accept and endorse what the noble and learned Lord said about Clause 48. I think it is important that we should keep our procedures under review at all times, and more especially at times when—as we have been recently—we are looking to a substantial expansion in the number of cases which the courts are dealing with and when there is a general public desire, I think, for more efficiency, compatible with the interests of justice, in the way in which the courts are operated. As I said at the outset, I am most grateful to all who have taken part in this debate and I commend the Bill to the House.
§ On Question, Bill read a second time, and committed to a Committee of the Whole House.