HL Deb 15 October 1985 vol 467 cc503-18

5.3 p.m.

Report received.

Clause 8 [Rectification of defectively expressed documents]:

The Lord Advocate (Lord Cameron of Lochbroom) moved Amendment No. 1: Page 7, line 38, at end insert ("and contain a description of the land to which the application relates").

The noble Lord said: My Lords, as a prologue to this amendment I should say that I believe the House will now have available to it the printed amendments, though I understand they could not be printed yesterday owing to difficulties beyond the printers' control. However, I shall take particular care to explain the purpose of the Government amendments as noble Lords will have had less notice of these than is normal.

With the leave of the House I shall speak to this amendment and to Amendment No. 38 at the same time. Amendment No. 38: Schedule 2, page 45, line 25, at end insert— ("Titles to Land Consolidation (Scotland) Act 1868 (c. 101) . In section 159 (litigiousity not to begin before date of registration in Register of Inhibitions and Adjudications of notice of summons) after the word "summons", where thirdly occurring, there shall be inserted the words "and contain a description of the lands to which the summons relates". . In Schedule RR (form of notice of summons) after the word "signeting" there shall be inserted the words "The summons relates to [insert description of lands].".").

During earlier proceedings on this Bill the noble and learned Lord, Lord McCluskey, and the noble Lord, Lord Morton of Shuna, expressed some concern about the effects of notices of litigiosity under Clause 8(7) on sales of land by third parties. I was unable to accept the amendment on the point in Committee, on the grounds that litigiosity only restricts the debtor in an obligation or defenders to an action, and hence does not affect directly a third party who has acquired land in good faith—quite apart from the general protection given to third parties in Clause 9. Nevertheless, in the light of comments which have been made the Government have considered more closely the provisions on notices of litigiosity, and have concluded that both Clause 8(8) and the existing provisions in the Titles to Land Consolidation (Scotland) Act 1868 could be improved.

Clause 8(8), deals with notices of litigiosity in relation to actions of rectification, and it merely requires the notice to give the names and designations of the parties to the application and the date when authority for service or citation was granted. This follows the existing provisions in Section 159 and Schedule RR of the 1868 Act for notices of litigiosity relating to actions for reduction and actions of adjudication. However, lawyers carrying out a search in relation to a transaction involving someone of the same name as a pursuer or defender in, for example, a reduction action already encounter difficulties in ascertaining whether the action affects their client's interest, especially where the name is a common one or where only a business or agent's address is given. Even when the relevant party has correctly been identified, confusion may arise where he owns pieces of land other than the one affected by the action. While it will usually be possible for the seller of the land to prove the transaction in question is not struck at by the notice of litigiosity, this will involve more delay and expense. Previously these difficulties had been tolerable, but with the increase in number of entries in the Register of Inhibitions and Adjudications, and the vastly increased volume of searches the problem is becoming a more severe one. Therefore, these amendments provide that notices of litigiosity, under both this Bill and the 1868 Act, shall also give a description of the land to which the summons or application mentioned in the notice relates.

I therefore commend these amendments—which, perhaps I may add, have the strong support of the Law Society of Scotland—to your Lordships ' House. I beg to move.

Lord Morton of Shuna

My Lords, I should like to thank the noble and learned Lord the Lord Advocate for this amendment, which I think goes a long way to meet the criticisms which I endeavoured to put and which the noble and learned Lord, Lord McCluskey, did put at Committee stage, and I also commend the amendment.

On Question, amendment agreed to.

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

Lord Wilson of Langside moved Amendment No. 2: Page 12, line 38, at end insert— ("( ) In section 15(3) of that Act at the end there shall be inserted the words "and shall arrest him on finding the said non-applicant spouse flagrante delicto and being satisfied that such arrest is necessary for the protection and in the interests of the applicant spouse.".").

The noble Lord said: My Lords, I beg to move Amendment No. 2 standing in my name. This is a very simple little amendment. It aims at tightening up the provisions regulating the circumstances in which a constable may arrest a person in breach of a matrimonial interdict. Your Lordships will remember that of course the matrimonial interdict was an invention of the Matrimonial Homes (Family Protection) (Scotland) Act 1981. That defines a matrimonial interdict as one which

  1. (a) restrains or prohibits any conduct of one spouse towards the other spouse or a child of the family, or
  2. (b) prohibits a spouse from entering or remaining in a matrimonial home or in a specified area in the vicinity of the matrimonial home".

Section 15 of the 1981 Act provided that the court on the application of an applicant's spouse could attach a power of arrest to any such interdict. It is important to bear in mind that such a warrant to arrest cannot be brought into operation unless it has been served upon the other spouse, so that he is of course fully certiorated of the circumstance that if he breaches the interdict which the court has pronouced against him, he will be liable to arrest.

The original provision in the 1981 Act was to the effect that: a constable may arrest without warrant… if he has reasonable cause for suspecting that spouse of being in breach of the interdict".

As some noble Lords may remember, I put down an amendment at Committee stage suggesting that the power of arrest should be obligatory and this was objected to on almost all sides; but it is important, I think, to remind your Lordships that the inspiration for the present amendment comes from those who are concerned with giving the necessary aid, comfort and support for the women and the children, if any, who have suffered abuse in their homes be it mental or physical or sexual, and in their relationships with their husband or with a man. Of course, the situations which the police have to deal with are very difficult. They always have been so, and I suppose they always will be so, where they have to intervene in what looks like a social and domestic background. But those who are concerned with this difficult problem of our society—which seems to have become more of a problem; certainly, it is talked about more and written about more than it once was—are concerned that there is an apparent reluctance on the part of the police to enforce these warrants of arrest in circumstances in which their clients, the distressed women, feel that they ought to be enforced.

One has to consider the background to this matter. It is one which raises this question. Is the protection which the court has given or purports to give to these unfortunate women being made sufficiently effective? As I say, there is evidence that in certain cases the reluctance of the police is such that perhaps the protection which the courts had intended to give to women is not being given; or so they tell me.

What this present amendment suggests is that the power to arrest granted by the warrant shall be exercised where the non-applicant spouse (the spouse who is alleged to be in breach of the interdict) is found in flagrante delicto and the constable is satisfied that such arrest is necessary for the protection and in the interests of the applicant spouse. I can quite understand the reluctance which there often is in some circumstances to give the police too sweeping powers. This anxiety was expressed at Committee stage by the noble Lord, Lord Morton of Shuna. Why on earth should a constable, if he finds a man in blatant breach of the interdict and is satisfied that the woman needs protection, not arrest him? I cannot understand this over-anxiety in a situation of this kind. One has to remember that these men, so those who have to deal with the problem say, are very difficult and awkward to deal with. It is very easy for them to lurk at the street corner nearby and then conceal themselves when the police are called to the scene; and so on.

This is the classic kind of situation that arises with these unfortunate women. They often lead an intolerable life, persecuted by their former partners to a quite intolerable degree. What I am suggesting to your Lordships is that in these circumstances there would be no danger of saying that, in the situation where a man is found in flagrante delicto and the woman obviously needs protection, the power of arrest should be exercised. That is the object of this amendment and I would ask your Lordships to approve it.

5.15 p.m.

Lord Morton of Shuna

My Lords, I would fully support the spirit behind this amendment in the sense that I think it is recognised on all sides of the House that there is far too much violence in the home and that unfortunately there have been many cases where sometimes very severe violence would have been prevented if the police who had been called to the situation had in fact taken the person involved into custody. But in my view this amendment is not the way to go about it. The general position of a police officer is that he has a duty to see that the peace is kept; but, attached to that duty, is that he shall interfere with the freedom of the subject as little as possible. And there is a specific duty put upon him if he charges somebody with an offence that he is to do whatever reasonably can be done to keep the person from being kept in custody.

This amendment would appear to go against that principle, and it would be unfortunate if that were done. I would suggest that the way that this problem can be dealt with is more in the line of directions by chief constables and members of the Government to police officers as to how they should deal with the situation, rather than by statute. That is the principle. But when one comes to consider the actual wording of the amendment and adds it into the Act, I think it is very difficult to see just exactly what a policeman is supposed to do with it.

If the amendment were in, the whole section would read as follows: If, by virtue of subsection (1) above, a power of arrest is attached to an interdict, a constable may arrest without warrant the non-applicant spouse if he has reasonable cause for suspecting that spouse of being in breach of the interdict. and now I come to the amendment— and shall arrest him on finding the said non-applicant spouse flagrante delicto and being satisfied that such arrest is necessary for the protection and in the interests of the applicant spouse". The interdict is to prevent the non-applicant spouse from being at or in the vicinity of the matrimonial home. I should have thought that the normal situation where a constable has reasonable cause for suspecting the spouse of being in breach of the interdict is if he is at or near the home. I am not sure what diference there would be if he would not also be in flagrante delicto, whatever that might be interpreted to mean by the courts. If he is in or at the door of the house or in the vicinity of the house, is he in flagrante delicto? And then is the constable given power to arrest, or is he given instruction to arrest, by the Act? In my view, it would be very difficult to get a coherent meaning out of the section if the amendment were added.

Another minor but important point is that the interdict by Section 14 of the Matrimonial Homes (Family Protection) (Scotland) Act is to be for the benefit of the other spouse or a child of the family. If this amendment were to be accepted as it stands, one would have the extraordinary situation that, as long as the non-applicant spouse was in flagrante delicto battering his wife, he should be arrested, but that did not matter if it was only for the protection of the child. I would have thought, on that small point, it would be necessary to add to the amendment, if it were to be acceptable to your Lordships, the words "or a child of the family". However, in general and for the reasons which I have endeavoured to give, I would oppose the amendment.

Lord Cameron of Lochbroom

My Lords, I cannot advise your Lordships to accept this amendment. I fully understand the purpose of the noble and learned Lord in proposing it, and should say at the outset that I fully sympathise with his concern that there must be an effective procedure for the enforcement of the protection provided by matrimonial interdict. But I find myself entirely in agreement with what the noble Lord, Lord Morton of Shuna, has said on the question of how it is best to deal with this situation and, also and more particularly, with the point which he makes, and which I think he is repeating from the Committee stage, about the question of constitutional principle. I have said before, and I repeat today, that the Government are committed to ensuring that the 1981 Act does afford the effective remedies against domestic violence that it was intended to. It is for this reason that the Government have commissioned research into the operation of the Act in order that assessment on the basis of reliable evidence as to whether there is need for a change in the domestic violence provisions of the Act can be made.

We expect this research to be concluded early next year, and we shall then consider what action should be taken in the light of such recommendations as are made. In the meantime, in the light of the concern which was expressed in this House at Committee stage and in another place and also by Scottish Women's Aid, I am presently reviewing the guidelines issued to chief constables on the Act of 1982 in order to see whether some further clarification might be of some assistance to the police. When this review of the guidelines has been completed we intend to consider with the Association of Chief Police Officers in Scotland whether the training and instruction on the Act given to police officers, both locally and at the Scottish Police College, could be improved and enhanced to give greater emphasis to the points of concern which have been identified.

It was agreed in another place after extensive discussion of this same question that the most appropriate and sensible way to address such problems would be by concentrating upon police training and clarification, if necessary, of the guidelines to chief constables. That was the conclusion reached by the noble Lord, Lord Morton of Shuna, and I concur in it.

There are also a number of reasons why I believe that an amendment in the terms proposed is unnecessary and may well have undesirable consequences. First of all, I should make clear that even the example the noble and learned Lord quoted about the difficult and awkward customer who concealed himself before the police arrived would not seem, on the face of his amendment, to be covered by what is proposed there, because it could never be said that such a person was caught in flagrante delicto. As I said, I would take issue as to whether that particular matter would be one which fell within the terms of the amendment.

I should make clear that the present guidelines issued to chief constables state that while a constable has a certain discretion which he may decide to exercise in trivial cases of breach of interdict, in most cases the constable will be likely to arrest an offending spouse. As I have said, a review of the guidelines is being undertaken at present and I shall give careful consideration to the question of whether additional emphasis should be placed upon the expectation that the offending spouse will be arrested in all but the most trivial cases and will certainly be arrested where this appears necessary to protect the other spouse or children. Where a matrimonial interdict has been breached, I believe that the discretion not to arrest should be used very sparingly and only for good reasons, bearing in mind that the safety of the applicant spouse and children is the paramount consideration. If additional emphasis is given to these points in the revised guidelines, I do not think that it will be necessary to incorporate in statute a mandatory requirement to arrest in certain circumstances. Under the present guidelines a policeman could certainly be expected to arrest in the circumstances to which the amendment applies: that is, where a constable has reasonable cause to suspect a husband of being in breach of a matrimonial interdict and where it is evident that arrest is necessary for the protection of the wife or children.

More importantly in a sense, I have profound reservations as to whether it is desirable to introduce in statute a mandatory requirement to arrest. The discretionary power of arrest is well precedented in the criminal law. The discretionary power is humane and sensible, and enables police officers to adopt a commonsense and flexible approach in circumstances where arrest may not always be the most appropriate means of dealing with the situation. I think it is necessary to recognise that there will be circumstances where arrest under Section 15(3) would not be appropriate nor in the best interests of all the parties concerned. When a similar amendment was proposed in another place at an earlier stage of the Bill, there was extensive discussion about the circumstances in which it would be a reasonable exercise of a police officer's discretion not to arrest a spouse who was in breach of a matrimonial interdict. I believe it was rightly concluded in that debate that some flexibility is desirable. I think we have to recognise that in this difficult area, it is not a realistic or practical approach to attempt to prescribe in primary legislation the appropriate action to take in every conceivable circumstance. There must be a balance between the general intention to be stated in legislation, the supplementary guidance and advice which can be given in guidelines and training, and what finally has to be left to the common sense and judgment of police officers acting in different situations.

I would simply say that the amendment would, I suggest to your Lordships, be more likely to confuse rather than to clarify the matter in this difficult area. After all, what it provides for is the introduction of a provision for mandatory arrest in very restricted circumstances which will then sit, as the noble Lord, Lord Morton of Shuna, has pointed out, side by side with an existing provision for discretionary arrest which already exists and which is based upon reasonable cause for suspecting a non-applicant spouse of being in breach of a matrimonial interdict.

I would suggest that there is a prospect that introducing a higher test for mandatory arrest based upon apprehending the offending spouse in flagrante delicto might imply that Parliament had signalled that it was less necessary to arrest when the offending spouse had left the scene before the arrival of the police, and that cannot be correct. The important question is not whether the offending spouse is caught in the act but whether protection is needed, and I do not think it is desirable that the state should give the impression that being caught in the act is a decisive factor.

5.30 p.m.

The noble Lord, Lord Morton of Shuna, has already pointed out, too, that there is an obvious error in the amendment in that the mandatory arrest would obtain only where the protection was to be sought for the applicant spouse and not for the children of the family although they would fall within the general ambit of the matrimonial interdict. For all these reasons, I cannot commend this amendment to your Lordships. I hope that in view of what I have said, and with the undertakings I have given in regard to direction in guidelines and to training of the police, together with the fact that we are maintaining an eye upon the operation of the Act and have commissioned research into it, that the noble and learned Lord will feel able to withdraw this amendment.

Lord Campbell of Alloway

My Lords, before my noble and learned friend the Lord Advocate sits down, may I ask him whether in the context of the guidelines—and I accept without qualification that this amendment, although not designed to do so, would tend to confuse rather than to clarify—consideration may be given as to whether breach of guidelines constitutes a disciplinary offence, and whether in the context of the codes of practice breach of them may be relied upon in court as seeking either to negative or constitute civil liability?

Lord Ross of Marnock

My Lords, the noble and learned Lord the Lord Advocate, the noble and learned Lord, Lord Wilson of Langside, and my noble friend Lord Morton have shown natural concern about the importance of this matter. But the noble and learned Lord the Lord Advocate said that he was demonstrating his concern by the fact that there is to be a review of the working of the Act, which, after all, has not been on the statute book for very long. Are we to hear anything about this? Is the review to be published or have we just to understand that it is finished when he makes some change, or does not make any change at all, in respect of guidelines'' How is Parliament to be informed about the result of this review and what action are the Government to take?

The Earl of Selkirk

My Lords, may I ask my noble and learned friend whether the experience is that Section 15(3) of the Matrimonial Homes (Family Protection) (Scotland) Act is not working well? We had considerable discussion on this in 1981, as I think the noble and learned Lord, Lord Wilson, will remember, and from the remarks which he and my noble and learned friend made there appears to be a suggestion that there is something wrong with the way in which it was eventually framed. This is an extremely important matter because, among all the troubles in the world, rows between husband and wife are just about the worst, and is some cases they positively have to be prevented by physical force. I do not want to comment on whether the amendment of the noble and learned Lord is right, but I think that the police should have ample ability to prevent wives or husbands from interfering unduly with the family or with the children. I should like to know whether there is any evidence that the police have inadequate powers or inadequate status to deal with this matter.

Lord Cameron of Lochbroom

My Lords, with the leave of the House, perhaps I may respond to the points that have been raised. May I deal first with the question raised by my noble friend Lord Campbell of Alloway? I am somewhat at a loss to understand his reference to codes of practice, but the guidelines are simply directions which the Lord Advocate has given to chief constables as to the manner in which the Act as it is presently framed should be used by police officers. It is on the basis of that, too, that instruction and training are given to police officers. It would not be within my competence at this point to indicate whether or not that would appropriately form a disciplinary offence. However, I shall bring my noble friend's remarks to the attention of my right honourable friend the Secretary of State who is, of course, responsible for the police.

As regards the point of the noble Lord, Lord Ross of Marnock, may I say how glad I am to see him here because at one stage, reading my copy of The Times newspaper last month, I understood him to have been translated to a different seat——

Lord Ross of Marnock

I turned it down.

Lord Cameron of Lochbroom

What I indicated was that the Government have commissioned research into the operation of the Act and the results of that research will be published. As regards the point of my noble friend Lord Selkirk, I do not necessarily accept that there is anything intrinsically wrong with the legislation. Like all these things, it takes some time for it to bed down. I should of course add that we are speaking about a power of arrest which arises in civil proceedings, but a confrontation between man and wife may well give rise to criminal charges and that is apart from the matter with which we are dealing. But I assure my noble friend that we are keeping a close eye upon the way in which the Act is operated.

Lord Wilson of Langside

My Lords, in the light of what has been said—putting aside the technicalities—I shall not press this amendment; but with the leave of the House, perhaps I may say this. I appreciate the technical points that have been made in relation to the amendment and the force of everything that has been said, particularly by the noble and learned Lord the Lord Advocate and the noble Lord, Lord Morton of Shuna, about this matter. My principal anxiety is that Parliament should give reassurance to those who are concerned in the field with dealing with this problem, and to some extent, I am greatly reassured by what the noble and learned Lord the Lord Advocate has said on that matter.

What the noble Lord, Lord Ross of Marnock, said is very important, because the matter should not just be forgotten, and we should be assured that the monitoring of the working of the scheme is thorough and complete. It should give reassurance—I am sorry to be repetitive, as I have already used that word—to those who are burdened with dealing with this problem in the streets and the homes of our cities and throughout the country. To some extent, my concern about it was increased by the letter from the Crown Office to Women's Aid—one of the principal charities dealing with this matter in Scotland—of which I was critical at the Committee stage. As I read that letter, which I thought was a piece of classic bureaucracy, I felt that those who ought to have been concerned in Edinburgh did not seem to appreciate the anxieties of the people who have this problem to deal with. I am greatly reassured now because I am sure that after the discussion we have had the noble and learned Lord the Lord Advocate will ensure that the problem is appreciated and that, so far as it is practicably possible to do so, the Act will be made effective. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Cameron of Lochbroom moved Amendment No. 3: Page 12, line 39, leave out ("(1)").

The noble and learned Lord said: My Lords, for the convenience of the House I shall speak to this amendment and to Amendments Nos. 4 and 5. Amendment No. 4: Page 12, line 40, after ("couples") insert ("(a) in subsection (1)"). Amendment No. 5: Page 12, line 40, at end insert— ;and

  1. (b) in subsection (6), in the definition of "occupancy rights"
    1. (i) in paragraph (a) for the words from "not" to the end there shall be substituted the words "to continue to occupy the house;" and
    2. (ii) at the end there shall be inserted the words—"and, without prejudice to the generality of these rights, includes the right to continue to occupy or, as the case may be, to enter and occupy the house together with any child residing with the cohabitating couple".").

Clause 13(2) and (3) of the Bill amend and supplement the definition of occupancy rights of married couples contained in Section 1(1) of the 1981 Act, so as to make clear that the occupancy right in the matrimonial home of a non-entitled spouse is indeed a right to occupy, including all the rights normally inherent in the right to occupy, and is not merely a right not to be excluded, and to make it clear that this right to occupy includes the right for a non-entitled spouse to have any child of the family with her.

These amendments are intended to make corresponding provision as concerns the definition of occupancy rights of cohabiting couples contained in Section 18(6) of the 1981 Act. There seems to me to be no justification why there should be any material difference between the occupancy rights of married and cohabiting couples as far as the definition of these rights is concerned and I trust that your Lordships will agree with me in this matter. I beg to move.

On Question, amendment agreed to.

Lord Cameron of Lochbroom moved Amendment No. 4:

[Printed above.]

The noble and learned Lord said: My Lords, I have spoken to Amendment No. 4 already, and for the convenience of the House perhaps I may move it along with Amendment No. 5 to which I have also spoken. I beg to move.

On Question, amendments agreed to.

Clause 18 [Small claims]:

Lord Cameron of Lochbroom moved Amendment No. 6: Page 16, line 12, leave out from ("prescribed") to end of line 14 and insert ("by the Lord Advocate by order").

The noble and learned Lord said: My Lords, for the convenience of the House I shall speak to this amendment along with Amendments Nos. 7, 13 and 14. Amendment No. 7: Page 16, line 17, at end insert— ((4) An order under subsection (2) above shall be by statutory instrument but shall not be made unless a draft of it has been approved by a resolution of each House of Parliament.") Amendment No. 13: Page 17, line 3, leave out ("made"). Amendment No. 14: Page 17, line 4, leave out from ("instrument") to end of line 6 and insert ("but shall not be made unless a draft of it has been approved by a resolution of each House of Parliament.").

At Committee stage the noble and learned Lord, Lord Wilson of Langside, proposed that orders under Clause 18 should be subject to the affirmative resolution procedure in each House of Parliament in relation to a draft of the proposed orders. In this he was supported by my noble friend Lord Campbell of Alloway. I undertook to consider the arguments which were then put forward for affirmative resolution. I have done so and I accept what was said, that the affirmative resolution procedure of a draft of the orders is appropriate in view of the general importance and interest of the subject matter of the orders. Accordingly, I beg to move.

On Question, amendment agreed to.

5.54 p.m.

Lord Cameron of Lochbroom moved Amendment No. 7:

[Printed above.]

The noble Lord said: My Lords, I should like to express my own personal appreciation to my noble and learned friend the Lord Advocate for having taken on board the view of the noble and learned Lord, Lord Wilson of Langside, which in fact has my support.

Lord Wilson of Langside

My Lords, with the leave of the House perhaps I may apologise for not expressing my appreciation. Things went on so quickly and my cerebration is so slow that I was caught on the wrong foot. I am very glad that the noble Lord, Lord Campbell of Alloway, took the opportunity to intervene. I am most grateful to the noble and learned Lord the Lord Advocate. This augurs well for the consideration that is given to your Lordships' debates in this House.

On Question, amendment agreed to.

Lord Cameron of Lochbroom moved Amendment No. 8: Page 16, line 33, leave out ("who").

The noble and learned Lord said: My Lords, for the convenience of the House perhaps I may speak to this amendment along with Amendments Nos. 9, 10 and 12. Amendment No. 9: Page 16, line 34, after "((a))" insert ("who,") Amendment No. 10: Page 16, leave out lines 41 to 43 and insert— ("(b) on whose part there has been unreasonable conduct in relation to the proceedings or the claim"). Amendment No. 12: Page 17, line 1, leave out ("(c)") and insert ("; nor do they apply").

At Committee stage the noble Lord, Lord Morton of Shuna, questioned whether the language of paragraph (b) in new Section 36B(3) was appropriate in that the words "frivolously" and "vexaciously" did not appear to add anything to the concept of unreasonableness in the context of the paragraph. The noble Lord then suggested that what we really had in mind was unreasonable conduct of the parties and he put down his own amendment to that effect.

I am very grateful to the noble Lord for raising the point. I have considered it carefully and I have come to the view that the form of wording along the lines that he suggested would indeed express quite clearly the Government's intentions. The noble Lord has in fact put down an amendment which is Amendment No. 11.1 should say that that does not go quite as far as the one which I have put down which, as noble Lords will see, covers both proceedings and the claim itself. Accordingly, I commend the amendments to your Lordships and beg to move.

The Earl of Selkirk

My Lords, before we leave this clause altogether perhaps we could draw the noble and learned Lord the Lord Advocate a little on what he proposes to do under the powers he has of making an instrument. While the noble and learned Lord has been extremely sensitive to parliamentary wishes—I think we should be very grateful to him for that—my experience is that people do not learn what is in an Act of Parliament until about three or four years have gone by. Therefore, if this is to be successful, and I hope it will be, people should get an idea fairly soon as to what exactly these new courts, which I think are an imaginative and interesting development, are going to be.

We want to know about three things. First, what is going to be the limit to which they are extended I see that the figure of £500 or £1,000 is suggested. My preference is for £ 1,000. I say this because £ 100 just after the Second World War would have been equivalent to £1,000 today. After another 20 years it will probably be valued at about £50. I should have thought that this should be allowed a reasonably long period in which to be understood.

The second point concerns the limit to expenses, the point at which expenses will not be payable. I imagine that the noble and learned Lord the Lord Advocate has in mind that this will be a personal litigant, probably not employing counsel or solicitors of any kind. I do not know what figure the noble and learned Lord has in mind. Thirdly, there is the question of the amount of expenses which could be allowed. If expenses are not allowed, will court fees still be payable? I think it is proper that we should have some idea about this. The reason I venture to draw this matter to the attention of my noble and learned friend is that the sooner people understand the nature of this court the more they will use it. At the present time probably up to 100,000 cases could be usefully dealt with in this court.

Perhaps the noble and learned Lord could give us some useful indication. If he cannot I shall of course understand, but perhaps he will then bring out his orders fairly soon.

Lord Morton of Shuna

My Lords, I am very grateful to the noble and learned Lord the Lord Advocate for having accepted the intention behind my amendment to take out "frivolously" and "vexaciously". I am also grateful to him for improving what I had suggested. Therefore I shall not be moving Amendment No. 11.

Lord Ross of Marnock

My Lords, I should like to press the noble and learned Lord the Lord Advocate on the point that was made by the noble Earl, Lord Selkirk. It is important that we know exactly who is going to be covered by these small claims. This is a very important innovation in our law and one that has been widely welcomed by consumer associations, the Law Society and so on. Are we going to get this £500 limit? I believe that £500 is the financial limit in English law, but that was set in 1981. So, if it is was suitable for 1981, it is out of date now. We should remember that this will not be applied this year—it will probably be next year at the earliest. It may well be 1987. So I hope that the figure of £500 is being dismissed very quickly from the mind of the noble and learned Lord the Lord Advocate. I suggest that it should be at least £1,000. Many consumer items are very expensive. Goodness gracious, if one goes to buy a lawnmower one discovers just how much one has to pay for it. These are relatively small but important items and can give very considerable cause for complaint. There is now little or no redress for the consumer because the cost of litigation puts people off altogether. If we are making the change let us be practical and realistic about the prices. I know that the noble and learned Lord does not want to put anything in, but he should open his mind to us in relation to this matter so that we can come at him again and persuade him to do the right thing.

Lord Cameron of Lochbroom

My Lords, with the leave of the House, perhaps I may be permitted to answer points which have been made by both my noble friend Lork Selkirk and the noble Lord, Lord Ross of Marnock. I shall do no more than commend to them what I said in Committee on these very matters. I went into them very fully. I should make it clear that the small claims procedure is not restrictive to party litigants but is aimed at permitting those who wish to appear on their own, or who wish to enlist a friend, to make use of a relatively informal procedure. I have listened to what has been said by your Lordships in respect of both the terminology of this Bill and more generally about limits. I shall certainly bear those comments in mind. I remind your Lordships that the draft orders will be subject to affirmative procedures and will be put before both Houses.

Finally, mention was made of court fees. I make it clear that they do not fall within my area of responsibility but within that of my right honourable friend the Secretary of State. I undertook to draw this matter to the attention of my right honourable friend at the time of our debate in Committee, and that remains the position.

On Question, amendment agreed to.

Lord Cameron of Lochbroom moved Amendment No. 9.

[Printed earlier: col. 513.]

On Question, amendment agreed to.

Following is the text of the amendment (No. 9): Page 16, line 34, after "((a))" insert ("who,").

The Deputy Speaker (The Earl of Listowel)

My Lords, before I call Amendment No. 10, I must point out to the House that if this amendment is agreed to, then I cannot call Amendment No. 11, which should be in the name of the noble Lord, Lord Morton of Shuna.

Lord Cameron of Lochbroom moved Amendment No. 10:

[Printed earlier: col. 513.]

On Question, amendment agreed to.

Following is the text of the amendment (No. 10): Page 16, leave out lines 41 to 43 and insert— ("(b) on whose part there has been unreasonable conduct in relation to the proceedings or the claim").

[Amendment No. 11 not moved.]

Lord Cameron of Lochbroom moved Amendment No. 12:

[Printed earlier: col. 512.]

On Question, amendment agreed to.

Following is the text of the amendment (No. 12): Page 17, line l, leave out ("(c)") and insert ("; nor do they apply").

Lord Cameron of Lochbroom moved Amendment No. 13:

[Printed earlier: col. 513.]

The noble and learned Lord said: My Lords, I spoke to both this amendment and the succeeding amendment, Amendment No. 14, when moving Amendment No. 6. I beg to move.

On Question, amendment agreed to.

Following is the text of the amendment (No. 13): Page 17, line 3, leave out ("made").

Lord Cameron of Lochbroom moved Amendment No. 14:

[Printed earlier: col. 513.]

On Question, amendment agreed to.

Following is the text of the amendment (No. 14): Page 17, line 4, leave out from ("instrument") to end of line 6 and insert ("but shall not be made unless a draft of it has been approved by a resolution of each House of Parliament".).

Lord Cameron of Lochbroom moved Amendment No. 15: Page 17, line 34, leave out from ("(3)") to ("(2C)") in line 36 and insert— ("(a) after "(2A)" there shall be inserted the words "(2B) or" ").

The noble and learned Lord said: My Lords, this is a purely drafting amendment in Clause 18(3)(b) to make clear that the decisions of the sheriff relating to remits made under Section 37(3)(a) of the 1971 Act, which are not to be capable of review, are those under subsection (2A), (2B) or (2C) of Section 37(3) of the 1971 Act. The present drafting in the clause might imply that the decisions relating to remits may be made only where all three of the subsections which I have mentioned are involved, and that would be unfortunate. I beg to move.

On Question, amendment agreed to.

Clause 39 [Fines in respect of drug offences]:

Lord Cameron of Lochbroom moved Amendment No. 16: Page 32, line 24, after ("made") insert ("by the offender").

The noble and learned Lord said: My Lords, for the convenience of the House I shall speak also to Amendment No. 18: Amendment No 18: Page 32, line 25, leave out ("the accused") and insert ("he").

In tabling these two amendments I am seeking to give effect to an undertaking which was made in Committee. These amendments ensure that in cases where an offender convicted of a drug trafficking crime is sentenced by virtue of Clause 39 to a fine in addition to a term of imprisonment or detention, the court should bear in mind the profits which the accused himself has made from the crime.

I am sure your Lordships will appreciate that it would be clearly undesirable if the court was obliged to have regard in fining one person to profits made by another, possibly a co-accused. This might not present a real problem in practice, as the court will always have regard to an offender's ability to pay before imposing a fine, but it is desirable to put the position beyond doubt. I trust that this meets the point properly raised by the noble Lord, Lord Morton of Shuna, during discussion of this clause in Committee. I beg to move.

Lord Morton of Shuna

My Lords, perhaps I may take up a moment of time just to repeat my thanks to the noble and learned Lord the Lord Advocate for making this amendment, which I believe to be of some importance.

On Question, amendment agreed to.

[Amendment No. 17 not moved.]

Lord Cameron of Lochbroom moved Amendment No. 18:

[Printed above.]

On Question, amendment agreed to.

The Deputy Speaker (Lord Nugent of Guildford)

My Lords, I should explain that Amendment No. 19 pre-empts Amendments Nos. 20 and 21. If it is agreed to, I shall not be able to call those two amendments.

Lord Cameron of Lochbroom moved Amendment No. 19: Page 32, line 28, leave out from ("in") to ("the") in line 30 and insert ("paragraphs (a) to (c) of subsection (4) or any offence mentioned in paragraphs (d) to (g) of that subsection where such latter offence involves a controlled drug as defined in section 2(1)(a) of).

The noble and learned Lord said: My Lords, the purpose of this amendment is to extend the new measures in Clause 39, which aims to deprive convicted drug dealers of the profits of their crimes, to cover offences involving all types of restrictive substances. In doing so it meets and expands upon a point raised in Committee by the noble Lord, Lord Morton of Shuna.

As I have said, the purpose of Clause 39 is to deprive convicted drug traffickers of the profits of their evil trade. In so doing the Government sought to reflect their particular concern about those controlled drugs which are described as Class A, such as heroin and cocaine. However, there are other drugs which fall within the two further classes, Class B and Class C, which may again be subject to trafficking and which could well cause misery and suffering as a result of the trade of drug traffickers and such evil men.

In those circumstances I suggest to the House that it is only proper that Parliament should make perfectly clear to drug traffickers that they can expect to be deprived of any profits derived from their crimes regardless of the category of drugs involved The purpose of this amendment is to put that beyond doubt. I beg to move.

Lord Morton of Shuna

My Lords, yet again I am grateful to the noble and learned Lord for taking on board the intention of an amendment which I suggested in Committee. I should have thought that it was fairly clear that drugs such as amphetamines and cannabis are drugs from which traffickers make very large profits. It is appropriate that they should be penalised also.

On Question, amendment agreed to.

[Amendments Nos. 20 and 21 not moved.]

Lord Cameron of Lochbroom moved Amendment No. 22: Page 33, line 10, leave out ("accused") and insert ("offender").

The noble and learned Lord said: My Lords, this is a minor drafting amendment which seeks to clarify the reference to a convicted person. As presently drafted the clause makes reference to a person who has been convicted as "the accused". Your Lordships will appreciate that that is not strictly an accurate description; a person in such circumstances should be described as "the offender". I beg to move.

On Question, amendment agreed to.

Clause 40 [Further provision as to fines]:

6 p.m.

Lord Cameron of Lochbroom moved Amendment No. 23: Page 33, line 30, leave out subsection (2).

The noble and learned Lord said: For convenience and by leave of the House, I would also like to speak to Amendments Nos. 35 and 39. Amendment No. 35: Page 41, line 26, at end insert— ("( ) Schedule (Transitional provisions) to this Act shall have effect for the purpose of making transitional provision."). Amendment No. 39: After Schedule 2 insert the following Schedule—