Law Reform (Miscellaneous Provisions) (Scotland) Bill

HL Deb 30 July 1985 vol 467 cc168-223

3.36 p.m.

The Lord Advocate (Lord Cameron of Lochbroom)

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 Cameron of Lochbroom.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD ABERDARE in the Chair.]

Clauses 1 to 7 agreed to.

Clause 8 [Rectification of defectively expressed documents]:

Lord Morton of Shuna moved Amendment No.

Page 7, line 10, at end insert—

("() If it appears to the Court that an application made under subsection (1) above is one that may affect the interests of a person (other than a party to the agreement or the grantor of the document), and that that person has not consented, in a probative writing, to the proposed rectification the application shall be dealt with in accordance with the summary procedure prescribed by Act of Sederunt under this Act.

() The Act of Sederunt referred to in the foregoing subsection shall prescribe a summary procedure to ensure—

1. (a) that any application to which it applies is finally disposed of within a period of six months from the date when the court orders the application to be dealt with in accordance with such summary procedure; and
2. (b) that the Court may, on cause shown, ordain the applicant to find caution for the expenses of any such person as is referred to in the foregoing subsection; and
3. (c) that any such person may counterclaim against the applicant in the same proceedings for recovery of any loss or damage sustained by such person, being loss or damage arising directly from the making of such an application (in the event of its being unsuccessful); provided that the cause may continue for a further period of six months, after the expiry of the period of six months referred to above, for the determination of all issues arising from the making of any such counterclaim; and
4. (d) that the applicant shall have no right of appeal, without leave of the Court, against a refusal by the Court to grant any order sought by the applicant.").

The noble Lord said: This amendment is to assist a third party who is affected by the strange Scottish term of litigiosity because two parties, or one person, seek to have a contract rectified. The effect of this was, to some extent, spoken to by the noble and learned Lord, Lord McCluskey, at Second Reading. There is no protection in the Bill for the difficulty that may arise for an innocent third party who, for example, has a house, but because the previous owners seek to rectify something in relation to the title he is not able to dispose of it for the period that the litigation is in force.

The sole purpose of this amendment is to make sure that the court will deal quickly—within a period of six months is suggested—with the application to rectify and to provide for expenses. It is difficult to give an estimate of how long, without such provision, litigation might last. I am involved in litigation—but not since it started—which began in 1977 and which is still not disposed of. It would be very unfortunate for an innocent third party, if he had no means of speeding a matter along and no security as regards expenses for something that was no concern of his. I beg to move.

Lord Kirkhill

I listened with some fascination at Second Reading to the views expressed by the noble and learned Lord, Lord McCluskey. In view of those comments, it seems most appropriate that my noble friend Lord Morton of Shuna should have put down these amendments for consideration by the Committee, at the same time giving the noble and learned Lord the Lord Advocate an opportunity to clarify the Government's thinking about the criticisms expressed at Second Reading and which are being expressed now. In trying to look at the difficulty from a layman's point of view, is not the problem with Clauses 8 and 9 simply that they can put a blight upon the property of a commercial interest of a third party during the period—probably a long period—that passes before the courts determine whether or not the original document truly expresses the intention of its authors? Perhaps the noble and learned Lord the Lord Advocate will tell the Committee whether he takes the view that the Bill as drafted comes to grips with the problems created for an innocent third party whose rights derive from a document which becomes the subject of a Clause 8 application.

Would it not be the case that even if the third party wins—as he could under Clause 9—it may take years for such a win to occur and in the meantime his property is unsaleable? It would be very helpful to the Committee if we could have the views of the noble and learned Lord the Lord Advocate on the matters on which I have touched.

Lord Cameron of Lochbroom

I appreciate entirely the concern which the noble Lord, Lord Morton, has already expressed today and which was previously expressed at Second Reading by the noble and learned Lord, Lord McCluskey. The issue is whether this clause should be amended to make provision for something which is not already there; namely, compensation for losses which may arise to a third party by the mere making of an application for a rectification order as opposed to the result achieved.

My suggestion to your Lordships is that the proposed solution has many difficulties of its own. Indeed, I am not convinced that such a provision is necessary. In that regard it may be necessary to look very briefly at the matter of litigiosity. I am surprised that the noble Lord, Lord Morton, was not more familiar with the phrase but he has declared himself unfamiliar with it. As the noble Lord will know, the sphere of operation of litigiosity is limited to any voluntary alienation of the property which is the subject of dispute made after the notice of litigiosity has been registered in the Register of Inhibitions and Adjudications. The litigiosity, which is in effect a form of notice that there is a dispute about the land in question, does not affect any dispositions—that is to say grants of land—which have been made prior to such registration; or indeed any formal deed which is granted after the time of the registration notice if the deed is made and granted in fulfilment of obligations which have been incurred before registration took place. Your Lordships will be aware of the Scottish custom of exchange of missives for the sale of property. If these have been exhanged before any notice is registered then the sale can go ahead and a disposition—that is the formal deed—passed between the seller and the purchaser without litigiosity having any effect upon it.

Accordingly, litigiosity would not affect directly any third party who acquires land in good faith. It really only serves to restrict the debtor in an obligation and a defender in an action involved so that those who take from them do so in the knowledge that there is an action in progress.

3.45 p.m.

The problem about the noble Lord's amendment is that the first subsection defines a third party far to widely, simply as a person who has an interest in the case. Clause 9(1) and (2) confine third party protection—it is a protection specifically devised for third parties—to persons whose interests have been materially and adversely affected by relying on the document which the applicant wishes to rectify. The problem with which the noble Lord's amendment is concerned is one of which the Law Commission were aware. They discussed this in their report. To give protection to a third party whose interests are not adversely affected or not materially affected leaves far too much scope for interference by third parties who have no interest in the case itself, although such interference could be beneficial to them for some other reason. Accordingly, while third parties undoubtedly must be protected (and in my submission are so by the Bill as presently drafted), applicants must also be protected against unjustified interventions.

If one goes on with the provisions in the amendment—those on time limits, caution for expenses and appeals—these could also give rise to considerable difficulties and may not always be in the interests of third parties themselves. For instance, the initial time limit of six months in paragraph (a) would not begin until the court was aware of the third party's interest, and this may not be until the hearing has begun. While this is unavoidable, it means that the damage may have already been done. Conversely, the six months' limit in paragraph (d) for the hearing of the counter claim for damages may act to the third party's disadvantage since this gives him little time to prepare what may be a very complex case. Moreover, the full extent of this loss may not become clear during that period of six months.

More generally, the imposition of time limits would mean giving actions for rectification priority over other cases. I am not convinced that such priority is in fact justified because it is clear that rectification cases could often be complex. The very issues which arise might well be complex not least when they involve consideration of a third party's interests. Accordingly this in itself throws doubt upon the suitability of a summary procedure to deal with the matter.

With regard to the restriction on rights of appeal, here again I think that your Lordships would on any view, leaving aside any other views there may be on this amedment, be loath to restrict without good reason the rights of appeal. I suggest that on any view this is not fair to an applicant who may not be aware of the third party's existence when he begins the action. It is a general objection to the new summary procedure which is proposed that it can act to the disadvantage of the applicant for a rectification order but its use depends on the chance as to whether or not the third party is involved—that is a matter the applicant may be unable to determine in advance.

I fully appreciate the noble Lord's basic point. It is only fair to say that I have had consultations with the Commission on this matter. But they are not persuaded that what they suggested in their report, which of course is the basis for the Bill, is incorrect. I suggest that such cases not involving litigiosity with which I have already dealt are really extremely unlikely to occur in practice. Secondly, I suggest to the noble Lord that perhaps he has not fully appreciated the effect of Clause 9(1). It was placed there to deal with the interests of third parties whom he is seeking to protect. The Court is by virtue of that clause unable to rectify a document where the interests of a third party would be adversely affected to a material extent without that third party's consent. That would seem to take care of the very situation which the noble Lord was positing in what he said.

Accordingly, a third party in that situation—for instance, if he wished to consent—would be in a position to extract any compensation which he might think would be required if there were to be some prejudice to his interests. The alternative would be that the court, being satisfied that there was a material prejudice, would refuse the application. Accordingly, I suggest to the Committee that special compensation provisions are not necessary and that the two clauses taken together adequately deal with the kind of problem which the noble Lord was suggesting could arise.

Lord Morton of Shuna

I am much obliged to the noble and learned Lord the Lord Advocate for that reply. Despite his consultations, it does not appear to me that the problem with which this amendment seeks to deal has really been met. The problem is that under Clause 8(7) the land becomes litigious on the application being lodged. The court may order rectification under Clause 9(1), but that may take years. During that period of waiting for the application to be disposed of, the third party who by that stage may have the property will have to wait and will be unable to sell it—for example, if he is moving to another job or, if he happens to be a procurator fiscal, if the noble and learned Lord the Lord Advocate intends to move. He cannot sell the property on being moved. I suggest that the noble and learned Lord should continue his consultations and reconsider this matter. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 8 agreed to.

Clauses 9 to 12 agreed to.

Clause 13 [Amendments of Matrimonial Homes (Family Protection) (Scotland) Act 1981]:

Lord Wilson of Langside moved Amendment No. 2: Page 11, line 7, at end insert— ("(2A) After section 1(3) of that Act there shall be inserted— Provided that the non-entitled spouse has not been excluded or ejected from the matrimonial home by an unlawful act on the part of the entitled spouse.".").

The noble and learned Lord said: This amendment is inspired, as no doubt the noble and learned Lord the Lord Advocate appreciates, by Scottish Women's Aid, the well-known registered charity which does such splendid work in giving advice, support and refuge to battered women and children. At this stage, I do not expect the Government to accept the amendment as it stands. To that extent it is a probing amendment. However, it raises a question of principle of some importance which the Government should at least consider.

As the Committee will be aware, Section 1 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 gives what is known as a non-entitled spouse a right, if in occupation of the matrimonial home, not to be excluded therefrom. Secondly, if the spouse is not in occupation, then there is a right to enter and occupy. However, what is given by Section 1(1) of the 1981 Act is, as it were, restricted by Section 1(3), under which, if the husband will not let his wife in, in effect, then she is the unfortunate one who must go to court.

In the ordinary case, one can accept that such is a perfectly reasonable arrangement. The question that arises is this: what of the wife who is physically assaulted and literally thrown out on to the street? This is not an uncommon type of case and many such instances are given in the information which the charity has put before me. What will be the position in that case? Should the law allow such a man its protection, in effect, by laying down that the wife must in such circumstances initiate proceedings? It is an extremely difficult course of action for a woman in such a situation to take.

I am suggesting that the Government should seriously and carefully consider the possibility of making more adequate provision in such special cases. As I have already said, albeit a special case, it is not one of great gravity. Scottish Women's Aid have suggested to me that a husband in that situation, quite apart from acting illegally and inhumanly, is also guilty of a contravention of Section 22 of the Rent (Scotland) Act 1984. That section protects a person with a right of occupancy against harassment by any persons. I have my reservations about that provision and have expressed them to the charity; that is, the provision designed to protect occupiers against harassment by wicked landlords. However, no doubt the noble and learned Lord will consider this point.

Scottish Women's Aid are very concerned about this matter. They are very closely involved in dealing with such cases from day to day and want to know whether Section 22 does have any relevance. I have given them my opinion but there are other opinions which matter and which would carry more weight. That is the situation which this amendment is designed to probe. I hope that the Government will give it some consideration. I beg to move.

Lord Morton of Shuna

I have great difficulty in understanding this amendment. It is very hard to make any sense of its semantics. Section 1 of the basic matrimonial homes Act states that: the non-entitled spouse shall, subject to the provisions of this Act, have the following rights—— (a) if in occupation"— and then under this Bill, the wording is to be changed to: to continue to occupy the matrimonial home". To add to that phrase the words contained in the amendment: Provided that the non-entitled spouse has not been excluded or ejected"—

Lord Wilson of Langside

I believe that I can assist the noble Lord. I should have said that my first draft of this amendment—and the responsibility for it is entirely mine and no one else's—was very confusing. Indeed, when I first saw it reproduced last night, I was in some confusion myself and could not understand it. The Committee will appreciate that when dealing with a miscellaneous provisions Bill of this kind, it is very easy for the individual working alone to fall into traps. I apologise for that. A correction has been made and Amendment No. 2 has now been starred on the Marshalled List. I should have mentioned that point but I assumed, wrongly, that the noble Lord, Lord Morton of Shuna, would have an up-to-date list.

Lord Morton of Shuna

I am sorry that I am not up to date. I believe it would be best if I said nothing more on this particular matter.

4 p.m.

Lord Cameron of Lochbroom

I am obviously grateful to the noble and learned Lord for tabling this amendment so that we can consider the situation as it arises. I think I should make clear that Section 1 (3) of the 1981 Act to which this amendment refers at present requires that a non-entitled spouse (that is, a person who has no legal rights to occupation of the matrimonial home) who is not in occupation of the matrimonial home must, if denied entry to the matrimonial home, apply to the court for an order enforcing her right to enter the matrimonial home.

This requirement derives from the Scottish Law Commission's recommendation that disputes arising about the exercise of occupancy rights should be resolved by court order, notwithstanding that these rights arise by operation of law. Perhaps I should just make the point now that, effectively, we are dealing with civil rights as opposed to matters which may also involve criminal law. I think that the noble and learned Lord cast a fly across my nose in referring to the Rent Act 1984.I have no doubt that any advice he gave was very proper but I do not think that, at this stage at least, I wish to comment further on that issue.

Returning to the Scottish Law Commission, it observed in its report that a wife may require to obtain a court order declaring the existence of her basic right of occupancy, or an interdict against her husband who has attempted to breach her basic rights This concurrent exercise by spouses of occupancy rights possessed by both, if giving rise to conflict, will then require to be regulated by the court. The commission was plainly concerned that parties should not be encouraged to take the law into their own hands, but that, failing agreement, their respective legal rights should be determined by the court.

As I have already said, I am sensible of the noble and learned Lord's concern to afford an ejected spouse—one who would by virtue of Section 1(1)(a) have, by law, a legal right to obtain—an immediate remedy for the enforcement of her occupancy rights. However, I have to say that by simply allowing her to attempt entry following exclusion or rejection without a court order seems to me likely only to lead to further conflict. In a situation where the level of conflict between spouses is such that one spouse has already ejected or excluded the other, it seems particularly necessary that disputes should be regulated by the court, which can determine if the exclusion or rejection is unlawful and then make such order enforcing the occupancy rights as is appropriate in the circumstances of the case.

Of course, that may be an order which has adjected to it some form of interdict. In those circumstances, where the spouse has been unlawfully excluded or ejected from the matrimonial home I do not believe that this amendment would materially assist the spouse in obtaining unrestricted exercise of her occupancy rights. For those reasons I invite the noble and learned Lord to withdraw his amendment at this stage.

I should say, as I shall say about other parts of other amendments in due course, that the Act has been on the statute book for only a short time. The Government will continue to monitor the way in which it operates; and if at the end of the day it is found that certain of the basic provisions are in some way considered defective, there will be in due course, I trust, an opportunity to amend the present provisions. In the meantime, for the reasons which I have set out, I suggest that the principle on which the Scottish Law Commission acted is a proper one and should not at this stage be departed from.

Lord Wilson of Langside

I am most grateful to the noble and learned Lord the Lord Advocate for the careful consideration that he has given to the matters which I have raised. I am particularly encouraged by his assurance that the Government are carefully monitoring the working of this all-important Act. I hope that they will continue to do so and that a good relationship will be established between his office and bodies such as the Scottish Women's Aid which is, as I have already said, much involved in the practical working of the Act. However, in the light of what has been said I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Wilson of Langside moved Amendment No. 3: Page 11, line 22, at end insert— ("() In section 3(7)(a) of that Act the word "non-entitled" where first occurring shall be omitted and where next occurring shall be replaced by the word "that".").

The noble and learned Lord said: This amendment is similarly inspired. Its object is to protect the woman who is the entitled spouse. Section 3 of the 1981 Act provides for the regulation by the court of the right of occupancy of the matrimonial home and Section 3(7) lays down that: Where it appears to the court— (a) on the application of a non-entitled spouse, that that spouse has suffered a loss of occupancy rights or that the quality of the non-entitled spouse's occupation of a matrimonial home has been impaired; or…in consequence of any act"—

I am paraphrasing now—on the part of the other which was intended to result in such loss, it may order that other spouse to compensate the other in respect of that loss or impairment.

The question which I ask is: why should the right to apply under Section 3(7) be restricted to the non-entitled spouse? Could not circumstances arise in which an application under this provision could be made either by the entitled spouse or the non-entitled spouse? Indeed, the Scottish Women's Aid advisers took the view that the original provision was something of a drafting error. I am not sure about that; but in any event, I certainly see no reason why the right to make application under Section 3(7) should be restricted to the non-entitled spouse. I beg to move.

Lord Cameron of Lochbroom

I assure your Lordships that there was no drafting error in the original Act. It is important to realise that an entitled spouse—and I include within that what is sometimes referred to in the Act as the jointly entitled spouse—is in a stronger position to defend his or her rights in a matrimonial home than is a non-entitled spouse.

It is difficult to see how a non-entitled spouse can cause an entitled spouse to lose his or her occupancy rights, because those rights are common law rights. They derive from his or her ownership of the property or tenancy, or a right to occupy property given by a third party, while by contrast the non-entitled spouse merely has the statutory rights which are provided to him or her under the 1981 Act. These rights could of course in certain circumstances be lost as a result of the actions of the entitled spouse; for instance, if the property was sold to a third party in circumstances where Section 6(3) of the 1981 Act applies.

In addition, it is fair to say that an entitled spouse, by virtue of his or her common law rights, has the right at common law to take all necessary court action to defend the right of occupation and these rights could include, where appropriate, the right to claim damages for any deliberate infringement of those rights or of the enjoyment of them.

I think it is only proper to advise the Committee that, at the time when their report on this matter was issued, the Scottish Law Commission considered whether it was desirable in the case of the non-entitled spouse to provide expressly for compensation for loss of occupancy rights under the Act. However, they considered that, as these were new statutory rights, it was desirable to make clear that compensation could be payable for their loss or impairment. With that explanation to the Committee, and in particular to the noble and learned Lord, I invite him to withdraw the amendment.

Lord Wilson of Langside

I am most grateful to the noble and learned Lord the Lord Advocate for the careful consideration he has given to these matters. I shall read what he has said with some interest and give further consideration to it, and if so advised I may raise this question again at the next stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Morton of Shuna moved Amendment No. 4: Page 11, line 25, at end insert— (" () In section 4(2) of that Act for the words "necessary for the" there shall be substituted the words "just and reasonable having regard to the need for".").

The noble Lord said: Here we move from entitled and non-entitled spouses to applicant and non-applicant spouses. The amendment is to Section 4(2) of the Matrimonial Homes (Family Protection) (Scotland) Act where the wording at present is that: the court shall make an exclusion order if it appears to the court that the making of the order is necessary for the protection of the applicant or any child of the family from any conduct or threatened or reasonably apprehended conduct of the non-applicant spouse".

The amendment will insert the words "just and reasonable having regard to the need for" protection instead of "necessary for the" protection.

Violence in the home is one of the major diseases of our society and the whole purpose of the Matrimonial Homes (Family Protection) (Scotland) Act was to deal with this matter. The Law Commission originally rejected a "balance of convenience" or a "balance of hardship" test because, as I understand its report, it was considered that this test would give the judges a discretion which might result in exclusion orders being refused; the commission therefore thought that a "need for protection" test would ensure that exclusion orders would be granted where necessary.

Unfortunately, though they seem to be moving away from their most strict interpretation, the courts have interpreted this in the opposite way to that expected by the Scottish Law Commission; they have interpreted this section as meaning in general that if the wife is already out—I refer to the wife because it is usually the wife who is subject to violence—an exclusion order would not be granted, and of course often it is most necessary that the wife and children should have somewhere to live. The courts' view was that if the wife were already out, she was in no need of immediate protection and the applicant's spouse was not in immediate danger of suffering "irreparable harm", to quote the words of some judges.

In my submission, this amendment will restore the law to what the Law Commission desired, and I hope that the noble and learned Lord, the Lord Advocate, will view this amendment favourably. I beg to move.

4.15 p.m.

Lord Wilson of Langside

I support this amendment wholeheartedly and share the hope of the noble Lord, Lord Morton of Shuna, that the Lord Advocate and the Government will give it most sympathetic consideration.

Lord Cameron of Lochbroom

I wish to make it clear beyond doubt that the Government share the concern which noble Lords have already expressed about the issue of violence in the home, or indeed violence anywhere. But I cannot advise the Committee to accept this amendment, though I fully accept that it is put forward with good intention. There is no doubt at all that concern has been expressed about the terms of certain judicial interpretation of the legislation which was adopted at a very early stage, but I think that recent authoritative decisions of the courts in Scotland have made it clear that the courts now take a far more realistic view of when an exclusion order is necessary—and I use the word which is in the Act—for the purposes of Section 4(2) of the 1981 Act. Indeed, I have read recent legal commentaries upon the working of the Act which have made that very point. It would appear to be quite clear that authoritative decisions have been given by which the courts now recognise the purpose of the Act as interpreted from the words of the Act itself.

Obviously I accept that there may yet be some variation in judicial interpretation of the 1981 Act, but I do not believe that the introduction of amendment at this time will be helpful. Indeed, I fear that amendment as proposed may be likely to cause confusion, which would be most regrettable at a time when a clearer consensus of opinion is emerging as to what circumstances meet the test of necessity. I also doubt that the effect of this amendment would in fact be to provide increased protection for a spouse or children who are at risk as a result of domestic violence, which is clearly the intention of the amendment. At present Section 4(2) of the 1981 Act makes clear that, in considering whether or not to make an exclusion order, the court shall concern itself primarily with the question of whether the making of the order is necessary for the protection of the applicant or any child of the family.

The question of whether the making of an exclusion order is just and reasonable in all the circumstances of the case is a secondary consideration, as Section 4(3) of the Act makes clear. In this respect the Act followed very closely upon the recommendation of the Scottish Law Commission, which was concerned to make clear that the general rule should be that consideration of the need for protection of the wife and children should have precedence over consideration of the balance of hardship.

Indeed, at paragraph 4.8 of its report, the commission argued that it was necessary to ensure that the court should have no unnecessary disincentive to grant an exclusion order but that the court should at the same time have a residual discretion not to grant an exclusion order in those special cases where the particular consequences of excluding a husband would make the remedy an inappropriate one for the wife and children. The Commission therefore recommended that the court should be required to make an exclusion order if it were satisfied that the need for protection arose, unless there were exceptional circumstances which would make the grant of such an order unreasonable.

I suggest to your Lordships' Committee, therefore, that the terms of this amendment would be contrary to the intention of the Scottish Law Commission and indeed of Parliament when it enacted this legislation following upon the Law Commission's report The effect of the amendment in seeking to substitute the just and reasonable test for the necessity test would, as I have said, be to confuse the relevant priority of the balance of hardship with the test of necessity for protection. It seems likely therefore that such an amendment might indeed incline the courts to take a more lenient attitude towards the defender, giving more emphasis to factors such as the balance of convenience at the expense of consideration of the necessity for protection; and it could have, as I say, an effect very different from that which is intended.

I have already indicated to your Lordships' Committee that this Act and its operation is being monitored at present. The Government entirely accept that this is a complex and radical piece of legislation. Indeed, earlier this year research was commissioned to review the operation of the domestic violence provisions of the Act. We expect the results of that research to be available early in 1986.1 would strongly suggest to your Lordships that we should await the findings of that research to enable us to assess on the basis of reliable evidence whether there are faults which required to be rectified by further legislation in the domestic violence provisions of the Act. Particularly is that necessary where, as I say, over the period of time since the passing of the Act there has been a shift in judicial interpretation. In particular the most recent decisions of the Court of Session have made it quite clear that the proper intention of the Act and the spirit in which it was passed is now finding judicial favour. I would hope that it is along that line that future judicial interpretation will proceed.

For all those reasons, while I entirely accept the intention behind the amendment, I would invite the noble Lord to withdraw it.

Lord Wilson of Langside

I do not know what the noble Lord, Lord Morton, feels about being accused of good intentions, but I have for long been conscious of where the road so paved leads one, so I have certain reservations. I thought that I would say this before the noble Lord decides what he proposes to do, but I am not at all convinced by what the Lord Advocate said in, reply. I have not read the decisions to which he refers, but, subject to that, I find the answer from the Government unconvincing.

Lord Morton of Shuna

I regret that I too find the answer unconvincing. The court would be directed in this way if the amendment were allowed: shall make an exclusion order if it appears to the court that the making of the order is just and reasonable having regard to the need for the protection of the applicant or any child of the family". It appears to me that it would be perfectly clear to any court that that was the primary purpose. Subsection (3), which states: The court shall not make an exclusion order if it appears to the court that the making of the order would be unjustified or unreasonable", would obviously be subsidiary.

It would be encouraging if we were all to accept the confidence of the noble and learned Lord the Lord Advocate in the court's interpretation; but there has been a tragic case recently where a lady was four times refused an exclusion order on the ground that the judge took the view that such an order was not necessary for her protection. It no longer is necessary because she was murdered. Although it may be that that death would not have been prevented by an exclusion order, the lady would have been happier had she had an exclusion order. The way that the courts are in general interpreting exclusion orders is putting a very high onus on people to prove need and necessity. I regret that I must press the amendment.

4.25 p.m.

On Question, Whether the said amendment (No. 4) shall be agreed to?

Their Lordships divided; Contents, 77; Not-Contents, 92.

DIVISION NO 1
CONTENTS
Airedale, L.	David, B. [Teller.]
Amherst, E.	Davies of Leek, L.
Ardwick, L.	Davies of Penrhys, L.
Aylestone, L.	Diamond, L.
Banks, L.	Elwyn-Jones, L.
Barnett, L.	Elystan-Morgan, L.
Beaumont of Whitley, L.	Ennals, L.
Beswick, L.	Ewart-Biggs, B.
Birk, B.	Falkland, V.
Bruce of Donington, L.	Fisher of Rednal, B.
Carmichael of Kelvingrove, L.	Gallacher, L.
Chitnis, L.	Galpern, L.
Cledwyn of Penrhos, L.	Gladwyn, L.
Crawshaw of Aintree, L.	Glenamara, L.
Darwen, L.	Graham of Edmonton, L.

Grey, E.	Phillips, B.
Grimond, L.	Pitt of Hampstead, L.
Harris of Greenwich, L.	Ponsonby of Shulbrede, L. [Teller.]
Hatch of Lusby, L.
Heycock, L.	Raglan, L.
Houghton of Sowerby, L.	Rea, L.
Hughes, L.	Ritchie of Dundee, L.
Jenkins of Putney, L.	Sainsbury, L.
John-Mackie, L.	Seear, B.
Kagan, L.	Shepherd, L.
Kilmarnock, L.	Stallard, L.
Kirkhill, L.	Stedman, B.
Leatherland, L.	Stoddart of Swindon, L.
Listowel, E.	Taylor of Blackburn, L.
Lloyd of Kilgerran, L.	Taylor of Gryfe, L.
Lockwood, B.	Taylor of Mansfield, L.
Mackie of Benshie, L.	Tordoff, L.
McNair, L.	Underhill, L.
Molloy, L.	Wallace of Coslany, L.
Morton of Shuna, L.	Whaddon, L.
Mulley, L.	Willis, L.
Nicol, B.	Wilson of Langside, L.
Northfield, L.	Winstanley, L.
Peart, L.	Wootton of Abinger, B.

NOT-CONTENTS
Aldington, L.	Layton, L.
Alexander of Tunis, E.	Long, V.
Annan, L.	Macleod of Borve, B.
Bauer, L.	Mancroft, L.
Belhaven and Stenton, L.	Marley, L.
Beloff, L.	Marshall of Leeds, L.
Belstead, L.	Massereene and Ferrard, V.
Berkeley, B.	Middleton, L.
Boardman, L.	Milverton, L.
Boyd-Carpenter, L.	Molson, L.
Brabazon of Tara, L.	Montagu of Beaulieu, L.
Brougham and Vaux, L.	Morris, L.
Broxbourne, L.	Mottistone, L.
Butterworth, L.	Mountevans, L.
Caithness, E.	Moyne, L.
Cameron of Lochbroom, L.	Moyola, L.
Carnegy of Lour, B.	Munster, E.
Cathcart, E.	Murton of Lindisfame, L.
Cottesloe, L.	Nugent of Guildford, L.
Cowley, E.	Orkney, E.
Craigavon, V.	Orr-Ewing, L.
Cullen of Ashbourne, L.	Pender, L.
Davidson, V.	Polwarth, L.
Denham, L. [Teller.]	Porritt, L.
Dilhorne, V.	Radnor, E.
Dormer, L.	Rankeillour, L.
Drumalbyn, L.	Rochdale, V.
Duncan-Sandys, L.	Rodney, L.
Elliot of Harwood, B.	Rugby, L.
Enniskillen, E.	Saltoun of Abernethy, Ly.
Faithfull, B.	Sandford, L.
Fraser of Kilmorack, L.	Skelmersdale, L.
Gibson-Watt, L.	Stamp, L.
Glanusk, L.	Stanley of Alderley, L.
Gray of Contin, L.	Sudeley, L.
Gridley, L.	Swansea, L.
Hailsham of Saint Marylebone, L.	Swinton, E. [Teller.]
	Terrington, L.
Harmar-Nicholls, L.	Teviot, L.
Hooper, B.	Ullswater, V.
Ingrow, L.	Vaux of Harrowden, L.
Killeam, L.	Vivian, L.
Kinloss, Ly.	Westbury, L.
Kintore, E.	Whitelaw, V.
Kitchener, E.	Wynford, L.
Lauderdale, E.	Zouche of Haryngworth, L.
Lawrence, L.

Resolved in the negative, and amendment disagreed to accordingly.

4.32 p.m.

Lord Morton of Shuna moved Amendment No. 5: Page 12, line 38, at end insert— ("() In section 14(2)(b) of that Act for the words "in a specified area in the vicinity of the matrimonial home" there shall be substituted the words "or from attending at the place of work of the applicant spouse or any school, nursery or children's centre attended by any child of the family, or from being present within a specified area in the vicinity of the matrimonial home, place of work, school, nursery or children's centre.").

The noble Lord said: This amendment is designed to increase the area over which the court may grant an interdict. The court is entitled to grant an interdict prohibiting a spouse from entering or remaining in or in the vicinity of the matrimonial home. What is suggested should be added are the words, or from attending at the place of work of the applicant spouse or any school, nursery or children's centre attended by any child of the family, or from being present within a specified area".

The original intention is clear and obviously necessary. If there is violence or the threat of violence, the spouse threatening it should be prohibited from entering the house or the vicinity of the house. But it is equally important that if the man—it is usually the man—threatens violence, and there are children, he should be prohibited from going near the children if that is necessary. It would be for the court to restrict any interdict to what was felt to be needed. The same would apply to the place of work. It is therefore necessary, in my view, to give the original Act its intention of protecting the wife so that she is not only protected at home but also protected at places where she regularly is—the school, the nursery school or her place of work. I beg to move.

Lord Wilson of Langside

I support the amendment. A widening of the provision is very necessary if the practical problem of these unfortunate women is to be dealt with effectively.

Lord Cameron of Lochbroom

With respect, I believe that in his argument for this amendment the noble Lord has tended to blur a distinction that is clearly made in the Act itself. The court is empowered by Section 14(2) of the 1981 Act to grant an interdict (that is, an order) which restrains or prohibits any conduct against a spouse or a child. That would cover precisely the kind of circumstances that the noble Lord has mentioned where violence is anticipated, may I say, wherever it occurs.

The section also provides, by a second leg, for an order whereby the court may prohibit the defender from entering or remaining in the matrimonial home or a limited area, a specified area, round about it. The purpose is, again, clear. It is to protect the right of occupancy in the matrimonial home itself. It is only right that the area should be limited.

I feel that perhaps it is necessary to recognise how very wide the terms of an interdict may be under Section 14(2)(a). In one case, the court prohibited the husband from molesting the wife by abusing her verbally, by threatening her, by putting her into a state of fear and alarm or distress and by using violence towards her". That was an entirely general prohibition regardless of area. It is the effective way of dealing with that kind of conduct. I would suggest to your Lordships that the Act already provides for the need to deal with conduct of that kind.

There is then the question of extending the protection by the form of interdict that is otherwise provided—what I might term the extended area interdict. The Scottish Law Commission considered the possibility of extending such interdicts to cover the wife's place of work or the children's school. The commission noted that such an extension might result in the exclusion of the other party, the husband, from particular places within a larger area from which he could not legitimately be excluded. The commission concluded that the solution whereby the area to be covered by a matrimonial interdict was the area surrounding and including the matrimonial home protected the legitimate interests of both the husband and the wife.

It is not competent in Scots law to interdict a person from being in a public place apart from the prohibition upon a spouse by a matrimonial interdict made under Section 4(5) or Section 14 of the Act—that is. the prohibition on a spouse not to enter or remain in a specified area in the vicinity of a matrimonial home. I would suggest to your Lordships that further extension simply of the specified area interdict would, arguably, constitute an unacceptable restriction on civil liberties. I say that because of course the fear, the apprehension, of violent conduct is perfectly adequately covered by the power which is already available to the court under Section 14(2)(a).

Besides that objection, which is one in principle, there is the practical consideration that an extended area interdict which encompasses the matrimonial home, the wife's place of work and the children's school as well as specified areas in the vicinity of all three locations, would be a very cumbersome and restrictive instrument for the purpose of restraining and prohibiting conduct. I would suggest to the Committee that no good reason has been advanced as to why a matrimonial interdict which prohibits molestation would not in practice provide as effective protection in the case where, for instance, a husband persistently waited at a wife's place of work or at the children's school, and that there really is not sufficient justification for extending the coverage of area interdicts to deal with that particular problem.

For those reasons—and, as I say, this is an Act whose workings are being monitored—I would suggest to your Lordships that this amendment should not be accepted. If, when the review of the operation of the domestic violence provisions of the Act is completed, there is substantive evidence that the form of orders which are provided in the Act is not sufficient to solve the problems that have arisen—and it seems to me that the particular problem which the noble Lord, Lord Morton, mentioned is one which would have been adequately dealt with by an interdict along the lines which I have already indicated—obviously consideration could then be given to an extension.

However, for the moment I suggest that there is no warrant for an amendment along these lines, particularly one which, for reasons which the Scottish Law Commission recognised, was making a considerable inroad upon the general principle of Scots law as regards interdicting persons from a public place.

Lord Morton of Shuna

I am much obliged to the noble and learned Lord the Lord Advocate, but I believe that he sees too many difficulties. The court will only grant an interdict if it is satisfied that it is necessary to protect, usually, the wife. I am sure that the noble and learned Lord has been provided, as I have, with examples of cases where the protection afforded by Section 14(2)(a) has not been sufficient.

There is a case in Glasgow where a lady was given an interim exclusion order, an interim interdict, with power of arrest against molestation and to prevent her husband coming into the street where she lived. But every morning and evening the husband would stand outside the child's school, and the court had afforded no protection there. Therefore, the noble and learned Lord is being too optimistic in saying that the law as it stands is sufficient. However, it may be better to wait until the review has taken place, and therefore I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.45 p.m.

Lord Morton of Shuna moved Amendment No. 6: Page 12, line 38, at end insert— ("() After section 14(2)(b) of that Act there shall be inserted the following subsections— (3) In this section and in sections 15,16 and 17 of this Act "spouse" shall include a former spouse. (4) In this section and in sections 15, 16 and 17 of this Act, "spouse" shall include a person living with another person as husband and wife where only one of the parties is entitled or permitted by a third party to occupy the family home.").

The noble Lord said: This amendment is intended to provide for the situation where, as is frequently the case, if there is violence it continues after the decree of divorce. It is perhaps well known that in a broken marriage violence, jealousy and bitterness frequently continue and that there are frequent assaults on ex-wives and, if it is a proper word, ex-cohabitees (though that is a very ugly word).

However, the provisions of the Matrimonial Homes Act restrict the interdict to coming to a conclusion on the dissolution of the marriage and the aim of this amendment is to allow the interdict to continue. In a sense, Amendment No. 6 falls in with Amendment No. 7. Amendment No. 7: Page 12, line 38, at end insert— ("() In section 15(2) of that Act for the words "upon the termination of the marriage" there shall be substituted the words "one year after the date of the interdict unless an application to renew the interdict with or without variation is granted by the court before that date".").

Amendment No. 7 amends the particular section that restricts the interdict to the termination of the marriage. I beg to move.

Lord Cameron of Lochbroom

The purpose of the noble Lord's amendment appears to be to extend to both divorced women and cohabitees protection against violence which is similar to that afforded to married women by the power of arrest which is attached to a matrimonial interdict by virtue of Section 15 of the Act. As the noble Lord has also spoken to Amendment No. 7, I think that it would be convenient if I also answered in relation to both these amendments.

I fully recognise that there is concern about situations in which women are subjected to violence and harassment after divorce. Indeed, I have sympathy with the intention behind the amendment to extend the protection given to a matrimonial interdict with a power of arrest attached to it to divorced women and cohabitees. However, notwith-stand sympathy, I suggest that we must consider very carefully the justification for and the implications of such a radical departure from the original intentions of the scheme which is set out in the 1981 Act and which was the original idea of the Scottish Law Commission.

First, it is necessary to recognise that the comprehensive scheme for protection against domestic violence which was devised by the commission comprised, first, the conferment of occupancy rights upon a non-entitled spouse and the protection of these occupancy rights by exclusion orders and matrimonial interdicts with powers of arrest. This was seen by the commission as being an incident to marriage. It was for this reason that the commission stated in its report that a wife's occupancy rights and any exclusion order or ancillary order must terminate when her marriage ends, whether that is upon death or upon the grant of a decree of divorce or nullity.

It follows from this that the specific remedies provided in the 1981 Act for the protection of occupancy rights must also cease to have effect upon the termination of the marriage. I have to stress that the scheme or protection against domestic violence which was contained in the 1981 Act was specifically designed to address the situation where a wife who was dependent upon her husband as regards the right to occupy the family home might be compelled to endure intolerable conduct at the hands of her husband as the price of her herself and her children remaining in occupation.

Of course, as your Lordships will immediately realise, termination of the marriage by divorce provides a completely new departure; at that stage the court is concerned to deal, for instance, with rights of property. It may, in the situation where there is apprehension that violence will continue even after divorce, pronounce an interim interdict; that is to say, a prohibition against such violent conduct. For these general reasons I would suggest that there is really no good reason for departing from this scheme of things, which was envisaged by the Law Commission and carried out by the legislation in 1981.

Furthermore, it is really doubtful whether it would be appropriate, or indeed necessary, to extend the power of arrest, which is attached to a matrimonial interdict under the Act and which is designed to provide protection against domestic violence, to provide a general remedy against the harassment or molestation of women outside a marriage. For the divorced spouse, there is the fact that one goes to the court, that the domestic relationship is brought to an end by order of the court, and thereafter the divorced woman is entitled to the protection of the general criminal law against any attempt to harass, intimidate or assault her, or to make her leave her home. It is no longer the matrimonial home—it has ceased to be so upon divorce—or at least the matrimonial home of a couple who are still bound by matrimony.

As regards cohabitees, there is a further consideration. It is necessary to recognise that in certain circumstances a cohabiting partner who obtains an interdict against another cohabiting partner can get a power of arrest attached in accordance with Sections 14 to 17 of the 1981 Act. These circumstances are spelled out in Section 18 of that Act. They are, first, where a court has awarded the non-entitled partner occupancy rights in the house under Section 18(1), and, secondly, where both partners, the cohabitees, are entitled jointly to the house. In both these circumstances there are thus competing occupancy rights in the house, and the power of arrest is conferred essentially as part of a parcel of measures designed to enable the parties better to defend these occupancy rights.

I would suggest that at present there is really no evidence to suggest good reason for extending the power of arrest in cohabiting cases beyond these circumstances. In the case of a non-entitled cohabiting partner, that partner can always seek occupancy rights under Section 18. There is then no doubt about the status of that person as a cohabiting partner, and about the right of that person in appropriate circumstances to get interdicts with powers of arrest.

In the case of an entitled cohabiting partner who has difficulty with a non-entitled partner, that person can always get a decree of ejection against the non-entitled partner, and get an interdict against molestation on entering the home, though without the power of arrest. Once the former partner is out of the house there is no question of any subsisting domestic relationship, but there is no doubt that that person is still entitled to the protection of the general criminal law.

I would suggest that really no good reason has been advanced for making any further extension of the power to arrest in the case of a cohabiting person. For these reasons, and bearing in mind that the power of arrest is a drastic remedy and should not be embarked upon with impunity, we should again review the operation of this part of the Act along with the other provisions we have been looking at, and this is continuing at present.

I should say in particular in relation to Amendment No. 7 that there is a further specialty which again would perhaps militate against its acceptance; namely, that the amendment would also require the renewal of the power of arrest under matrimonial interdict at the expiry of each year. That seems an unduly burdensome matter for a spouse who seeks interdict, and again that perhaps indicates the unwisdom at this stage of considering amendments along these lines.

I have endeavoured to set out the reasons why at this stage it would be inappropriate to extend the scheme of the Act beyond what was originally advised, bearing in mind that the courts intervene on divorce and that there are the provisions of the criminal law and indeed the civil law available to any person whatever the circumstances, matrimonial or non-matrimonial.

Lord Morton of Shuna

As usual, I am obliged to the noble and learned Lord the Lord Advocate for his reasons for objecting to my amendment. I do not find his reasons wholly convincing, but bearing in mind his promised review I would withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 7 not moved.]

Lord Wilson of Langside moved Amendment No. 8: Page 12, line 38, at end insert— ("() In section 15(3) of that Act the word "may" shall be replace by the word "shall".").

The noble and learned Lord said: I regard this as a most important amendment. I think that for myself. I should say that the Scottish Women's Aid, who have also expressed a view to me, regard the matter as crucial if women are to be offered actual rather than merely theoretical protection of the interdict.

Section 14 of the 1981 Act invents the matrimonial interdict, and Section 15 empowers the court to attach the power of arrest to such an interdict. It is important to note that this power of arrest has no effect until it has been served on the other spouse and he is thus made aware of the danger of arrest in the event of his acting in breach of the matrimonial interdict.

He cannot be arrested without warrant unless the arresting officer has reasonable cause to suspect that he is in breach of the interdict. If the officer has such reasonable cause to suspect that he may be in breach of the interdict, as the Act stands he may arrest him. The amendment seeks to substitute the word "shall" for the word "may", and in these circumstances—but in these circumstances only—to oblige the officer to arrest.

The Government resisted a similar amendment in the other place. All sorts of reasons for resisting it were put forward, but in particular great stress was laid on the familiar circumstance in matrimonial disputes where a wife is assaulted and the husband is arrested perhaps on a Friday or a Saturday night. He appears in court on the Monday morning and the wife, all tears, asks the court to have mercy and she will take him back, and that "He is really a good man, sir, when he is sober". All this is familiar in the ordinary day-to-day workings of the courts.

5 p.m.

But the situation under this Act is significantly different. The wife is one who has sought the protection of the court and has been given the protection of the court; and, further, the court has attached a warrant to arrest to the interdict which it has granted. It seems to be the case in these circumstances that if an officer has reasonable cause—and he must exercise his judgment about that—the duty to arrest should be obligatory. I have been given many illustrations of the kind of situations which arise which have given those representing these women great cause for concern.

I think the grounds for the Government's rejection of the amendment in the Commons were altogether feeble. But, in addition, the Crown Office was written to by Women's Aid on 10th July last year and they replied, including an explanation of the delay, on 21st November. I hesitate to be critical of the Crown Office because I know that it may tempt the noble and learned Lord the Lord Advocate to hasten to the protection of his department rather than to consider the merits of the case. At one stage I thought 1 had better not be too critical. However, I have consulted with those responsible for Women's Aid about their reaction to this letter. I think it is typical of the way in which bureaucrats can make relatively simple situations seem incredibly complex.

I am not saying that the job of a police officer in deciding whether to arrest someone or not is altogether simple but it is his job. The situation is one which he is trained to deal with. This letter, in my view, represents the question of whether or not in the situation that we know exists of women in difficulties it is necessary that the police should be given a discretion. Why should a police officer have a discretion if the person who is in breach of interdict has been alerted to the circumstances that if he does commit a breach he will be liable to arrest?

In fact, before these provisions were enacted, the police traditionally never liked getting involved in matrimonial disputes. This is part of the difficulty. One heard cases almost daily in the law courts where the police were faced with a very difficult decision where there had been a row in a house and the police had been called by the neighbours to deal with it. I can understand perfectly well their reluctance when they appeared on the doorstep and the wife was perhaps trying to calm things down because she did not want her husband to be taken away.

But that is not the situation which this measure is designed to deal with. This is something different. This is a case where a wife has sought the protection of the court and has been given it. If there is a breach I think that the police, if they have reasonable cause to believe that there has been a breach, should act accordingly. It is with this sort of consideration in mind that I beg to move the amendment.

Lord Morton of Shuna

I hope that many of your Lordships accept that wives who eventually go to court complaining of violence usually do so only as the very last resort. They usually have been submitted to considerable violence. They feel in some way humiliated and a failure because of the violence to which they have been subjected and are therefore very reluctant to go. They feel they have lost face. All this I would suggest should be recognised both by the police and by the courts, who should not adopt the attitude that this is just domestic violence, that it is just a normal case of a husband knocking the wife about a bit. But, in spite of that, I think it would be highly dangerous to give an instruction that in any circumstances a police constable shall arrest.

The duties of a police constable I would remind your Lordships are defined in the Police (Scotland) Act 1967. He has a duty to prevent the commission of offences, to preserve order, to protect life and property and, where an offence has been committed, to take all lawful measures and make such reports to the appropriate prosecutor as may be necessary for the purpose of bringing the offender with all due speed to justice.

But the next phrase is vitally important to the freedom of the citizens in Scotland. It shall be part of his duty to take every precaution to ensure that any person charged with an offence is not unreasonably and unnecessarily detained in custody". That is a very important constitutional safeguard to the freedom of the citizens in Scotland. I should be very reluctant to see that watered down in any way at all. Therefore, while I accept and support the feelings behind the amendment of the noble and learned Lord, Lord Wilson of Langside, I do not feel that the word "shall" should ever be imposed in these circumstances.

Lord Cameron of Lochbroom

I would place on record that the Government are as concerned as anyone to ensure that the 1981 Act provides the effective protection against domestic violence that it was intended to. Indeed, I also accept that any protection afforded by a matrimonial interdict with an attached power of arrest will be illusory unless there is a satisfactory procedure for its enforcement.

I would stand alongside the noble Lord, Lord Morton, in what he has said as to the effect of the change that the word "shall" would have as opposed to the word "may". Without hesitation, I would endorse entirely what he says about the need to retain a degree of discretion on the part of a police officer in carrying out his duties, particularly those which are placed upon him by Section 15 of this Act. Nevertheless, I take the noble and learned Lord's point that there must be an understanding of what this Act is intended to provide.

I would state categorically that the protection of an applicant spouse must be one of the paramount considerations; and indeed the guidelines issued to the police by my predecessor emphasised that the presumption in such cases should be that the non-applicant spouse would be arrested and that only in trivial cases should the discretion not to arrest be exercised. Nevertheless, it is important that that discretion should exist, and for the reasons that were so forcefully put before your Lordships by the noble Lord, Lord Morton. I am obviously aware of the concern which has been expressed by those in another place and by Scottish Women's Aid. I am presently considering whether there is some clarification or strengthening of the guidelines that might helpfully be given to the police.

Furthermore, there is another aspect of this: that is the question of police training on the purpose of this Act. When the review of the guidelines has been completed, I would be prepared to discuss with the Association of Chief Police Officers in Scotland whether the training and instruction on the Act which is given to police officers, both locally and at the Scottish police college during their training, might not be enhanced to give greater emphasis to the points which have been mentioned as being matters of specific concern. I would only say, on my understanding of the debate in another place, that the conclusion reached there was that that was a more sensible way forward than by an amendment of this kind: that is to say, to address such problems as exist by concentrating on police training, and if necessary by clarification of the guidelines issued to chief constables. As I say, I wholly concur in that conclusion. To proceed in any other way, I suggest, would involve a very radical departure from a long-established statutory convention as regards powers of arrest which is found to be practical in application. To do otherwise, as suggested by this amendment, would produce a rigidity in the operation of the Act which might well be counter productive, and in certain circumstances contrary to the best interest of either or both of the spouses. For these reasons, I cannot commend this amendment to the Committee.

5.15 p.m.

Lord Wilson of Langside

I am grateful to the noble and learned Lord the Lord Advocate for his reply. I am always uneasy when in situations of this kind questions of high constitutional principle are raised. It may be that in presenting my amendment I overstated the case in its favour. That may well be so. If I did, it was in part because what I have read of the exchanges which have taken place between the Crown Office and Women's Aid and what I have read of what was said in the other place has left me with the impression that Government, as represented by the Crown Office—and certainly this letter to which I have referred, very much gave me this impression—and the Crown Office in particular, which are closely involved, did not appreciate the difficulties derivng from this discretion and from the operation. Having the background of the old traditional police approach to matrimonial disputes and the Lord Advocate's guidelines, I had felt that all was well.

The reaction by the bureaucrat in the Crown Office (whoever he was) was in effect to say that the status quo is well; but everyone I have spoken to who is closely involved in the problem of battered wives appears to me to be satisfied that all is not well. It may be that I should not have put down the amendment in quite that blunt form but that I should have included a proviso to the effect that if the woman was in danger, or something of that kind, the constable must arrest; if there is danger to her life or limb, or if the children should be in danger when the police were called. Perhaps I should have included something in those terms.

However, I am encouraged a little by what the noble and learned the Lord Advocate said—although, if I may say so without offence, I thought he was rather slow to come to it—because he seemed to be beginning to see the urgency of this problem. When Women's Aid wrote to the Crown Office they did not get a reply for four months. There was an explanation for that, because they were consulting with everyone under the sun. But one is left with the impression that they think this is something they can just sit on indefinitely without any urgent action being taken. This is something, so far as I have been informed, on which urgent action is needed. This is what I would urge on the Government.

I shall ask leave to withdraw the amendment but I shall bring the matter back at a later stage. In the meantime, I hope that the Government will appreciate the need for a more careful, thorough and speedy look at the whole problem of those many women who are reported as feeling that, having gone to the courts, they are not really getting the protection that they ought to be getting. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Morton of Shuna moved Amendment No. 9: Page 12, line 43., after ("include") insert ("(a)").

The noble Lord said: With your Lordships' leave, it would appear appropriate to take Amendment No. 10 with Amendment No. 9. Amendment No. 10: Page 13, line 2, at end insert— ("; or (b) a residence which is the subject of an order made under section 13(1) of or under paragraph 6 of Part 1 of Schedule 2 to the Tenants Rights, Etc. (Scotland) Act 1980 or the subject of a voluntary transfer agreement accepted by the landlord where the spouse to whom the tenancy is transferred is living separately from the other spouse at the time of the transfer.").

Amendment No. 9 merely inserts an "(a)" to allow a new paragraph (b)—the subject of Amendment No. 10—to be inserted.

Clause 13(10) puts in a definition of what is not to be a matrimonial home: that is, a home or residence provided by one spouse for that spouse to reside in, whether or not with any child of the family. That is entirely appropriate, but as I read it that means a new or different house from the matrimonial home

The amendment I am proposing has a deficiency in it because after the words "section 13(1) of" there should have been a reference to the Matrimonial Homes (Family Protection) (Scotland) Act. The amendment I am proposing is intended to cover the case where there is a matrimonial home which on the breakdown of the marriage it has been agreed, or the court has ordered, should be vacated by one and occupied by the other.

Under the Act as it is, my interpretation of it is that that would remain a matrimonial home during and after the breakdown; and that I am sure would not be the intention. It would cause difficulty because the husband—since we are usually talking about husbands in these situations—would have a right to come back to the house although he had previously agreed with the wife that he should leave. I beg to move.

Lord Cameron of Lochbroom

I cannot commend this amendment to your Lordships for two grounds. The first is a technical one, but it is important. The noble Lord opposite has accepted that there is a deficiency in the form of Amendment No. 10 in its reference to Section 13(1); it should state, "of the 1981 Act". But I should add that the further reference to paragraph 6 of Part I of Schedule 2 to the 1980 Act is again otiose in the sense that that paragraph was repealed in 1981. But while recognising that the amendment is technically defective, I should, however, accept the spirit in which it is moved and I would reply to it in that way.

I should say that when a similar amendment was discussed in another place an attempt was made to have paragraph 6 of the 1980 Act reinstated. I therefore assume from the fact that it appears in Amendment No. 10 that that is what the noble Lord, Lord Morton, had at the back of his mind. That was a provision which allowed landlords to apply to the courts for recovery of possession of a public sector house in order to transfer the tenancy on marital breakdown. The effect of Section 13 of the 1981 Act, which repealed and replaced that paragraph, was to provide that an order transferring the tenancy of the matrimonial home could be made by the court on the application of a non-entitled spouse. This was intended to provide for a fairer balance between the interests of the entitled and non-entitled spouses.

In another place, my honourable friend the Minister for Home Affairs and the Environment indicated that he was not unsympathetic to the arguments that local authorities should in certain circumstances be given power to seek a court order for a transfer of tenancy. He was, however, concerned about difficulties for the courts arising from overlapping actions under a two-tier system; that is, if the 1980 Act provision was restored and allowed to stand alongside Section 13 of. the 1981 Act. My right honourable friend indicated that he was expecting a report from the Institute of Housing which had been looking into the matter, and he undertook to consider its recommendations and to consult on any proposals that it might make for legislative change.

I understand that this report was received by my honourable friend only at the end of last month. He indeed recommends that paragraph 6 of Schedule 2 to the 1980 Act should be reinstated. My honourable friend intends over the summer to consult legal interests, and the public sector landlords themselves, over this proposal. If at the end of that process it is generally agreed that the change is desirable, he will seek an early legislative opportunity.

Leaving aside the question of any defects in its wording, may I return to the reasons why, apart from that, I feel that the present amendment is misguided in principle? First, it erodes the occupancy rights of entitled spouses in tenanted housing. Under the 1981 Act, a spouse can only be compulsorily deprived of his occupancy rights in a matrimonial home if an exclusion order is granted against him under Section 4. The order will, as we have heard already, be granted only if it is necessary for the protection of the other spouse of the children. By this amendment, however, an entitled spouse could be compulsorily deprived of his occupancy rights merely on the grounds that the tenancy had been transferred.

The court's discretion to transfer under Section 13 of the 1981 Act is very wide. Conduct may be a relevant factor but there is no requirement to produce evidence of violence. If this amendment were accepted, therefore, it would be a major breach of the principle that spouses should only lose their occupancy rights on the grounds of threatening or violent conduct. In the case of a voluntary transfer of tenancy between spouses this might be done for various reasons. It cannot be inferred that the transferor necessarily intended to give up his occupancy rights and it would be unfair to deprive him of those rights unless his conduct required it.

I believe that there is a second difficulty with this amendment. It seeks to provide that the residence should cease to be a matrimonial home upon transfer of tenancy only when the spouses are living separately. This could give rise to a number of anomalies. What would happen if, for example, the parties were living separately at the time of transfer but subsequently resumed living together? It would seem perverse if the house ceased to be a matrimonial home under these circumstances, especially if the transfer was voluntary and the spouses were living separately due to circumstances other than their unwillingness to live together and intended that the residence should remain their matrimonial home. The converse is that, if the party were living together at the time of transfer but separated shortly afterwards, the house would remain a matrimonial home. That seems to defeat the object of the amendment. Indeed, I suggest that the question of whether the spouses were living separately or together at the time of transfer could itself give rise to troublesome disputes and litigation.

Finally, I suggest that this amendment could well detract from the protection given to women against domestic violence under the 1981 Act. Let me explain how this comes about. Because the residence would cease to be a matrimonial home, the wife would lose the right to obtain an exclusion order with the attendant automatic interdict excluding the husband from the matrimonial home and the other remedies which are available under Section 4(4) and (5) of the 1981 Act. The wife would also lose the right to an interim exclusion order under Section 4(6).

If the house were no longer a matrimonial home, the wife could still obtain an order interdicting the husband from harassing her, but a power of arrest could only be attached to such an interdict if the conditions of Section 15(1)(b) were satisfied. I suggest, therefore, that the wife would be in a stronger position if the house remained a matrimonial home and she sought and obtained an exclusion order, as well as the transfer of tenancy. I am sure that your Lordships will agree that the compulsory extinction of occupancy rights is not a step to be taken lightly. The difficulties and objections which are inherent in this amendment would therefore lead me to advise the Committee that it would be better to reject it, even though the amendment were not itself defective, however, even on that ground I suggest to the noble Lord that it would not at this stage be worthwhile pursuing it further.

Lord Morton of Shuna

In view of the fact that there is some proposal for legislation on the public sector side of this matter, I would beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 10 not moved.]

Clause 13 agreed to.

Clause 14 [Remit from Court of Session to sheriff]:

Lord Morton of Shuna moved Amendment No. 11: Page 13, line 18, leave out ("at its own instance or").

The noble Lord said: This clause gives the Court of Session a right to remit an action to the sheriff court. The amendment which I am proposing is to leave out the words, "at its own instance or", so that it would be only on the application of any of the parties to the action that the court could remit the case to the sheriff court.

It is difficult to see why an action which the parties consider appropriate to be in the Court of Session—which has to be one which is competent in the Court of Session—should be subject to the judge saying, "No matter what you, the litigants, think, I say it is going into the sheriff court", without apparently any power to the parties to direct the judge of the Court of Session as to which sheriff court it should go. It seems to me strange that the court should have power to decline jurisdiction in a situation where jurisdiction is competent—and it is the Supreme Court in Scotland. If the parties want the benefits of that and are prepared to pay for it, I have difficulty in seeing why the court should refuse them that right in a competent action.

As regards the sheriff court, it is only in the case of divorce or custody or adoption of children that the sheriff, at his own instance—therefore, against the wishes of the parties—can insist on the case going to the Court of Session. It seems to me inappropriate that this right should be given to the judge of the Court of Session against the wishes—which is what it means—of the parties to the action. I beg to move.

5.30 p.m.

Lord Wilson of Langside

I also put my name to this amendment and I support it. I do not regard it as a matter of great importance, or as one which need take up much of your Lordships' time. But on the face of it, I felt that it was difficult to understand why if, under our peculiar system of concurrent jurisdiction between the sheriff court and the Court of Session in civil matters, parties chose to go to the Court of Session, the Court should say "No, you cannot come here", albeit that because the case could be dealt with more quickly and more cheaply in the sheriff court there might be much to be said for it going there. I felt that I should ask the Government to explain why. If there is a good reason for giving the court this power, let the court have it.

Lord Kirkhill

It seems to me that the clause as drafted—indeed, my noble friend Lord Morton of Shuna has just made this point—allows the Court of Session to decide at its own instance that, for example, it will no longer allow particular types of divorce case or any types of case to be heard in the Supreme Court. Therefore, does it not follow that the wishes of both parties to the case can be over-ruled and the Court of Session can effectively alter its jurisdiction for practical purposes without Parliament's express approval, though traditionally such approval has been necessary? I should be interested to hear what the noble and learned Lord the Lord Advocate has to say on that very point.

Indeed, I have been interested to hear his responses to the numerous amendments placed before him this afternoon. So far, it has been a fairly miserable experience for those of us on the Benches on this side of the Committee, and I hope that, in the course of ensuing amendments, he will display a greater flexibility than has been apparent thus far, because, although nothing much may happen today if he does not, he must know that there will come a day when we will ambush him.

Lord Cameron of Lochbroom

Obviously, I listen to everything that the noble Lord, Lord Kirkhill, says particularly when it has a tinge of hell-fire in it. But I undertake to explain why this clause is here and why, at the moment, I am not prepared to accept this amendment.

The noble Lord, Lord Morton, will be well aware that there are circumstances even now when parties may wish to go to the Supreme Court and when, for instance, they are seeking legal aid which may not be provided to them for that purpose. Harking back to certain remarks that he has made in the past about the pressure of work in the Court of Session, the noble Lord will recognise that there may be the occasional case which, on any view, is thought to be unsuitable.

What I would make absolutely clear—and perhaps this is in response to what was said by the noble Lord, Lord Kirkhill—is that the clause as drafted does not allow the court to exclude whole categories of actions. It is only in regard to a particular case that am remit would take place. Thus the effect of this amendment would be to remove what the clause endeavours to provide, which is that a Court of Session judge should have the power to initiate the transfer of a case to the sheriff court where the judge thought that the nature of the action made such a remit appropriate.

Examples might be where there were other related proceedings currently before a sheriff court. The noble Lord opposite may well recollect actions for damages for personal injuries where the same issue has arisen; but one action was raised in the sheriff court and another action arising out of the same incident—though not, I accept, between wholly the same parties—has been raised in the Court of Session. There are also circumstances where, for reasons of efficiency and for the convenience of parties, it would be desirable that both sets of proceedings should be dealt with in the one court. The effect of the amendment would be that in such a case a remit would be possible only where one of the parties applied for it. I suggest to your Lordships that it is entirely appropriate that the control which a Court of Session judge exercises over the proceedings before him should extend to having this power of remit.

It cannot seriously be suggested—and, perfectly properly, it has not been suggested—that such a discretionary power was likely to be abused. After all, a Court of Session judge, who is one of the most senior Scottish judges, should be able himself to raise the question of whether a remit is appropriate, and I am certain that he would not order a remit without having fully considered the views of the parties. If there was any doubt as to whether he was right to order a remit to the sheriff court, then there are available the usual rights of appeal against his decision.

I suggest there is a distinction between this and the reciprocal statutory provision providing for remits from the sheriff to the Court of Session because there the fact is that the sheriff is remitting to a higher court. But the fact that the sheriff can remit only in certain cases does not, I suggest, necessarily imply that the power of a Court of Session judge to remit to the sheriff court should be similarly defined. For these reasons, I suggest that there is no impropriety whatsoever in providing for a Court of Session judge this power to remit, apart from any motion that may be made by one or other party to the action.

Lord Morton of Shuna

It is the normal position that parties to an action are at arm's length and not agreeing with each other. I have great difficulty in foreseeing a case in which both parties fail to accept any hint from a judge that one of them may think of moving that the case should be taken to the sheriff court. But it is in that situation, and only in that situation, that the Court at its own instance will move for a case to be sent to the sheriff court. However, this is hardly a matter on which I wish to divide the Committee and therefore I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 12 not moved.]

Clause 14 agreed to.

Clauses 15 to 17 agreed to.

Clause 18 [Small claims proceedings]:

Lord Cameron of Lochbroom moved Amendment No. 13:

Page 16, line 8, leave out from beginning to end of line 14, and insert—

("18.—(1) For subsection (2) of section 35 of the Sheriff Courts (Scotland) Act 1971 (summary causes) there shall be substituted the following subsection—

"(2) There shall be a form of summary cause process, to be known as a "small claim", which shall be used for the purposes of such descriptions of summary cause proceedings as are prescribed in an" ").

The noble and learned Lord said: With the leave of the Committee, in moving this amendment perhaps I may speak also to Amendments Nos. 15, 17, 21, 23, 26, 28 to 35 and 37 to 39.

Amendment No. 15: Page 16, line 20, leave out ("small claims proceedings") and insert ("a small claim").

Amendment No. 17: Page 16, line 23, leave out ("small claims proceedings") and insert ("a small claim").

Amendment No. 21: Page 16, line 30, leave out ("small claims proceedings") and insert ("a small claim").

Amendment No. 23: Page 16, line 34, leave out ("claims proceedings") and insert ("claim").

Amendment No. 26: Page 17, line 10, leave out ("claims proceedings") and insert ("claim").

Amendment No. 28: Page 17, line 16, leave out ("proceedings") and insert ("small claim").

Amendment No. 29: Page 17, line 18, leave out ("proceedings") and insert ("small claim").

Amendment No. 30: Page 17, line 19, leave out ("proceedings") and insert ("small claim").

Amendment No. 31: Page 17, line 20, leave out ("small claims proceedings") and insert ("a small claim").

Amendment No. 32: Page 17, line 21, leave out ("proceedings") and insert ("small claim").

Amendment No. 33: Page 17, line 23, leave out ("small claims proceedings") and insert ("a small claim").

Amendment No. 34: Page 17, line 25, leave out ("small claims proceedings") and insert ("a small claim").

Amendment No. 35: Page 17, line 27, leave out ("small claims proceedings") and insert ("a small claim").

Amendment No. 37: Page 17, line 30, leave out ("small claims proceedings") and insert ("a small claim").

Amendment No. 38: Page 17, line 32, leave out ("small claims proceedings") and insert ("a small claim").

Amendment No. 39: Page 17, line 44, leave out ("small claims proceedings") and insert ("a small claim").

The purpose of this amendment (the others being consequential upon it) is to make it as clear as possible that there will be a new procedure within the existing summary cause procedure to be known as "a small claim", instead of the words which appeared previously, "small claims proceedings". This procedure will be mandatory for all those cases which qualify as a small claim—those cases being the ones which will be prescribed in an order which the Lord Advocate will have power to make. That order will set out those descriptions of summary causes which are to be treated as small claims and will set the financial limit for the new procedure. Cases which fall outside those descriptions and above that financial limit will be dealt with under the present summary cause procedure.

The first amendment does not make any change of substance. It is essentially a drafting amendment designed to clarify and simplify this provision in the Bill. The neater expression "small claim" has been used because it is felt that this succinct expression might be useful to all those who use the procedure and more particularly to lay persons in whose particular interests this whole procedure is being established. The remaining amendments might seem to be rather daunting, but I assure your Lordships that they are simply further drafting amendments made necessary by the adoption of the expression "small claim". I beg to move.

Lord Morton of Shuna

In the hope that it might be reciprocated at some time today, I merely say that I welcome the amendments.

5.45 p.m.

Lord Drumalbyn

Perhaps I may ask my noble and learned friend one or two questions. First, I think I am right in saying that in the other place it was suggested that the maximum sum for small claims should be set between £500 and £1,000. Am I to understand that the order will go into quite a considerable amount of detail as to how it is determined where the sum is going to lie in any particular case? May I suggest to my noble and learned friend that £500 seems to be rather small? I have had representations from the Scottish Consumer Council, which is of the opinion that in many cases £1,000 would not be enough. I have been given some examples where it would indeed be scanty. I do not know whether my noble and learned friend can expand on that.

May I also ask my noble and learned friend—it is a linked question—why this is to be a negative order presented in either House—not in both Houses, but in either House? In my experience that is, to say the least, rare. Perhaps my noble and learned friend will be able to expand on that point.

One of the reasons of principle why these small claims should be set up is that there is no certainty that compensation will be awarded. The main difficulty is that compensation will be awarded. The main difficulty is that without having small claims it would not be possible in many cases for a person to bring a case to court at all. I am told that very often a solicitor will advise a client who asks whether it is desirable to bring a case not to do so because it would not be worthwhile. That is a very good reason; but, on the other hand, it is conceivable that this new facility could be abused in certain cases.

I understand also that the Law Society has agreed that the higher level of £1,000 should be applied. In any case I should have thought that, as of now, with money at its present rate £500 would not be adequate. The principle here is that the financial limit for small claims should be high enough to cover the majority of cases involving consumers. It seems to me quite clear that that would not be so in many cases. One of the most common reasons for cases of this kind relates to cars. One does not get very much by way of a car for £500 nowadays. I have a list of cases where it is quite patent that those who are contemplating claims have had to desist from them simply because it would be almost impossible to take advantage of the proceedings. For example, in a case that came to my notice a student bought a car which broke down completely. He finished up by having to drive back to the dealer who sold him the car. The student was about to go back abroad. While he waited for the car to be repaired he incurred hotel expenses, and so on. He was very much out of pocket. As for the dealer, all he did was to send him the bill for replenishing the petrol in the tank. That kind of case ought to be assisted. The best way of assisting it is by making certain that a case can be made.

Baroness Elliot of Harwood

I should like to support this amendment and the new clause which my noble and learned friend has just moved. I believe that we have all received a lot of information from the Consumers' Association. As the Committee will know, I am a very strong supporter of consumer cases. Judging from the associations's memorandum, this will be a very important and useful provision. Many people do not go to court over small cases because they think that the procedure is too expensive, and evidence of that is given in the association's material.

Such a provision has been very successful in the English courts. I know that we are very fond of putting Scottish law into England but on this occasion the English have got the better of us and we are to put English law into the Scottish courts. I support this amendment. I am sure that it will prove to be very advantageous and will have the support of a great many people in Scotland.

Lord Cameron of Lochbroom

I am very grateful to my noble friends who have spoken. To deal first with the two points of my noble friend Lord Drumalbyn, the first matter which concerned him was the financial limit for small claims. I must make it clear that as yet no decision has been taken on this matter. My honourable friend the Solicitor-General in another place indicated that it was likely that the financial limit might be fixed somewhere between £500 and £1,000. At the same time, he mentioned that the Government might review the current level of £1,000 which is the upper limit for summary causes within which, of course, small claims would fall. The amounts will be fixed after we have had representations made as to the appropriate level.

I say to my noble friend Lady Elliot that in England the limit is presently £500. I shall be cautious in following necessarily all precedents from south of the Border but I certainly accept that in this particular case the English courts have provided a procedure at which we have looked in order to give rise to this provision.

The second matter which my noble friend Lord Drumalbyn raised was in relation to the provision for the negative resolution procedure. I am advised that such is the normal practice and that either House can negative the order. That is the reason why it appears as it does in the Bill. In fact, an amendment dealing with this matter has been put down on the Marshalled List.

Baroness Carnegy of Lour

Before my noble and learned friend sits down, is it not the case that the £500 limit for England was fixed in 1981? That figure is considerably out of date. I believe I am right in saying that the Consumers' Association is anxious that the top limit should be as high as possible and reckons that, in view of the cost today of a suite of furniture, or whatever may be the goods in dispute, the figure of £1,000 is by no means too high.

Lord Cameron of Lochbroom

My noble friend is quite correct. The limit for England was fixed as long ago as 1981.1 am not aware of any intention to raise that limit at present. I simply make the point that we will consider this aspect in the light of representations made so far as our procedure is concerned. Obviously the kind of point which my noble friend has just mentioned will be a very compelling matter to consider.

On Question, amendment agreed to.

Lord Wilson of Langside moved Amendment No. 14: Page 16, line 16, leave out from ("instrument") to end of line 17 and insert ("a draft of which has been laid before and approved by a resolution of each House of Parliament.").

The noble and learned Lord said: The object of this amendment is to make the order subject to the affirmative resolution procedure instead of as it now stands. I could understand it if these provisions for small claims proceedings appeared in a sheriff court Act or an administration of justice Act, or in other legislation of that nature. There, the negative resolution procedure might have been appropriate because we would not be in the same position as that which we are in in respect of this Bill.

As I indicated on Second Reading, I find this Bill a particularly difficult one with which to deal. Because it ranges over such a vast number of different aspects of law, it is much more difficult for ordinary Members of this House, or for some lawyers without resources except their own knowledge of law and procedure, to subject the Bill to the kind of scrutiny which it obviously needs.

With that in mind, I wonder what the view of the noble and learned Lord the Lord Advocate or the Government would be about permitting this matter to be dealt with by the affirmative resolution procedure. It seems to me that it would have much more to commend it.

The provisions of the order will be of very great importance and concern both to consumer interests in Scotland and to the Law Society of Scotland. There are competing views from those two interests, as one would expect—at least, as would not surprise one. I beg to move.

Lord Cameron of Lochbroom

I should make it clear that what is provided for in the Bill is done with reference to precedent. For instance, order-making powers which are similarly subject to the negative rather than the affirmative resolution procedure were granted, for example, in Section 2 of the Divorce Jurisdiction, Court Fees and Legal Aid (Scotland) Act 1983. That Act allowed the Lord Advocate to prescribe the class or classes of undefended divorce actions in which the rule requiring corroboration is not to apply. There is further precedent in the Litigants in Person (Costs and Expenses) Act 1975, where the negative resolution procedure for orders prescribing those proceedings, other than those mentioned in the Act to which it applied, was also provided.

I should hasten to add that, as your Lordships will be only too well aware, the negative procedure permits noble Lords who wish to debate the order to move that the order should be annulled, for the purpose of debate. Obviously my mind is not closed on the matter but I assure the noble and learned Lord that this is done with regard to precedent. It is being done in relation to the prescription of the classes of small claims and in accordance with the two examples that I have already given in relation to the value of the no expenses claims and the valued expenses—the three particular areas where there are orders. I should have thought that, having regard to the precedents, the provision for negative resolution procedure is perfectly appropriate. Of course, there are other matters which will be regulated in the procedural rules which will be made by the Court of Session.

6 p.m.

Lord Campbell of Alloway

I totally agree with my noble and learned friend the Lord Advocate that this is in accordance with precedent and that the affirmative procedure is, according to precedent, used where there is some form of departure from the intention of the section. But I wonder how long this precedent should stand as a precedent, just because it is a precedent. Here is perhaps a case where consideration could be given, although within the precedent, to a departure from it.

Descriptions of summary causes are a matter of crucial and cardinal importance. I am sure that that has prompted the noble and learned Lord, Lord Wilson of Langside, to table his amendment. In any event, there is an advantage in the affirmative procedure and I wonder whether there is any prospect of consideration of the amendment and its merits.

Lord Cameron of Lochbroom

I feel in the light of what your Lordships have said that I wish to consider this matter further. If the views which I have expressed were to change, obviously that could be dealt with on Report. With that assurance, perhaps the noble and learned Lord will wish to withdraw his amendment.

Lord Wilson of Langside

I am grateful to the noble and learned Lord and to the noble Lord, Lord Campbell of Alloway. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Cameron of Lochbroom moved Amendment No. 15:

[Printed earlier: col. 195.]

On Question, amendment agreed to.

Following is the text of the amendment (No. 15): Page 16, line 20, leave out ("small claims proceedings") and insert ("a small claim").

[Amendment No. 16 not moved.]

Lord Cameron of Lochbroom moved Amendment No. 17:

[Printed earlier: col. 195.]

The noble and learned Lord said: I should like to move this amendment together with Amendment No. 18: Page 16, line 25, at end insert ("or").

I beg to move.

On Question, amendments agreed to.

Following is the text of Amendment No. 17: Page 16, line 23, leave out ("small claims proceedings") and insert ("a small claim").

[Amendments Nos. 19 and 20 not moved.]

Lord Cameron of Lochbroom moved Amendment No. 21:

[Printed earlier: col. 195.]

The noble and learned Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Following is the text of the amendment (No. 21): Page 16, line 30, leave out ("small claims proceedings") and insert ("a small claim").

[Amendment No. 22 not moved.]

Lord Cameron of Lochbroom moved Amendment No. 23:

[Printed earlier: col. 195.]

On Question, amendment agreed to.

Following is the text of the amendment (No. 23): Page 16, line 24, leave out ("claims proceedings") and insert ("claim").

Lord Cameron of Lochbroom moved Amendment No. 24:

Page 16, leave out lines 38 to 43 and insert ("to a party to a small claim who—

1. (a) being a defender—
1. (i) has not stated a defence; or
2. (ii) having stated a defence, has not proceeded with it; or
3. (iii) having stated and proceeded with a defence, has not acted in good faith as to its merits; or
2. (b) being a pursuer or a defender has acted frivolously, vexatiously or otherwise unreasonably in relation to the claim.").

The noble and learned Lord said: The purpose of this amendment is to make as clear as possible the circumstances in which a party, and particularly a defender, will not be eligible for the special expenses provisions in connection with a small claim. The provisions provide either for no expenses to be awarded or for there to be a set limit on the maximum amount of expenses which the sheriff can award. However, we recognise that it would be totally inequitable to apply these expenses provisions in certain cases; such as actions raised by public utilities which are, in substance, not defended either because no defence is stated or because a defence, if stated, is spurious or not made in good faith.

To allow such actions to qualify for the special expenses provisions, particularly for the exemption from any expenses if the pursuer was successful, could have serious consequences. In effect, it would be an encouragement to debtors not to pay their bills since they would know that the creditor would be discouraged from sueing to recover the debt since an award of expenses would either be nil or limited.

For those reasons paragraph (a) in the amendment sets out the three circumstances in which the defender will not enjoy the benefit of the small claims expenses provision. These are, first, where the defender has lodged or stated a defence—and the word "stated" is taken from the summary course rules; secondly, where he has stated a defence but done nothing further; and, finally, where he has stated a defence and proceeded with it but it is clear that the defence is spurious and that the defender is not acting in good faith and is purporting to proceed with his defence with the object of reducing the amount of his liability to expenses. Paragraph (b) provides a general residual power to the sheriff to disapply the small expenses provision in the Bill and to make an award of expenses on the same basis and as in a summary cause which is not a small claim.

The particular purpose of the amendment is to make clear that the sheriff's power to award expenses can be used to award expenses against either the pursuer or a defender where the sheriff thinks that his actions in the proceedings are of a type described; that is, they are frivolous, vexatious or otherwise unreasonable. I should say that that phrase is used advisedly. It is a phrase which is precedented, in particular, in the rules of industrial tribunals. In the regulations which were issued this year, which have precedent in earlier rules, there is provision that a tribunal may, where an applicant has acted—or, indeed, any party has acted—frivolously, vexatiously or otherwise unreasonably, make an order for expenses. It is to give as wide a discretion as is possible to a court to deal with the particular disapplication of this small expenses provision. I beg to move.

The Deputy Chairman of Committees (Lord Murton of Lindisfarne)

I should point out that if this amendment is agreed to I shall not be able to call Amendment No. 25.

Lord Morton of Shuna

I welcome this amendment so far as it goes, in that it is an improvement on what the Bill previously had. However, I suggest to the noble and learned Lord the Lord Advocate that there is no point in paragraph (a)(iii) because if a defender, having stated and proceeded with a defence, has not acted in good faith", it is difficult to see that he is not caught by having acted "unreasonably". Therefore, I suggest that paragraph (a)(iii) is unnecessary and otiose.

In paragraph (b) I suggest also that "frivolously, vexatiously or otherwise" will not widen the discretion but materially restrict it because there is an interpretation open under the ejusdem generis rule that unreasonableness will be restricted to being frivolous and vexatious. I should have thought that the intention of the noble and learned Lord the Lord Advocate is covered by the word "unreasonably" by itself.

Lord Cameron of Lochbroom

I am grateful to the noble Lord. In the light of what he has said, I shall think further about this before the Report stage. As I say, there is precedent, but obviously we do not wish to run foul of the ejusdem generis rule and it is intended to give the sheriff as wide a discretion as possible. Therefore I shall undertake to consider what the noble Lord has said, particularly since it is raised by what I think is down as a subsequent amendment.

On Question, amendment agreed to.

[Amendment No. 25 not moved.]

Lord Cameron of Lochbroom moved Amendment No. 26:

[Printed earlier: col. 195.]

On Question, amendment agreed to.

Following is the text of the amendment (No. 26):

Page 17, line 10, leave out ("claims proceedings") and insert ("claim").

Lord Wilson of Langside moved Amendment No. 27:

Page 17, line 14, leave out ("of his own accord or").

The noble Lord said: This amendment, which will exclude the sheriff from acting on his own initiative and directing that the proceedings shall be treated as a summary cause instead of a small claim, is inspired by a remembrance of a practice in the sheriff court in the old days when there was a provision under the 1907 Act that in summary civil causes the sheriff could adopt whatever procedure that he thought was appropriate. This was a splendid provision because the sheriff could simply do whatever he liked. They were mostly simple, straightforward cases; the sheriff could take a statement from the defender as to whether he had a defence, and in fact it was a kind of small claims procedure that was envisaged.

There was very little formality, though the rules of law, of evidence and procedure had up to a point to be followed. There was this simple alternative; but in fact there were many sheriff courts in the country which never used these procedures, and the sheriff, because it made his life easier, would require written proceedings. It dragged out the whole process which took much longer than it needed and made it a little more expensive.

With that in mind, I wonder whether the noble and learned Lord the Lord Advocate and the Government would like to reflect on whether it is prudent to allow sheriffs to do this of their own accord or whether there may not be a danger that they could succumb to a kind of professional temptation to have everything down on paper, though neither of the parties really wanted it. It is just a suggestion that may be worth considering, which I offer to the Lord Advocate. He may like to take it away and think about it.

From my experience in the courts over the years I think that there may be a danger in that kind of approach. I say this with all respect to the judges in the sheriff courts and without any criticism of them. It is just one of those things that tend to creep into practice.

From 1907 there was a simple, speedy and inexpensive procedure, and there were a significant number of courts in the country which did not use it. Of course this would be the reverse situation: the sheriff has the right to act on his own initiative without either of the parties moving. What I am suggesting is that it should be left with the parties and if neither of them wishes the matter to be treated as one of great complexity then it should rest as a small claim. I beg to move.

6.15 p.m.

Lord Kirkhill

I merely want to ask rhetorically if we can be totally happy about such ultimate "sherival" wisdom?

Lord Cameron of Lochbroom

I shall just say to the noble Lord that I have listened to what he has said, and I shall be very happy to consider this matter further. But I should put on record that the Government took this step advisedly; and perhaps I can briefly explain why. The typical small claim will involve men and women who wish to deal with the case themselves, without having representation by lawyers. There may be lay representation, as I think the Committee is well aware, and the procedure to be adopted is likely to be relatively uncomplicated; indeed, the Bill expressly provides that the ordinary legal rules about the admissibility or corroboration of evidence are not to apply.

It would certainly be my earnest hope that the sheriff would do all that he could to ensure that the proceedings were informal and so far as practicable avoid legal technicalities. The difficulty is that the parties to the case may well believe that the issues which their case raises are simple and that the sheriff will have no difficulty in deciding in their favour. On the other hand there will be cases, which one can imagine very easily—perhaps contract of sale cases—in which a very difficult question of law may be involved of which the parties are totally unaware.

I am in no doubt that in considering the question of a remit the sheriff would indeed consider the parties' views; but one has to take the view that they will be lay persons and it may be that even at the end of the day they will not fully understand the point that is being made. It was in those circumstances that it was considered appropriate that the sheriff should still be left with discretion of his own accord to remit in an appropriate case. However, I have listened to what the noble Lord has said and I shall go away and ponder the matter further; but I should like to make it clear that this is the reasoning which has led us to put this particular provision in the Act, bearing in mind what the small claims procedure is intended to bring about.

Lord Wilson of Langside

I am most grateful to the Lord Advocate. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Cameron of Lochbroom moved Amendments Nos. 28 to 35:

[Printed earlier: col. 195.]

On Question, amendments agreed to.

Following is the text of the amendments (Nos. 28 to 35):

Page 17, line 16, leave out ("proceedings") and insert ("small claim").

Page 17, line 18, leave out ("proceedings") and insert ("small claim").

Page 17, line 19, leave out ("proceedings") and insert ("small claim").

Page 17, line 20, leave out ("small claims proceedings") and insert ("a small claim").

Page 17, line 21, leave out ("proceedings") and insert ("small claim").

Page 17, line 23, leave out ("small claims proceedings") and insert ("a small claim").

Page 17, line 25, leave out ("small claims proceedings") and insert ("a small claim").

Page 17, line 27, leave out ("small claims proceedings") and insert ("a small claim").

Lord Wilson of Langside: moved Amendment No. 36: Page 17, line 29, after ("cause") insert ("and may, if in all the circumstances he deems it appropriate, on the motion of one of the said parties").

The noble Lord said: The object of this amendment is to extend the power—in this case the power of the sheriff—to direct that the cause shall be treated as a small claim proceedings by empowering him to so direct on the motion of one of the parties, in addition to the present clause requiring him on a joint motion to direct that the cause shall be treated as a small claim.

It is a variation on the same theme as my other amendments and is put down simply in order that the Government may consider whether this may not be a desirable provision to make. It will empower the sheriff, if he feels that in all the circumstances of the case it would be appropriate, to resort to the simplified procedure of the small claim if one party moves him so to do. I beg to move.

Lord Cameron of Lochbroom

I fear that in this case I cannot commend the amendment to the Committee. The special features of the small claims procedure which I outlined are a certain degree of informality, and it is expected to be an exceptional case in which parties whose claim is over the financial limit at which the small claims procedure will apply will concur in wanting their claim to be dealt with as a small claim. However, it seems right to provide that if the parties concur, the sheriff should be under a duty to order a remit. Then the procedure for doing so will be simple and not need the parties to attend before the sheriff to argue the grounds in which he should order a remit.

Equally the provision for such a remit into small claims procedure is reciprocal to that in subsection (2)(b) which allows parties to agree that their case should be remitted out of the small claims procedure. However, it is a very different matter to allow a single party whose claim is over the financial limit to move the sheriff that the case should be remitted to be treated as a small claim. That might, for example, encourage defenders as a standard practice to seek such remits, and I think that that would be undesirable. That being so, I do not feel that I can commend this amendment to the Committee.

Lord Wilson of Langside

I fully appreciate the force of what the Lord Advocate says. The sort of case that I have in mind is one where the claim was perhaps marginally over the limit. But there it is. These marginal cases are always difficult to deal with. I appreciate the consideration which he has given to the matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Cameron of Lochbroom moved Amendments Nos. 37, 38 and 39:

[Printed earlier: col. 195.]

On Question, amendments agreed to.

Following is the text of the amendments (Nos. 37, 38 and 39):

Page 17, line 30, leave out ("small claims proceedings") and insert ("a small claim").

line 32, leave out ("small claims proceedings") and insert ("a small claim").

line 44, leave out ("small claims proceedings") and insert ("a small claim").

On Question, Whether Clause 18, as amended, shall stand part of the Bill?

Lord Kirkhill

I think that this is an appropriate moment to ask the Lord Advocate whether he is now in a position to give the Government's response to the point which the noble and learned Lord, Lord McCluskey, made at Second Reading, half way down col. 1031, about a case that starts life as a small claim and is converted into a summary cause so that, as a consequence, corroboration is suddenly required.

Lord Cameron of Lochbroom

I think the only response that I can give is that in those circumstances the parties will not be able to avail themselves of the relaxation on the rules of evidence that would have been available when it was treated as a small claim, but they would have of course the opportunity to consider their position as to whether they wished to proceed as a summary cause. I do not think I can do better than simply say that there will then be an opportunity to consider whether they wish to proceed as a summary cause when they elect originally to go as a small claim.

Clause 18, as amended, agreed to.

Clause 19 agreed to.

Clause 20 [Removal of prohibition of sheriffs' principal and sheriffs ' accepting appointment to certain offices]:

On Question, Whether Clause 20 shall stand part of the Bill?

Lord Wilson of Langside

The point that I wish to raise is very short and I can be brief. I mentioned it during the course of the Second Reading debate, I do not feel very strongly about it. I got the impression that the Lord Advocate misunderstood what I was concerned about in the removal of the provisions of Section 6(1)(b) of the 1971 Act. I am simply concerned that he should explain why he thinks that it is necessary to repeal that provision. It was inserted because a sheriff is a local judge. Particularly in rural areas he tends to be a well-known figure. As I recall, the provision in the 1971 Act was a repeat of the provision in the 1907 Act, saying that the sheriff should not accept appointment to any office other than that which he was statutorily required to undertake. That was to protect his judicial independence being put in doubt, especially again in country districts.

Sheriffs frequently in the past sought permission of Lords Advocate, officials of the Scottish courts' administration or the sheriff principal to accept the social appointments which they are sometimes asked to accept. That caused no difficulty. I wonder whether the Government have looked at the background and why a protection which was seen as necessary for the sheriffs' position in 1907 and 1971 is no longer necessary.

I do not want to labour the point. I shall readily accept the Lord Advocate's assurances about this. I just want to be satisfied that he is perfectly happy and that the Government have considered the reasons for a provision regarding the office of the sheriff in an Act as recent as 1971 being excluded.

Lord Cameron of Lochbroom

I am grateful to the noble and learned Lord. I accept that the 1971 provision had a long history going back to the days when the office of sheriff substitute, as it was then, was in the gift of the sheriff principal. I can only say that this clause has been put in the Bill because in recent years difficulties have been brought to the Government's attention about the scope of the restriction in the 1971 Act.

If I may give an example or two, it has been suggested that the appointment of a sheriff as deputy lieutenant or as a trustee of a public body such as the National Gallery of Scotland could be a breach of the provision. Representations have been made both by the sheriffs' association and the sheriffs principal which support the relaxation intended by this clause. I hope that that will explain its purpose to the noble and learned Lord.

Clause 20 agreed to.

Clause 21 agreed to.

Clause 22 [Re-employment of retired judges].

Lord Morton of Shuna moved Amendment No. 40:

Page 19, line 11, at end insert ("or

(c) has been for at least 10 years eligible for appointment as a Judge for the Court of Session,").

The noble Lord said: It might be convenient to take with this Amendments Nos. 41 and 42 which are linked.

Amendment No. 41: Page 19, line 12, leave out ("either") and insert ("any").

Amendment No. 42: Page 19, line 17, at end insert ("and a person qualified only under paragraph (c) of this subsection shall not be appointed to act for a period or periods totalling more than six weeks in any calendar year.").

Clause 22 of the Bill provides for the possibility of using a retired judge who is under 75. There is at the moment only one so qualified retired judge. The amendments that I have suggested are to enable, in an emergency, a senior counsel of considerable seniority to sit as a deputy judge, so to speak, for a period of not more than six weeks in any calendar year.

6.30 p.m.

The position at the moment—in sharp contrast, I understand, to the position of the English Bar—is that in Scotland there is no system for giving senior counsel who are being considered, who are qualified or who are about to be appointed to the Court of Session bench, any judicial experience or training whatever. In England, I understand, one would not be considered for any judicial appointment until one had had some form of part-time experience. There used to be in Scotland part-time sheriff principals who were senior counsel, and who could be tried out or who could try themselves out, to see whether this was the type of work that they wished to do.

It is to meet both the form of training and experience and also the difficulties that are likely to arise in a court where 23 judges, if my memory is correct, are able to be appointed but where, if one or two happen to be ill or if a case in which they are engaged extends over an extra few days, it means that other cases have to be put off at the last minute. This can cause severe difficulties to litigants.

I am fully aware that last week, or the week before last, the noble and learned Lord, Lord Rawlinson, was very critical of the use of counsel as part-time judges. I am suggesting nothing like the over-full use that appears to be his view of the position in England—I do not wish to make any comment on the English position, because I do not know about it—but only to meet an extreme situation and for very short periods. I beg to move.

Lord Cameron of Lochbroom

In framing this clause the Government gave careful consideration to how best temporary assistance could be provided to the Court of Session and to the High Court. They concluded that neither the employment of practising senior counsel nor indeed of sheriffs principal would be a satisfactory alternative to the recall of retired judges. I wish to emphasise that the Government, in reaching this decision, have taken the views of the Lord President of the Court of Session. It is on his shoulders that the responsibility—a very heavy one—of administering the business of these courts falls.

I would also say that in Scotland, as the noble Lord knows well, we really only have a very small senior Bar. The leaders of the Bar are already heavily committed. Leaving aside the administrative nightmare that would be created by trying to combine a commitment to the bench with a busy practice, I suggest that the delicate balance between bench and the senior Bar might well be adversely affected. I appreciate the point that the noble Lord makes about judicial experience. Can I remind him, however, that there are other areas in which experience of a quasi-judicial kind can be found. I can think of various boards and tribunals where assessment of witnesses, judicial determination and all the essentials of judicial experience are to be found. And, of course, even earlier in their career, they are able to seek appointment as temporary sheriffs.

Obviously, I am not unsympathetic to the motives that underlie the amendment. I would however say, as I said on a previous occasion, that the purpose that the Lord President would have in mind would be to use such temporary assistance in appellate cases. I believe that such cases would undoubtedly not be suitable for the employment of others than retired judges. Accordingly, I cannot commend these amendments to your Lordships.

Lord Morton of Shuna

I am grateful to the noble and learned Lord the Lord Advocate, who is being as reluctant to accept any amendment as usual. It is interesting to see that the Government are passing the buck, so to speak, to the Lord President. If cases are postponed because there are insufficient judges, it is not the Lord President or even the Government who bear the cost, usually: it is the litigant. That is unfortunate. I think that the best course would be to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 41 and 42 not moved.]

Clause 22 agreed to.

Clauses 23 and 24 agreed to.

Clause 25 [Amendment of provisions about detention of children]:

Lord Cameron of Lochbroom moved Amendment No. 43:

Page 21, line 2, leave out from beginning to first ("for") in line 4.

The noble and learned Lord said: This is a drafting amendment. I beg to move.

On Question, amendment agreed to.

Clause 25, as amended, agreed to.

Clause 26 [Amendment of power to detain children in secure accommodation.]:

Lord Cameron of Lochbroom moved Amendment No. 44:

Page 22, line 9, leave out ("paragraph (b) above") and insert ("this subsection").

The noble and learned Lord said: Again, this is a purely drafting amendment. I beg to move.

On Question, amendment agreed to.

Clause 26, as amended, agreed to.

Clauses 27 to 31 agreed to.

Clause 32 [Rules as to valuation of sheep stocks.]:

Lord Cameron of Lochbroom moved Amendment No. 45: Page 24, line 10, leave out ("valuation") and insert ("variation").

The noble and learned Lord said: This amendment is necessary to correct an error in the wording to ensure that once the formula for valuing sheep stocks at the end of a tenancy has been updated it is that formula that can be used for new leases. In these circumstances, it is necessary to give effect to this by the amendment proposed. I beg to move.

On Question, amendment agreed to.

Clause 32, as amended, agreed to.

Clauses 33 and 34 agreed to.

Clause 35 [Provisions as to persons arrested in respect of terrorism]:

Lord Wilson of Langside moved Amendment No. 46:

Page 25, leave out lines 27 to 32.

The noble and learned Lord said: I can be brief, and it might be for the convenience of the Committee if I deal also with Amendments Nos. 47 and 48.

Amendment No. 47: Page 25, line 42, leave out from beginning to end of line 3 on page 26.

Amendment No. 48: Page 26, leave out lines 37 to 40.

I should perhaps be almost apologetic for putting down these amendments. They are essentially probing amendments, and derive from the circumstance about which I complained earlier—the difficulty of giving full and proper scrutiny to a Bill that within its four corners encompasses such an enormous range of different aspects. I was simply unable, with the resources at my disposal, to find out how it became necessary to effect the substantial amendments to the law in Clause 35, all relating to matters connected with terrorism. If the Lord Advocate can perhaps give a short explanation of how the need for these amendments arose in this context, I imagine that the Committee would appreciate it. If the Committee does not, I certainly would. I beg to move.

Lord Cameron of Lochbroom

I hope that I can be reasonably brief in reply. The clause is intended to implement recommendations made by the noble Earl, Lord Jellicoe, in his review of the operation of the Prevention of Terrorism (Temporary Provisions) Act 1976. Noble Lords may remember that a provision along exactly the same lines was provided for in England and Wales in the Police and Criminal Evidence Act 1984. It is for that reason that this clause finds its way into the present Bill. It is to take cognisance of those recommendations and to apply them within the Scottish context. Unless the noble and learned Lord wishes any further explanation, which I shall certainly be happy to give him in writing if he would like to write to me about it, I hope that he will withdraw the amendment.

Lord Wilson of Langside

Perhaps I should simply have asked the noble and learned Lord the Lord Advocate for that information, which would have saved the time of your Lordships' Committee. However, I did not have the opportunity to do so. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments No. 47 and 48 not moved.]

Clause 35 agreed to.

[Amendments No. 49, 50, 51 and 52 not moved.]

Clause 36 agreed to.

Clauses 37 and 38 agreed to.

Clause 39 [Fines in respect of drug offences]:

Lord Morton of Shuna moved Amendment No. 53:

Page 32, line 24, after ("made") insert ("by that accused").

The noble Lord said: This amendment is to clarify what would be the result of subsection (2) of Clause 39, which reads:

"In determining the amount of a fine imposed pursuant to subsection (1), the Court shall have regard to any profits likely to have been made from the crime in respect of which the accused has been convicted."

This relates to dealing in drugs, and the crime is not defined. The crime of which the accused has been convicted may be the crime of bringing heroin or some other drug into this country and moving it about the country, whereas the accused may only have moved one small part of the herion from one place to another. I suggest that in order to make it clear the subsection should read:

"any profits likely to have been made by that accused from the crime in respect of which the accused has been convicted".

I beg to move.

Lord Cameron of Lochbroom

I am very grateful to the noble Lord for having put down this amendment. I accept that there is perhaps a matter which ought to be made clear. I am not certain that the terms of the amendment itself achieve that in perhaps the best way, and I should like to take this matter away and think about it. In that way I also hope to satisfy the hellfire and brimstone sermon which I received slightly earlier from the noble Lord, Lord Kirkhill.

Lord Kirkhill

I hope that the noble and learned Lord the Lord Advocate noticed that there was much waving of Marshalled Lists.

Lord Morton of Shuna

In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.45 p.m.

Lord Morton of Shuna moved Amendment No. 54:

Page 32, line 29, after ("Class A") insert ("or Class B").

The noble Lord said: Perhaps it would also be convenient to deal with Amendment No. 55, because it follows on from Amendment No. 54.

Amendment No. 55: Page 32, line 30, leave out ("Part I") and insert ("Parts I and II").

The clause as drafted deals with Class A drugs and is no doubt intended to aim principally at heroin and cocaine. There seems no real reason why Class B drugs, which include cannabis, LSD and amphetamines, should not also be subject to whatever additional penalty this clause may give power to the court to impose. Your Lordships will be well aware that some years ago the "Operation Julie" case in Wales started the whole review of the question of confiscation and penalties to be imposed on people who deal in drugs. That was a case dealing with LSD.

Recently in Scotland there have been two instances where people have tried to make amphetamines, and if they had succeeded, they would have made a very large profit indeed. There was one case very recently and a case some years ago in which very large quantities of cannabis were landed in Scotland, and, again, if the people had not been caught they would have made very large profits. It seems unusual and unnecessary that these people should not be penalised by the penalty that is intended by this Bill. I beg to move.

Lord Gray

I hope that my noble and learned friend will look favourably upon the amendment. Whatever comes about, it is important that this should at least be within the armoury of the Bill.

Lord Cameron of Lochbroom

I fully take the point that both noble Lords have made in speaking to this amendment. Obviously, I should like to ponder over what has been said in both cases, but it is only right that I should explain why Class A drugs are the only ones covered by the clause at present. Noble Lords will be aware that in the Controlled Drugs (Penalties) Act, which has passed through Parliament this year, the maximum penalty for trafficking in Class A drugs was increased to life imprisonment, although the penalty for trafficking in other controlled drugs remains at the previous maximum of 14 years.

It was with that in mind that the Government thought it right that this measure should apply in relation to Class A drug cases alone. I think that it has been generally recognised that trafficking in heroin and cocaine in particular is regarded by the public as a most noxious trade and one which should be the subject of heavy penalties. Of course, I accept that profits can be made from other illegal drug dealings. Indeed, the noble Lord, Lord Morton, has made that point very forcefully.

I would only say that the court still has the discretion to impose a fine in addition to imprisonment in such cases, just as in any other case of dealing with Class A or Class B controlled drugs. However, although I cannot accept the amendment at this stage, I should like to consider the matter further and perhaps it might be looked at again at Report.

Lord Morton of Shuna

As that seems to be the limit of the noble and learned Lord the Lord Advocate's July humour, to take the amendment away and think about it, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 55 not moved.]

Clause 39 agreed to.

Clauses 40 to 44 agreed to.

Clause 45 [Supervision of children released after detention]:

Lord Morton of Shuna moved Amendment No. 56: Page 36, line 23, at end insert— ("(9) The Secretary of State shall inform a person required to be under supervision under subsection (1) above of the reasons for the requirement and of the reasons for such conditions as may be specified in the notice of requirement so that the person may make representation in writing with respect to the supervision requirement or the conditions or both to the court which imposed the sentence of detention referred to in subsection (1) and that court may on receipt of such representation require the Secretary of State to cancel the supervision requirement or to cancel or vary any or all of the conditions thereunder. (10) The Secretary of State shall inform a person recalled under subsection (5) above of the reasons for his recall so that the person may make representations in writing with respect to his recall to the court which imposed the sentence of detention referred to in subsection (1) and the court may on receipt of such representations require the Secretary of State to release him forthwith." ").

The noble Lord said: This is an amendment which I hope the noble and learned Lord will at least be willing to take away and think about. To summarise, the new Section 206A which Clause 45 inserts—and if I have not understood it aright, I shall be corrected—gives the Secretary of State power to impose supervision on a child who is released after detention having served the whole sentence which the court imposed on him, and thereafter, when on supervision, if, in the Secretary of State's view, he fails the Secretary of State is empowered to impose a period of detention not exceeding three months on that child, or person as he may then be. So far as I can see, there is no right of appeal, challenge, or anything whatever in the provision.

This is contrary to everything that is normal in the question of imposing penalties. Penalties are imposed by the courts, not by the executive. It is contrary to everything in the Criminal Procedure (Scotland) Act. Section 206 deals with a person who is released on licence, and the Secretary of State has power to recall him. But subsection (6) requires that the Secretary of State shall inform a person recalled of the reasons for his recall so that the person may make representations in writing with respect to his recall to the board—in that case it is the parole board—and the board may, on receipt of such representations, require the Secretary of State to release him on licence forthwith. Therefore, there is a right of appeal.

Section 214 deals with breach of supervision. In any other case if somebody is under a supervision order the social worker—or the Secretary of State as being responsible for the social worker—has to lay information before a sheriff on sworn information by the Secretary of State. Section 214(2) states: If it is proved to the satisfaction of the sheriff. ".

The same provision in relation to probation can be found in Section 387, and the same provision about return to prison in Section 423. All these are instances—and so far as I can check they are, with one exception, the only instances—where a court or parole board can intervene to prevent the Secretary of State from imposing a further penalty. The only exception appears to be under Section 12 of the Criminal Justice (Scotland) Act 1963, which applies only to a person detained in a young offenders' institution for a sentence of over six months but less than 18 months.

The Act provides that it shall be written into that sentence that he shall do a year's supervision thereafter.

In my submission, it is against the whole principle of criminal procedure that a member of the executive—which is what the Secretary of State is—should have the power to impose a penalty, which is what supervision is, or detention, which even more clearly is a penalty, with no right of appeal and giving no reasons for this whatever. It is with the intention of trying to raise this matter that these amendments adding additional subsections to the clause are made. This matter was raised by the Faculty of Advocates—as no doubt the noble and learned Lord the Lord Advocate is well aware—who are considerably concerned at what they regard as a constitutional impropriety. I beg to move.

Lord Cameron of Lochbroom

The objective of the present Section 206 of the Criminal Procedure (Scotland) Act 1975, to which this clause is an amendment, was to ensure that all children under 16 convicted on indictment should be subject to a period of supervision after their release, regardless of whether their release date fell within the sentence or at the end of it. I think at Second Reading I explained that even if released one day before the end of the sentence the provisions there standing could take effect. In fact, the original provision did not achieve that intended effect in respect of those few children who were held until the end of their sentence and were not released on licence. This clause simply seeks to remove that lacuna.

The new provision thus puts children who are detained until the end of their sentence in the same position as those who are released on licence, and who are already subject to a supervision requirement which can extend beyond the period of their original sentence. It also puts them in the same position as young offenders who, at least since 1963, have been subject on release to such supervision orders which again can extend beyond the end of their sentence. This is not, therefore, either a new or an innovatory proposal.

As to the particular proposal in Clause 45, children who cannot be released on licence before the end of their sentences are precisely those who are most likely to need regular contact with, and guidance from, a social worker, and who are least likely to respond voluntarily to social work supervision. Making supervision mandatory reinforces the existing commitment of social work departments, who already supervise these cases on a voluntray basis; and with the recall provisions provide a sanction where the supervision conditions are not complied with. However, I must stress that the purpose of the supervision is not punitive, but to ensure as far as possible that the person concerned receives and makes use of support and guidance in settling back into the community.

It seems to me inappropiate to involve the courts in a flexible post-release supervision of this type; though I should add that in the unlikely case of the Secretary of State acting totally improperly or unreasonably an application for judicial review of the decision could no doubt be made to the court. New procedures have recently been introduced in the Court of Session following the Dunpark Report to facilitate hearing such reviews. However, the existing system already provides the type of review sought by the amendment, but more quickly and flexibly than would be possible for the courts. Both the supervising officer and the child are already at liberty to approach the Secretary of State at any time through his officials and to have the terms of a supervision requirement varied. Nor are these requirements very onerous. The standard set of conditions simply require the child to place himself under the supervision of the supervising officer, to keep in touch as required, and to notify changes of address and so on, and to be of good behaviour and keep the peace.

In the case of recalls the procedure is that the supervising officer first writes to the department and says he thinks that the child should be recalled. The department then informs the child in writing that a recall has been recommended, and that if he does not conform the Secretary of State will have to issue an instruction for a recall. The child can then reply, suggesting, for instance, that the social worker supervising him is over-reacting, and the department would consider the reply before taking any action. The person supervised is therefore informed of an impending recall and can made representations before the recall occurs—not after the event, as is provided for in the amendment. I hasten to add, as I have already said, that it is the supervising officer who, as it were, commences the process.

I should add that such recalls are in any case rare. The information I have is that under the existing system there were only three in the period 1980 to 1984. There is a strict time limit of three months in subsection (7) which is already placed on the total period which can be spent in detention on recall, but this limit is unlikely to be reached in practice.

Finally, the amendments refer the case back to the court imposing the original sentence. This could be months or possibly years before, and it is not clear, to say the least, that the court would have any current knowledge of the case. The supervising social worker who is involved in the present procedure would have this knowledge. I also note that, while the child can make representations to court, the Secretary of State has no formal right to do so. This again might seem to offend against a principle of natural justice if an appeal procedure were to be provided.

I would suggest that we ought to be guided by experience here. There is, and has been, no provision for the involvement of the courts in the supervision of cases involving children released on licence under the present system before the end of their sentence. The system as it stands has proved to be adaptable and flexible and should, I suggest, be applied to those few cases of children detained for the full term of their sentences. With that explanation, perhaps I might persuade the noble Lord not to proceed further with this amendment and the consequences which it appears to involve.

7 p.m.

Lord Morton of Shuna

I am very much obliged to the noble and learned Lord the Lord Advocate for his explanation which is very largely the same explanation as he read out at Second Reading. But in Section 206 which is the previous section, the section from which this is supposed to have been left out by mistake, the child—and it is a child that one is dealing with there—who has been released on licence and who the Secretary of State wishes to be recalled to detention, can go to the parole board. He has somebody else to go to.

Under the new section which the Bill suggests, the Secretary of State can recall a child to detention with, no right of appeal to anybody whatsoever. If the noble and learned Lord the Lord Advocate can think of somebody better than a court to work out whether the child should or should not be detained as the Secretary of State wants him to be detained, well and good! But surely a child who has served a complete sentence should have a right of appeal to somebody.

In the case of every other person who is to be returned in case of a breach of supervision, the Secretary of State has to lay sworn information before a sheriff and prove it. The noble and learned Lord the Lord Advocate shakes his head. If he looks at Section 214 of the Criminal Procedure (Scotland) Act 1975 he will find that in subsection (2). That is the thinking behind the whole of the 1975 Act. I would most firmly ask the noble and learned Lord whether he should not take this away and think about it again and, however few there may be, give these children a right to appeal somewhere. There is no objection to the main purpose of the section. It is only that the child should, if something goes wrong, have a right to appeal.

Lord Cameron of Lochbroom

Obviously, I shall read what the noble Lord has said. I would simply say that I have had regard to what is said in Section 206 in the reply which I made—which, I will hasten to add, I think was not in the same words but was substantially different and longer than my reply at Second Reading.

Lord Morton of Shuna

In the hope that perhaps something better will turn up in October, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 45 agreed to.

Clause 46 agreed to.

Clause 47 [Transfer of sheriff clerks and procurators fiscal]:

Lord Morton of Shuna moved Amendment No. 57: Page 37, leave out lines 17 to 22.

The noble Lord said: Perhaps it would be convenient to take also Amendment No. 58 with this amendment.

Amendment No. 58: Page 37, line 23, leave out ("or as the case may be of the Lord Advocate").

This amendment is to omit the power that is given to various officers to transfer people from one place to another and to remove the power of the Lord Advocate to transfer procurators fiscal and leave the Secretary of State with power to move sheriff clerks. The existing rights in the fiscal service may be applied by the 1927 Act to very senior persons in the fiscal service. Others are able to be moved at the Lord Advocate's whim. It is difficult to understand why a senior person who has reached the limit of his ambition and a post in, say, Ayr or Banff or somewhere else should suddenly be told that he must move against his will to, say, Glasgow or Lerwick or somewhere else.

The main purpose in raising this is to see what the purpose of it is. I am totally unaware that there has been any procurator fiscal to whom the 1927 Act applies who has really caused any problem to any Lord Advocate. The Procurator Fiscal Society is firmly against the measure.

Lord Wilson of Langside

It may be convenient that the following amendment in my name arising out of the same situation, be considered as a different solution to the problem. The question that the noble Lord, Lord Morton, asked is one that must be answered because it is very difficult to understand why, after these 80 years or so, it suddenly becomes necessary to take this power. The reaction of the procurators fiscal one might almost describe as being a violent one. They are certainly acutely concerned at what they see as a threat to what has been, in some respects, their independence.

I have seen a lot of correspondence from them. I do not agree with all of their point of view at all but I think their reactions are strong and they are certainly entitled to a very convincing answer from the noble and learned Lord the Lord Advocate as to why these powers should be sought. It might be for the convenience of the Committee and save time if I pointed out that in my amendment, Amendment No. 59, what I suggest might be done is to provide that the power to transfer procurator fiscals shall not apply in the case of those who have been in the service prior to the passing of the Act.

Amendment No. 59: Page 37, line 26, at end insert—

("Provided that the said right vested in the Lord Advocate shall not be exercisable against the wishes of any procurator fiscal who joined the procurator fiscal service prior to the passing of the Act.").

They feel that they have been dealt with retrospectively, having entered the service where they had this independence, and so on. They are concerned that there should be this sudden change. Perhaps the Lord Advocate, as well as replying to the noble Lord, Lord Morton, can deal with the other suggestion, the suggestion that fiscals who have been appointed prior to the taking of this power should be exempt from its operation. I think this would be a very sensible solution to the problem because obviously it is related to the morale of the procurator fiscal service. I am sure that the Lord Advocate is as jealous as all of us in the law about the procurator fiscal service and the importance of high morale in that service to the whole administration of criminal justice.

Lord Cameron of Lochbroom

The purpose of this clause is to remove any doubts about what was intended by Parliament when the 1927 Act was passed and also to make it clear that the terms and conditions of service of procurators fiscal—namely, those which apply to any other civil servant—apply in exactly the same way to them.

May I say at the very outset that I recognise that some concern has been expressed by the Procurator Fiscal Society and by individual procurators fiscal. I believe reference has been made to the independence of the prosecutors and to the fear of some political interference in the exercise of their discretion. I want to make it quite clear that that is not the purpose of this provision. I would also make it quite clear, as my honourable friend the Solicitor-General made it clear in another place, that procurators fiscal are by the law of Scotland and by proper usage subject to directions which the Lord Advocate of the day may give to them; and, of course, the Lord Advocate and the Solicitor-General are responsible in Parliament for the activities of the procurators fiscal. I wish to make that abundantly plain at the outset.

The clear intention of the 1927 Act was that the procurator fiscal would be protected against arbitrary dismissal; that is to say, dismissal from the service generally. That will remain, and it will remain with the provision that any dismissal from office, in the sense that I have already indicated, will still require a report under Section 1 (3). But there are circumstances where, within his terms and conditions of employment, it may be for the more efficient organisation and administration of the service that a person who is serving as a procurator fiscal in one place would be better employed in another post. One can instance all kinds of situations, but I should like to take one of them. Let us say that an office has a greatly increased workload, that the post of procurator fiscal has had to be upgraded and that the person who is presently in post is not of the appropriate grade to become the automatic holder of that post. Is it right that that post should not be available to others who are in the appropriate grade to be placed there as procurator fiscal?

There may also be instances where some inefficiencies do not call for dismissal but where it may be necessary for that individual who is a procurator fiscal to be moved to another post; or it may be that an individual who is a procurator fiscal is in possession of particular abilities and skills and there is a post in a much larger office, though not necessarily that of a procurator fiscal, where his particular abilities and skills could be used to better advantage. The noble Lord may think, for instance, of his experience in the Glasgow Sheriff Court—a large fiscal's office, where the assistants probably do work which is certainly the equivalent of and sometimes even more onerous than certain fiscal offices elsewhere in the country.

It is to secure that kind of proper and efficient organisation and administration that it is sought to make clear beyond peradventure that the purpose of the 1927 Act was to deal with arbitrary dismissal from office and from the service, and not, as has sometimes been thought, to deal with the position where an individual at a particular grade can be moved as the organisation of the service may require.

7.15 p.m.

A fear has been expressed in certain quarters that the change proposed will mean that there is a potential for political pressure to be put on procurators fiscal by the Lord Advocate. I hope I have made it abundantly plain that such a fear is wholly without foundation. Certainly I can assure your Lordships that that is not the intention of this holder of the office in putting forward this proposal. I am confident that none of my predecessors would ever have had that in mind, and, while one can only look forward into a glass darkly, I cannot imagine that any of my successors would ever be so motivated. As I have said, at the end of the day the Law Officers are accountable to Parliament, and, of course, it is open to anyone who seeks to check an abuse to have the matter raised in either House of Parliament.

There was an anxious and far-reaching debate in the other place. I do not wish to take up all the points that were raised at that time, or indeed to rehearse all the matters that were stated at that time, but I do make it clear that this is a perfectly genuine attempt to stress that in organising a prosecution service today it is necessary to have available and to make quite clear the power which lies within the general terms and conditions of each member of the fiscal service, as a civil servant, that they may reasonably be moved one post to another. Of course, as your Lordships are well aware, there are procedures within the Civil Service which provide for appeals in various forms as to a posting. Certainly no Lord Advocate having any responsibility for his office would ever seek to make a move unless it was in the best interests of the service and of the organisation of the prosecution system.

I have dealt generally with the matter, and I hope I have persuaded your Lordships quite clearly that there is no malign motive in seeking to make this matter clear. I do so because there has been a misapprehension in the past as to the intention of the 1927 Act. I have looked at the debates which took place at that time and I am quite clear that Parliament intended that it was dismissal from the service generally that was in mind in the use of the word "remove". There has grown up a feeling that "remove" simply means a move within the service. That was not the intention of the original Act; nor would it be in accordance with the general terms and conditions of service. I certainly accept the point made by the noble Lord opposite about the important status of the procurator fiscal, and nothing that I seek to do or would ever do, I hope, will derogate from that status.

One other point I should like to make concerns the amendment which is in the name of the noble and learned Lord, Lord Wilson. So far as that is concerned, I would simply say that before anybody becomes a procurator fiscal he becomes a civil servant, and the terms and conditions of his appointment as a civil servant provide that he shall be able to be moved within the context of his appointment as a civil servant.

We are dealing here simply with those 48 who at a particular stage in their service have achieved the post of procurator fiscal. I do not think it can reasonably be said that at the time they joined the fiscal service there was implicit in their contract of service the fact that they would have any right vested in them against removal, other than that which is properly stated by the 1927 Act.

I have taken some time, and I apologise for it, in explaining the purpose of this clause. But I hope that I shall have satisfied your Lordships again that it is put here for a very good reason. It is not intended to derogate from the status of procurators fiscal and they have nothing to fear from the terms of the clause.

Lord Morton of Shuna

I am sure that the procurator fiscals' service will be very obliged, as I am, for the terms of the reply by the noble and learned Lord the Lord Advocate. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 58 not moved.]

Lord Wilson of Langside had given notice of his intention to move Amendment No. 59:

[Printed earlier: col. 216.]

The noble and learned Lord said: The noble and learned Lord the Lord Advocate referred to this amendment in his previous reply. Therefore, I shall not move it.

[Amendment No. 59 not moved.]

Clause 47 agreed to.

Clauses 48 to 54 agreed to.

Lord Cameron of Lochbroom moved Amendment No. 60:

After Clause 54, insert the following new clause:

("Amendments of certain controls in relation to the provision of pharmaceutical services.

. In the National Health Service (Scotland) Act 1978—

1. (a) in section 27(2)(b) (which provides for the conferring upon certain persons of a right to be included in the list of persons who undertake pharmaceutical services) after the words "subject to" there shall be inserted the words "any provision made by or under the regulations and to";
2. (b) in section 28 (persons authorised to provide pharmaceutical services) in each of subsections (1) and (2) after the words "provided by" there shall be inserted the words "or under".").

The noble and learned Lord said: I beg to move this amendment which gives the Secretary of State for Scotland power to make regulations modifying health boards' obligation to admit to their pharmaceutical list every qualified person who asks for admission. Similar powers were introduced for England and Wales in 1980. The amendment to Section 27 does not of itself alter the right of a qualified pharmacist to be admitted on application to a health board pharmaceutical list and thereby to enter into a contract with the National Health Service. The amendment gives the Secretary of State for Scotland the same powers as his English counterpart to make regulations which are intended to regulate entry to a pharmaceutical list.

The main purpose of bringing in this amendment at this time is that the Government have reached agreement with the pharmaceutical profession in Scotland as well as in England and Wales on a new contract for retail chemists who dispense National Health Service prescriptions. The new contract cannot be implemented without regulations which will make provision for governing entry to National Health Service pharmaceutical lists. Thus failure to make the required amendments to the Scottish Act at this time would create serious disadvantages for Scottish pharmacists. I would add that the amendment has the full agreement of the pharmaceutical profession in Scotland.

The amendments to Section 28 are necessary consequentials, while Amendment No. 62 to Clause 59 provides a required regulation-making power on the date of the Royal Assent.

Amendment No. 62: Page 41, line 9, after ("54") insert and ("(Amendments of certain controls in relation to the provision of pharmaceutical services)").

As this is a new subject an amendment has, therefore, been tabled to the Long Title to cover it. I beg to move.

On Question, amendment agreed to.

Lord Morton of Shuna moved Amendment No. 61:

After Clause 54, insert the following new clause:

("Scottish Special Housing Association and New Town Development Corporation.

.—(1) The Local Government (Scotland) Act 1975 shall be amended in accordance with the following provisions of this section.

(2) In section 23(1) of that Act (authorities subject to investigation) there shall be added the words— (g) the Scottish Special Housing Association; (h) any New Town Development Corporation;".

(3) In section 24 of that Act (matters subject to investigation)—

(a) at the end of subsection (1) there shall be added— Provided that in respect of the Scottish Special Housing Association or a New Town Development Corporation the Commissioner may not investigate any complaint which does not relate to housing.";

(b) at the end of subsection (2) there shall be added— (c) Notwithstanding the terms of paragraphs (a) and (b) above in the case of the Scottish Special Housing Association or a New Town Development Corporation it is made in writing to the Scottish Special Housing Association or the New Town Development Corporation concerned and is referred by that body to the Commissioner with a request to investigate the complaint."; and

(c) in subsection (4) after the word "concerned" there shall be inserted the words "or in the case of the Scottish Special Housing Association or a New Town Development Corporation to that body".").

The noble Lord said: This amendment is to add a new clause. Basically it is to add to the local government ombudsman's powers the power of looking into housing functions of the Scottish Special Housing Association and any New Town Development Corporation. This is more or less helping the Government, I should have thought, because in July 1983 the Secretary of State for Scotland announced that he had decided to do exactly this. It is also a measure which the local government ombudsman has sought. He has received complaints which he is unable to investigate into maladministration relating to housing from the new town development corporations and the Scottish Special Housing Association. Knowing that we do not have a great deal of time I would, with that explanation, move the amendment. I beg to move.

Lord Kirkhill

Briefly, may I congratulate the noble and learned Lord the Lord Advocate for vastly improving in the second half of the Committee stage. We on this side of the Committee are rather better pleased with him than perhaps we were earlier in the afternoon. Having said that, may I say that I commend the amendment of my noble friend Lord Morton of Shuna to the Committee for serious consideration and, of course, to the noble and learned Lord the Lord Advocate for his particular consideration. I think the public perception of redress has expanded enormously in the decade since the 1975 Local Government (Scotland) Act, for example, and I think that those in the new towns and those who are tenants of the SSHA are really entitled to be able to approach the commissioner if they have just complaint. I would urge the noble and learned Lord the Lord Advocate to give consideration of the serious character to this amendment.

Lord Wilson of Langside

I, too, would echo the hope that the noble and learned Lord the Lord Advocate will give serious attention to this. I am sure that, encouraged not only by what the noble Lord, Lord Morton of Shuna, has said, but also by the noble Lord, Lord Kirkhill, and myself, who are all united, the amendment will probably be acceptable to the Government.

Lord Cameron of Lochbroom

I seem to remember an old tag, Timeo Danaos et dona ferentes. On this occasion, however, while I do not exactly come bearing the gifts in hand, I am conscious of the fact that this is a matter which is being looked at very seriously. I would say that there is as yet one outstanding question which is the question of access by a complainant which is not firmly decided by Government as to whether it should be direct access or to a further body who would then refer it to the commissioner.

Perhaps I might suggest to the noble Lord that, since we have the summer Recess before the Report stage, it might be that the outstanding question of access to the commissioner can be resolved in time for me to bring forward an alternative proposal to your Lordships at Report stage. I am not giving a firm commitment to do so, but I would simply say that we shall try to do our best.

Lord Morton of Shuna

In those circumstances, the only thing to do is to withdraw the amendment. I beg leave to do that.

Amendment, by leave, withdrawn.

Clauses 55 to 58 agreed to.

Clause 59 [Citation, commencement and extent]:

Lord Cameron of Lochbroom moved Amendment No. 62:

[Printed above.]

The noble and learned Lord said: I spoke to this with Amendment No. 60. I beg to move.

On Question, amendment agreed to.

Lord Cameron of Lochbroom moved Amendment No. 63:

Page 41, line 9, after ("28") insert ("and 28B").

The noble and learned Lord said: This is a drafting amendment. I beg to move.

On Question, amendment agreed to.

Clause 59, as amended, agreed to.

Schedule 1 agreed to.

Schedule 2 [Amendment of enactments]:

Lord Cameron of Lochbroom moved Amendment No. 64: Page 45, line 37, after ("court)") insert ("(a)").

The noble and learned Lord said: This is a d rafting amendment. I beg to move.

On Question, amendment agreed to.

Lord Cameron of Lochbroom moved Amendment No. 65:

Page 45, line 40, at end insert ("; and

(b) in paragraph (i) of the proviso after the word "Act" there shall be inserted the words "(as amended by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985)".")

The noble and learned Lord said: Again, this is a drafting amendment. I beg to move.

On Question, amendment agreed to.

Lord Cameron of Lochbroom moved Amendment No. 66:

Page 46, line 4, after ("cause") insert ("proceedings").

The noble and learned Lord said: Again, this is a drafting amendment consequent upon the amendment to subsection (1) of Clause 18. I beg to move.

On Question, amendment agreed to.

Lord Cameron of Lochbroom moved Amendment No. 67:

Page 47, line 12, leave out ("section 19 of).

The noble and learned Lord said: Again, this is a drafting amendment. I beg to move.

On Question, amendment agreed to.

[Amendment No. 68 had been withdrawn from the Marshalled List.]

Lord Cameron of Lochbroom moved Amendment No. 69:

Page 48, line 32, at end insert—

("The Family Law (Scotland) Act 1985 (c. 37)

28A. In section 27(1) (interpretation) in the definition of "matrimonial home" there shall be added at the end the words "as amended by section 13(10) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985".").

The noble and learned Lord said: Clause 13(10) of the Bill extends the definition of "matrimonial home" assigned to it in Section 22 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981. This is a technical amendment designed to ensure that the amended definition in the 1981 Act also has effect for the purposes of the Family Law (Scotland) Act 1985. I beg to move.

On Question, amendment agreed to.

Lord Cameron of Lochbroom moved Amendment No. 69A:

Page 48, line 32, at end insert—

("The Representation of the People Act 1985 (c.50)

28B. In Schedule 4, in paragraph 61(b) (amendments of the Representation of the People Act 1983 relating to time limit for prosecutions) after the word "without" there shall be inserted the word "undue".")

The noble and learned Lord said: This amendment corrects an omission in the wording of Section 176(2)(b) of the Representation of the People Act 1983, as substituted by paragraph 61(b) of Schedule 4 to the Representation of the People Act 1985.1 beg to move.

On Question, amendment agreed to.

Schedule 2, as amended, agreed to.

Schedule 3 [Repeals]:

Lord Cameron of Lochbroom moved Amendment No. 70: Page 49, line 24, after ("words") insert ("convicted").

The noble and learned Lord said: This is a drafting amendment. I beg to move.

On Question, amendment agreed to.

Schedule 3, as amended, agreed to.

In the Title:

Lord Cameron of Lochbroom moved Amendments Nos. 71 and 72:

Line 5 leave out ("and").

Line 6, after ("stocks") insert ("and the control of pharmaceutical services").

The noble and learned Lord said: These amendments are consequential upon Amendment No. 60. I beg to move.

On Question, amendments agreed to.

Title, as amended, agreed to.

House resumed: Bill reported with amendments.