HL Deb 02 April 1990 vol 517 cc1146-237

5.27 p.m.

House again in Committee.

Clause 22 [Regulation of right of English, Welsh and Northern Irish practitioners to practise in Scotland]:

Lord Grimond moved Amendment No. 246: Page 27, line 22, after ("State") insert ("after consulting the Lord President").

The noble Lord said: We are discussing the regulations which will govern the appearance of English, Welsh and Northern Irish practitioners if they wish to practise in Scotland. The amendment seeks to associate the Lord President with the Secretary of State when he makes such regulations and to ensure that the Lord President is consulted. We have had a good deal of discussion about the position of the Lord President. I believe that this amendment will recommend itself to the Committee. As I have been brought up never to go on arguing with a judge if he appears to agree with you, and as it has been indicated that this amendment might be acceptable to the Government, I shall say no more but simply move it. I beg to move.

Lord Fraser of Carmyllie

I am pleased to accept the amendment, which I believe will give the Lord President a proper role in assisting the Secretary of State when he is making regulations about rights of audience and rights to conduct litigation for lawyers from other jurisdictions in the United Kingdom. In my view this role for the Lord President will sit conveniently among his present duties and the new functions which he is to be granted in relation to rights of audience for solicitors in the supreme courts and rights for non-lawyers to appear in court under Clause 21.

I should indicate to the noble Lord, who has a further amendment— Amendment No. 252— which mentions the same type of provision and which allows for consultations with the Lord President, that I shall also be accepting that amendment. Other amendments cover issues of consultation and propose the involvement of the Lord Advocate in the process. In view of the acceptance I now indicate as regards the amendment moved by the noble Lord, Lord Grimond, I hope that those further amendments will be withdrawn in due course.

Lord McCluskey

One of the other amendments referred to by the noble and learned Lord is tabled in my name. I refer to Amendment No. 254. The amendment draws attention to the importance of consulting the Lord Advocate, especially in relation to the behaviour of certain persons in the criminal courts.

The Lord Advocate is bound to be consulted by the Secretary of State in relation to such matters. Accordingly, the provision I propose is not necessary. In those circumstances I am happy to accept the remarks of the noble and learned Lord the Lord Advocate. I shall not, therefore, be moving Amendment No. 254.

Lord Morton of Shuna

Amendment No. 247 is tabled in my name. I also have delegated responsibility, if I may put it that way, from the noble and learned Lord, Lord Emslie, in respect of Amendment No. 255. I can see the point of the Lord Advocate being omitted from the drafting of the regulations. It may be that Amendment No. 255 puts the provision in a better place. However, apart from that observation, I confirm that I shall not be moving the amendments.

On Question, amendment agreed to.

[Amendment No. 247 not moved.]

[Amendment No. 248 had been withdrawn from the Marshalled List.]

5.30 p.m.

Lord Grimond moved Amendment No. 249: Page 27, line 23, leave out ("practitioner") and insert ("practitioners").

The noble Lord said: This is intended to be a probing amendment. However, before I speak to it, I should like to know what is happening in respect of the Committee proceedings on the Bill. It is now 5.30 p.m. According to my estimate we have many hours of discussion before us on legislation— the title appears rather misleading— of great importance to Scotland. I should have thought that it would be undesirable for us to continue our discussions into the early hours of the morning.

I have some doubt as to whether it is appropriate to put forward such a probing amendment, but I hope to do so shortly. Clause 22 appears to say a regulation must or can be laid before Parliament for every individual from England, Wales or Northern Ireland who is to be allowed to practise in the Scottish courts. If that is so, it seems to me to limit greatly the extension of the rights of audience. I am not clear as to how long it will take if it is to be done individual by individual, or whether such individuals will be allowed to represent their case if it is refused. I am also not clear as to how the Lord President will set about this process. It appears to me to be a highly restrictive subsection.

Two points strike me as being worthy of mention. The first is that I understand the right of audience may not be exercised by a person in Scotland unless he is instructed to act with a person who has the right of audience in that country. In my day it was customary that if you moved from one circuit to another in England, you had to have a barrister from that circuit present in court with you. One of the first five-guinea fees I ever earned was in connection with a case in Norwich. I was instructed to go there to make a comparatively honest man of someone who later became Lord Chancellor simply because he was not a member of that circuit. It was purely a restrictive practice. I did absolutely nothing on that occasion.

However, I can quite see that in this connection it may be that the incoming barrister will know nothing about the law in Scotland. Will an inquiry be carried out in each case to ascertain whether the barrister does or does not know Scotttish law? If a leading QC from England takes a case in Scotland, will he have to submit his credentials and perhaps those of his junior, and so on?

Secondly, I notice that the Lord President may even prescribe how such a person is to be called; in other words, what his title will be. That seems a laborious process. If we are to have English, Welsh and Northern Irish barristers in court, I wonder whether they could be entitled to practise in Scotland on the basis, for example, that they were QCs or had undergone some training in Scottish law. It may be that that is the intention of the clause. However, as it stands, it seems to entail Parliament having to consider an order applying to every person from England, Wales or Northern Ireland who wishes to practise in Scotland and who has therefore asked for the authorisation of the Secretary of State. I beg to move.

Lord Morton of Shuna

The noble Lord, Lord Grimond, introduced the amendment almost as if speaking to a clause stand part motion. Perhaps I may take advantage of that fact to inquire what are the purposes of the first two subsections of Clause 22. It is fairly simple to follow subsection (2) and easy to recognise that it would be right for the English, Welsh and Northern Irish lawyers to have the same or equivalent rights to practise in Scotland that would be afforded to an Irish or French lawyer, who, presumably, would be an advocate. However, it is completely obscure as to why the English, Welsh and Northern Irish lawyers are to be treated in a different way under subsection (1).

The European right, if I may so describe it, is controlled by the Common Market directive. As I understand it, there is one directive in place at present but there are others which will be introduced. It is only right that the equivalent right should be available both north and south of the Border. There is no argument about that fact. However, the English, Welsh and Northern Irish lawyers are no more instructed in Scottish law than are French, Italian, German or Irish lawyers. There seems to be no reason why they should suddenly be afforded additional rights to appear in a court, the procedures of which they are not familiar with, when those rights are not given to the Irish, who certainly do not speak a different language.

The reason for the provision is not clear. It would certainly be wholly damaging to the independence of Scottish law if we were suddenly to have English practitioners able to practise in Scotland without any recognition being made of their lack of Scottish qualification. There may be a superficial attraction in allowing clients to instruct English counsel or English solicitors to conduct commercial litigation in Scotland. However, once you move into the details of procedure you encounter the differences.

If I cast my mind back a few years I must say that I would have hated to conduct a trial on a criminal, commercial or even a personal injury matter in England where completely different rules of procedure apply. For example, in a criminal case, instead of talking straightforwardly about the crime of assault, having to talk about Sections 18 and 20, and so on, is almost the same as talking a different language. There is no need for such a provision. I hope that the noble and learned Lord will justify it when he replies.

Finally, if it is the Government's position— as set out in the consultation paper— that they have no intention of weakening the separate, distinct Scottish legal system, surely it is wholly unacceptable suddenly to import English, Welsh or Northern Irish non-lawyers to conduct litigation in Scotland. They would presumably be applying Scottish law in which they had no training whatever. That is allowed by subsection (1) because it involves practitioners who are qualified. If the noble Lord, Lord Grimond, multiplies the "practitioner" in line 2 of Clause 22, he must multiply the "is" in line 3 to "are". The difficulty of allowing non-lawyers, not educated in Scottish law, suddenly to practise in Scottish courts is an appalling thought and would gravely weaken the Scottish courts.

Lord Macaulay of Bragar

Perhaps I may raise a point of information. It is clear that "practitioner" is defined in subsection (6) as, a barrister or solicitor … and … any person falling within such category as may be prescribed in regulations made by the Secretary of State". Does that mean that there are two types of practitioners; namely, the qualified ones and any other person— unqualified— coming into the Scottish, system? I do not have a copy of the Courts and Legal Services Bill with me. Perhaps the noble and learned Lord the Lord Advocate can confirm that there are similar reciprocal provisions in relation to Scottish practitioners practising in England under that Bill.

Further, is the reason for this clause that neither Scotland nor England, or indeed Wales, is a member state of the European Community? Therefore there would be the strange situation where people could practise in Brussels but could not interchange between Newcastle and Edinburgh because they were not recognised as separate states.

Lord Fraser of Carmyllie

I am a little surprised that we have become involved in a more general consideration of the clause under this small amendment. Perhaps I may say to the noble Lord, Lord Grimond, that under subsection (1) "practitioner" is used in the singular. However, when we reach subsection (2) it is used in the plural. I accept that there ought to be a uniformity of approach and I shall take steps to ensure that that uniformity is achieved by way of amendments. As the noble and learned Lord, Lord Morton, indicated, if "practitioners" is used in the plural in subsection (1) there will be an "is" out of place.

I wished to deal with the underlying purpose of the clause when I reached my own Amendment No. 250A. Perhaps it would be simpler if I reserved my position as I shall make clear why I am introducing an amendment to delete part of the clause.

Lord Grimond

I am greatly obliged to the noble and learned Lord the Lord Advocate. In view of his promise that he will look at the drafting, I shall withdraw the amendment. I was aware that I was trespassing on ground which we had not yet come to, but I did so in the hope of saving the Committee's time. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 250 not moved.]

5.45 p.m.

Lord Fraser of Carmyllie moved Amendment No. 250A: Page 27, line 28, leave out from ("litigation") to end of line 30.

The noble and learned Lord said: As I have just indicated, these amendments secure a deletion of part of the clause. They delete conveyancing and confirmation services from the scope of the clause.

The purpose of this clause is to enable practitioners qualified in another jurisdiction of the United Kingdom to practise in Scotland on the same terms and under the same conditions as practitioners from other EC countries. In this respect, it mirrors the EC directive on legal services of 1975. However, the terms of the clause as at present drafted go one step beyond that and enable the Secretary of State to make regulations prescribing the circumstances and conditions under which a practitioner qualified in another jurisdiction of the United Kingdom could offer conveyancing or confirmation services in Scotland. This provision goes wider than the terms of the EC directive and therefore exceeds the Government's policy intention. These amendments will ensure that the terms of the 1977 directive are reproduced exactly in relation to lawyers from other UK jurisdictions.

Since the purpose of the clause is to rectify an anomaly— perhaps I may confirm this to the noble Lord, Lord Macaulay— a corresponding provision has been made in the Courts and Legal Services Bill in relation to Scots lawyers' practising rights in England and Wales. I hope that noble Lords will accept that these are changes which, in terms of the European Community obligations, we are bound to make. However, I hope that by our introducing these amendments noble Lords will be reassured that we go no further than those Community obligations require of us. I beg to move.

Lord Morton of Shuna

I am sorry if I said this on the previous amendment of the noble Lord, Lord Grimond, but I repeat it. If the provision is to give the English, Welsh and Northern Irish Common Market rights in Scotland, we have no objection to that. It is on the understanding that the Scots acquire Common Market rights in England, Wales and Northern Ireland.

However, I still do not understand what is the necessity for subsection (1) when subsection (2) says exactly that. What is the point of subsection (1) if it is no different from subsection (2)? Subsection (2) states: The Secretary of State may by regulations make provision for the purpose of enabling practitioners who are entitled to practise in England and Wales or Northern Ireland", on terms and conditions similar to those in the Common Market. The noble and learned Lord will no doubt be able to educate me as to the point of subsection (1). Subsection (2) seems to cover everything that he said. I am totally baffled as to the aim of subsection (1).

Lord Fraser of Carmyllie

The arrangement is this. In terms of subsection (2), the Secretary of State makes regulations which enable practitioners entitled to practise, to become qualified to practise in Scotland on terms, and … conditions". I think the noble and learned Lord appreciates that this is a matter on which the Government are out to consultation at present to determine by which route effectively such persons become to all intents and purposes Scottish advocates or solicitors, as the case may be.

Subsection (1) exists to deal with a rather different arrangement where people continue to be, to all intents and purposes, English barristers. However, in certain circumstances, given that they meet the conditions set out in paragraphs (a) and (b) of subsection (1), they will be able to secure rights of audience in Scotland. For all practical purposes there is probably little difference between the two but there are two routes to what looks like the same objective.

Lord Morton of Shuna

I am sorry to be obstructive, but if we are only trying to give the same rights to the English— if I may take them shortly to cover the whole batch— as we give to the French avocat, surely all that is needed is subsection (2). If we give the English greater rights, why do we do so when it does not seem necessary? I regret to have to press the noble and learned Lord but I do not follow what he is saying.

I understand what he said originally and fully agree with him that the English should have the same rights in Scotland as the French, Irish and other members of the Community. However, he seems to be saying that this is different. I quite understand that the regulations have to wait until the final directive is adjusted, but I do not see the need for subsection (1).

Lord Fraser of Carmyllie

Where someone met the regulations that are required under subsection (2), the lawyer— be he English, Welsh or Northern Irish— would be a lawyer for all purposes.

That is essentially what is set out in the 1988 directive. Subsection (1) is concerned with providing particular legal services in a narrower area. The Secretary of State may, for example, by regulations under subsection (1) indicate what rights of audience may be allowed. That may be very much more restricted than the broader provisions which are allowed for under the 1988 directive.

Lord McCluskey

I believe the proper course is to accept this amendment and move on because the meaning of the term "practitioner" is important. Some of the answers that the noble and learned Lord the Lord Advocate has given in relation to the points made by my noble and learned friend Lord Morton may not read very well when one considers the meaning of the term "practitioner" within this part of the Bill. However, we shall discuss that when we reach Amendment No. 255ZA.

On Question, amendment agreed to.

[Amendment No. 251 had been withdrawn from the Marshalled List.]

Lord Grimond moved Amendment No. 252: Page 27, line 32, after ("State") insert ("after consulting the Lord President").

The noble Lord said: We discussed this amendment with an earlier one and the Government indicated that they were willing to accept it. I beg to move.

On Question, amendment agreed to.

[Amendment No. 253 had been withdrawn from the Marshalled List.]

[Amendments Nos. 254 and 255 not moved.]

Lord McCluskey moved Amendment No. 255ZA: Page 28, line 13, leave out from ("solicitor") to end of line 15.

The noble and learned Lord said: The amendment seeks to delete the words from "solicitor" in line 13 of page 28 to the end of line 15. I therefore seek to delete from the Bill part of the definition of the term "practitioner". The Bill states in Clause 22 (6) (b) that it means, any person falling within such category as may be prescribed in regulations made by the Secretary of State".

The important thing about that provision is that Clause 24 contains a different definition of a practitioner. Clause 22 (6) (b) extends not just to English barristers and solicitors or to the persons referred to a moment ago by the noble and learned Lord the Lord Advocate as lawyers but to anybody at all. A practitioner is anyone whom the Secretary of State chooses to mention in the regulations.

In American jurisprudence scholars have discovered a rule called the gorilla rule. It derives from a riddle asked in America concerning where an 800 lb. gorilla sleeps. The answer is that it sleeps anywhere it chooses. That is the kind of provision we have here. It is a gorilla provision. It states that the Secretary of State may grant the entitlement to practise to anyone he wants. Is it the intention of Her Majesty's Government to allow pleaders who are not qualified lawyers in England but who are qualified to plead in England under the terms of the Courts and Legal Services Bill to practise in Scotland under the regulations which may be made under the provision which my amendment seeks to alter. I beg to move.

Lord Renton

This measure needs to be looked at. We are getting into a rather strange position whereby the Secretary of State for Scotland may find himself allowing people to practise there who are neither lawyers of any kind nor members of any recognised professional body such as patent agents but who may in some years' time enter the profession for a narrow purpose which is relevant to England. However, the Secretary of State may find himself obliged, in order to keep pace with what the noble and learned Lord the Lord Chancellor has provided under the Courts and Legal Services Bill, to grant rights of audience and rights to conduct litigation in Scotland where it would not be appropriate for such people as I have referred to to have such rights.

Lord Fraser of Carmyllie

As I understand it, this amendment is based on an objection to the fact that persons qualified furth of Scotland other than solicitors or barristers may in certain circumstances be able to practise in Scotland. I was specifically asked by the noble and learned Lord whether the Government proposed that such persons should be allowed to practise. As the noble Lord, Lord Renton, has already remarked, there is a parallel provision to be found in the Courts and Legal Services Bill in Clause 49.

Lord Ackner

It is in Clause 50.

Lord Fraser of Carmyllie

I am grateful to the noble and learned Lord for that correction. I must say I thought the provision was in Clause 49, but I shall check up on that. That provision would allow persons from Scotland who have acquired practising rights under Clause 21 of the Bill to practise south of the Border. Subsection (6) (b) acknowledges that a person who has passed through the rigorous requirements to acquire rights of audience or rights to conduct litigation in the courts of another jurisdiction of the United Kingdom might be sufficiently qualified to do so in certain circumstances in Scotland. In that event it would be unnecessarily cumbersome to impose upon such persons a requirement to conform specifically with the requirements which govern applications for rights of audience or rights to conduct litigation under Clause 21. Without going back over the debate we had on Clause 21, I can safely say that I do not envisage that the Secretary of State will make many regulations under this subsection. Nevertheless, in answer to the question posed, I should say that it is the policy that there should be a proper cross-Border reciprocity. I hope that the noble and learned Lord will appreciate that this Bill ties in, whether he likes it or not, with the provisions of the Courts and Legal Services Bill.

Lord McCluskey

With respect, the noble and learned Lord is in effect saying that the noble and learned Lord the Lord Chancellor has for reasons which command little respect put in the English Bill a provision which no one likes and that therefore the Scots should have it as well. That is just absurd. I have endeavoured with great success to keep my temper even all day and indeed for most of the proceedings at Committee stage, but this provision will simply not do. No one wants it in England, but they are going to get it. Therefore it appears that we are to have it in Scotland where no one wants it either. I do not understand the logic of that.

The noble and learned Lord the Lord Advocate reminds me of the old definition of an ambassador as a decent man sent abroad to lie for his country. He is a decent advocate sent into the House of Lords to talk nonsense on behalf of his client. The advantage of being an advocate is that one can always tell one's client to plead guilty. One cannot of course, tell the Secretary of State to plead guilty, but one could ask him to plead insanity. That would be understood in relation to matters of this kind.

I am not at all satisfied with the answer I have received. I should like to know the justification for this measure. I hope the noble and learned Lord will not use the grounds that the English are to get it and therefore the Scots ought to get it as well— the equality of suffering principle, if I may call it that. What I want to know is the rationale behind this provision that would command the assent of a reasonable man who came upon it and asked the noble and learned Lord the Lord Advocate to explain it to him. I want to know why persons who are not qualified lawyers in Scotland or in England and who are barefoot pleaders under rules applicable in England should be allowed to plead in Scotland. Does this provision derive from some EC directive? I believe it does not. I suspect it may even be contrary to EC directives and that it may be ultimately illegal.

Baroness Carnegy of Lour

Noble and learned Lords continue to defend their monopoly of the law in Scotland so skilfully that I have the greatest confidence that if I ever have to be defended by them they will defend me extremely well. The Committee must accept the fact that it is now considered that practitioners who act in conveyancing and who are not lawyers should operate in England and in Scotland. Other pleaders whom we are talking about now and who are not lawyers will also operate.

I am no lawyer but from my work on the European Committee I remember that the European directive applies only to lawyers. Part of our discussion on previous amendments related to catering for practitioners who would not be covered by the directive. We are now talking about people whom the noble and learned Lord, Lord McCluskey, calls "barefoot pleaders". The noble and learned Lords do not agree but many of us believe that there is nothing wrong with relaxing the lawyers' monopoly on the law in Scotland. If it is right that it should be possible for a Scotsman to plead in an English court I see no reason whatever why an Englishman should not plead in a Scottish court. I understand that that is what the amendment is about and no more.

6 p.m.

Lord Morton of Shuna

The Lord Advocate's last amendment removed from the clause any question of conveyancing. We are now concerned only with pleading in court and conducting proceedings. If the English Bill contains a provision similar to Clause 21 as amended by the noble and learned Lord a group of non-lawyers will be allowed to practise in certain specified courts, in certain categories of proceedings and on certain types of business with restricted rights of audience.

It is difficult to see how the specialised non-lawyer pleaders on Scotland will fit into a totally different legal system because it is largely the English procedure which relates to their competence. Is it the theory that someone able to appear in the English magistrates' courts in committal proceedings will be let loose in Scotland where we do not have such proceedings? What will he be let loose on? It appears a complete nonsense.

The argument appears to be based on the fact that we have Clause 21, although the noble and learned Lord says that no one is likely to be qualified to practise under it. Therefore, we shall not have non-legal practitioners in Scotland, but we shall have English non-legal practitioners landed on Scotland by the say-so of the Secretary of State. It is an odd procedure and I oppose it.

Lord McCluskey

With respect, the noble Baroness, Lady Carnegy, does not understand the intention of Clause 21. It provides that the barefoot pleaders can be authorised to plead in Scotland if they pass certain tests and, in particular, if, having regard to the paramount consideration of the administration of justice, the Lord President believes that they are fit and proper persons to plead. Those persons who are qualified in England do not come under the jurisdiction of the Lord President of the Court of Session. In deciding whether they should be qualified in England, the Lord Chancellor or the apparatus which exists will take a decision. However, the Secretary of State alone decides whether they are fit to practise in Scotland.

Although I disagree, I respect the views held by the noble Baroness about the right of lay people to plead in the courts. However, it does not touch upon the central point that they will be barefoot pleaders who enter the Scottish courts without passing under the jurisdiction and oversight of the Lord President. They will not be subject to the fit and proper test, or the administration of justice test. That is the obnoxious aspect of the provision.

Lord Fraser of Carmyllie

With respect to the noble and learned Lord, we are returning to discussion of Clause 21. In a clear and articulate fashion he has made clear the reason why he takes exception to those pleaders. I shall not follow his description of them as barefooted. Given that certain provisions contained in the Courts and Legal Services Bill will allow those qualified under Clause 21 either to have rights of audience or— and I stress— rights to conduct litigation in England, there appears to be a solid basis for arguing that there should be reciprocity. It is on that basis that we go forward.

I give one appropriate example. It may be that on this side of the Border arrangements are made for patent agents to appear before the English courts. In such circumstances they will be enjoying rights of audience within a narrow ambit. If a patent agent secures rights of audience in England it is appropriate that he should enjoy rights of audience in Scotland subject to necessary regulations. It is not difficult to think of a number of circumstances, which the noble and learned Lord, Lord Morton, appeared to be attempting to concoct, in order to show that that would be a curious arrangement. However, I suggest that a proper regulation is provided for under the clause to deal with those difficulties.

The Earl of Selkirk

Are regulations required for European lawyers to practise here? Are they laid down specifically and what are the terms? I believe that we should wish to have the same arrangements if they are satisfactory. Who will examine them? Is it a personal matter or will it be subject to regulations under which anyone can say, "I fall under the regulations and therefore I can appear in Parliament House"? What picture does the noble and learned Lord have in mind?

Lord Renton

I should like to remind my noble and learned friend that under the European Communities Act and the treaties which preceded it we are under a duty to "assimilate" our laws, which is the original translation. When we joined the EC the word "assimilate" was replaced by the English word "harmonise". I believe that the point made by my noble friend Lord Selkirk is relevant to our obligation to harmonise our laws.

Lord Fraser of Carmyllie

I had hoped when speaking to an earlier amendment that I had indicated that obligations arise under EC directives made in 1977 and 1988 whereby the persons whom we are discussing are lawyers in their own countries. I accept that we have now moved on to another class of persons; namely, those who are not qualified solicitors or barristers on this side of the Border but who fall into the class of persons who might be given rights of audience or the right to conduct litigation in England.

I neglected to say to the noble and learned Lord, Lord McCluskey, that in bringing forward the provision I do not suggest that it is part of the discharge of EC responsibilities. However, I wish to indicate clearly that that is the situation when we are dealing with lawyers.

Lord Mackie of Benshie

In order that lay people may understand the argument I wish to ask the noble and learned Lord, Lord McCluskey, whether his purpose would be fulfilled by instead inserting the words, prescribed in regulations made by the Secretary of State in consultation with the Lord President"?

Lord McCluskey

The noble and learned Lord the Lord Advocate has given the Committee its only concrete example; that of patent agents qualified in England. I understand that perfectly well. He said that they might wish to practise in Scotland, and I understand that perfectly well. They apply under Clause 21 and pass under the nose of the Lord President who applies the administration of justice test and the fit and proper test. That is the front door entry into Scotland under Clause 21.

However, let us suppose that they say, "That will take a long time. The Lord President, the Secretary of State and the Director General of Fair Trading come into Clause 21. How can we avoid that?". They look at Clause 22 and say, "Perfect. We can avoid the Lord President and the Director General of Fair Trading. We can avoid the test of the administration of justice and the fit and proper test. It is simple. That is the route for us to follow". I do not understand that. On my original reading of the clause I thought that it was something to do with the implementation of an EC directive. I came to understand that that was not true; indeed, I suspect that it is contrary to EC directives. I am not yet prepared to develop that argument although I hope that I shall do so later.

My noble and learned friend the Lord Advocate now tells the Committee that into a clause which masquerades as embracing our obligations to fulfil the EC directives there has been slipped that back-door route to enable people such as patent agents to practise in the Scottish courts. That provision should be taken out of the Bill. Were it not for the fact referred to by the noble Lord, Lord Grimond— that it is late in the day and the House in thinly attended— and that if I call a Division, vast numbers of persons will, as on the previous two occasions, emerge from the woodwork to vote against the proposition, not having heard any of the arguments, I should certainly divide the House. However, in this sorry state of affairs and although I have not heard any comforting words from the noble and learned Lord, I hope that he will take it away and consider it not in terms of the battalions that lie waiting to do his bidding but of the reasoned argument that has been presented.

Lord Fraser of Carmyllie

I shall consider the point regarding the involvement of the Lord President.

Lord McCIuskey

That is not enough for me. If the position is not improved, by which I mean if the provision does not disappear on Report, I shall have to divide the House. The correct route for barefoot pleaders who qualify in England is through the front door of Clause 21— the greatly enhanced and improved Clause 21 which we look forward to reading in the fullness of time.

Lord Hughes

For the benefit of those of us who have followed the debate with great interest but little understanding, perhaps I may ask, what is a barefoot pleader?

Lord McCIuskey

I might say that it was a person who is qualified to practise in certain courts and certain categories of proceedings under Clause 21 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990. However, for brevity, I have used the term which derives from North American experience, about which I spoke on Second Reading.

In North America the laymen were allowed into courts from about 1790 to 1875. They came in in vast numbers and almost totally destroyed the administration of justice. That is a well known fact. It is one that the late Chief Justice of the Supreme Court had in mind in constantly reaffirming his support for the division of the profession in this country. I referred to the matter in some detail on Second Reading. When speaking on the Courts and Legal Services Bill, my noble and learned friend Lord Ackner was good enough to refer to one or two of the quotations which I used.

A barefoot pleader is therefore a pleader who is not an advocate or a solicitor and is not qualified by any conventional route in law but has aspirations to plead on behalf of persons in a field of law in which he may well have— indeed, commonly would have— a real grasp of the legal provisions that bear upon that branch of the law.

Lord Hughes

I am grateful to the noble and learned Lord. I now understand at least that part.

Lord McCIuskey

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Fraser of Carmyllie moved Amendment No. 255A: Page 28, line 15, leave out from ("State") to end of line 17.

On Question, amendment agreed to.

On Question, Whether Clause 22, as amended, shall stand part of the Bill?

Lord Renton

I wish to make one brief point. When we were discussing the Courts and Legal Services Bill, it was found necessary to include a definition of a barrister in England. This clause refers to barristers in England. I therefore suggest that a similar definition should be included. I can tell the Committee what it should be. A barrister means a person who has been called to the Bar by one of the four Inns of Court and has not been disbarred or suspended.

Lord Fraser of Carmyllie

I am grateful to my noble friend for that assistance with the drafting. I shall look at that point.

Clause 22, as amended, agreed to.

6.15 p.m.

Clause 23 [Rules of conduct etc.]:

[Amendment No. 256 had been withdrawn from the Marshalled List.]

[Amendment No. 257 not moved.]

Lord Fraser of Carmyllie moved Amendment No. 257A: Page 28, line 25, leave out ("General of Fair Trading") and insert ("in accordance with section (Advisory and supervisory functions of the Director] of this Act").

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 257B: Page 28, line 25, at end insert: (" (1) Where it appears to the Faculty of Advocates that any rule of conduct in relation to the exercise of an advocate's right of audience in the Court of Session is more restrictive than the equivalent rule in relation to the exercise of the equivalent right in the sheriff court, they may submit that rule to the Secretary of State for his approval, and the Secretary of State shall consult the Director in accordance with section (Advisory and supervisory functions of the Director) of this Act, and thereafter, having—

  1. (a) considered any advice tendered to him by the Director;
    2. 1159
  2. (b) compared the rule applicable in the Court of Session with the equivalent rule applicable in the sheriff court; and
  3. (c) considered whether the interests of justice require that there should be such a rule in the Court of Session,
he may approve or refuse to approve the rule.").

The noble and learned Lord said: The purpose of the amendment is to ensure that rules relating to the supreme court conduct of advocates are treated in exactly the same way as those made by the council for solicitors for the purposes of ensuring that any disparity between those rules and corresponding rules in the sheriff court gives rise to no more restrictive a regime than is necessary in the interests of justice. The DTI White Paper, Opening Markets, which set out the Government's proposals for forthcoming legislation on restrictive trade practices, makes it clear that any professional rule which has been approved by a Government Minister will not be subject to challenge by the proposed competition authority. The relevance of those proposals to the debate is that certain rules of professional conduct made by the council under Clause 20 for solicitors with rights of audience in the supreme court will require the approval of the Secretary of State. They will therefore be outwith the scope of the proposed competition authority. Notwithstanding that the number of rules likely to be so affected would be very small, the provision ensures that no discrepancy emerges between similar rules applying to both advocates and solicitor advocates. I beg to move.

Lord Morton of Shuna

I do not understand the amendment. It starts with the supposition that advocates have a different rule of conduct for the sheriff courts than they have for the Court of Session. My understanding is that there is just one set of rules of conduct which applies to all courts. I therefore do not understand what the amendment can possibly mean. If there is only one rule of conduct, how can it be more restrictive than the equivalent rule in comparison with the sheriff courts when it is the same rule? It does not make sense.

It is also odd that under the rules of the Faculty of Advocates which require the approval of the court, the Faculty of Advocates, having presumably by inference failed to obtain the approval of the court, should have a right of appeal to the Secretary of State and that, in effect, the Secretary of State and the director should have the final say in the rules of conduct. It seems to be a quite bizarre amendment. I do not see what it is intended to achieve or to mean.

Lord Fraser of Carmyllie

If the noble and learned Lord wishes me to delete the provision at a later stage, I shall consider that. He might wish to talk with the dean of faculty beforehand.

Lord McCluskey

I think that I understand the provision better than I did before. However, am I not right in thinking that the difficulty is that it does not recognise the fact, referred to by my noble and learned friend, that an advocate carries his rules with him? That is why the same rules apply to him in the Court of Session as in the sheriff court. When he goes into the sheriff court, he has his rules with him. He there encounters a solicitor to whom different rules have been applied because of the exercise of his functions under Clause 20 by the Secretary of State. He is then entitled to seek to change the rules applicable to advocates.

Would it not therefore be more clear if line 4 of the amendment were to read: the exercise of the equivalent right by a solicitor in the sheriff court"? That would then give the clause some meaning. At the moment the meaning is totally obscure for the reason developed by my noble and learned friend. I can see the reasoning behind it; namely, that if one wants a level playing field, the advocates should be able to diminish the restrictions upon them. I hope that they will not do so. I hope that they will say, These are our rules and we stick by them regardless of what other people— barefoot lawyers or solicitors— may do in other courts". There is one other point which has not been taken on board by the noble and learned Lord the Lord Advocate. If he has the agreement of the Dean of the Faculty, I shall have to speak to the dean about the matter when I next see him. At the moment solicitors and advocates in Scotland are in straightforward competition in the sheriff court. They have exactly the same rights of audience. The rules for the advocates are made by the dean and his council. The rules for the solicitors are made by the Law Society.

At the moment there may be differences in the rules but I am not aware of them. I have practised hundreds of times in the sheriff court over the 30-odd years in which I was in practice at the Bar. I am not aware of them but if there are any differences at the moment they do not inhibit advocates from doing what they want to do. I do not see any reason at all for this provision. The noble and learned Lord the Lord Advocate does not seem to think either that it is a very good provision, but certainly when he considers the matter between now and Report stage perhaps he will consult further with the dean and ask whether this is the right form for this provision.

Lord Fraser of Carmyllie

Certainly I can say to both noble and learned Lords who have spoken that I do not think that there is any difference except that it is, to adopt the language of the noble and learned Lord, to provide a level playing field. As I explained, because it is the right given under Clause 20 to rules made by the Council of the Law Society, it was considered only proper that a comparable provision should be introduced in respect of advocates. We have a long enough Bill. If it is felt that this part might be deleted from the Bill at some stage, far be it from me to stand in the way.

Lord Morton of Shuna

The difficulty I have is that on 27th March the noble and learned Lord accepted in principle Amendment No. 223 which stated that the rules applying to solicitors should, correspond as nearly as may be to those which apply to advocates". He accepted that in principle. If that is to be the principle, those are the Court of Session rules of conduct. Why should the lower court rule over the Court of Session? If we have that principle, which the noble and learned Lord accepted, why should anybody be able to say, "Ah, in the sheriff court we can act in a different way"? Why should that change the Court of Session? Is that not the tail wagging the dog? Surely the Court of Session should take precedence over the sheriff court.

Lord Macaulay of Bragar

Perhaps I may ask the noble and learned Lord whether by using the phrase "any rule of conduct" he means any rules made under the legislation, or is he referring by that to the already existing code of conduct for the Faculty of Advocates? I gather from the answer that he gave to the noble and learned Lord, Lord McCluskey, that that particular rule will make life easier for the advocate rather than more difficult. But like the noble and learned Lord, I should like time to think about this point.

Lord Renton

Thre is a small printing mistake in the third line. The word "that" should read "than".

Lord Fraser of Carmyllie

I am grateful to the noble Lord. I meant to point that out.

On Question, amendment agreed to.

Lord Macaulay of Bragar moved Amendment No. 257C: Page 28, line 31, leave out ("restricting the extent to which") and insert ("prohibiting").

The noble Lord said: For the convenience of the Committee it might be appropriate to deal with Amendments Nos. 257C,257D, 258 and 258B at this time. With the leave of the Committee perhaps I may make a manuscript amendment in Amendment No. 257D by inserting the word "from" before "forming". I understand from a conversation that I have had with the noble and learned Lord the Lord Advocate that in that form the amendments are acceptable. I beg to move.

Lord Fraser of Carmyllie

Subject to the further amendment of that amendment, I am happy to accept the amendments. They would further limit the Secretary of State's involvement in approving Law Society rules. Rules which permitted multi-dis-ciplinary practices subject to restrictions would not require his approval. Therefore such rules in due course would be subject to the direct supervision of the com petition authority that we have proposed in our White Paper on restrictive trade practices. If that is what is desired by the Law Society, I do not object to the amendment. My offer to accept extends to Amendments Nos. 257C and 257D which, as I understand it, are the two amendments grouped together at present. So far as concerns the other two amendments, I am not quite sure how they tie in.

On Question, amendment agreed to.

Lord Macaulay of Bragar moved Amendment No. 257D: Page 21!, line 32, leave out ("may form") and insert ("from forming").

The noble Lord said: I beg to move.

On Question, amendment agreed to.

Lord Morton of Shuna moved Amendment No. 258: Page 28, line 34, leave out ("in relation to any court proceedings").

The noble and learned Lord said: This amendment leaves out the words: in relation to any court proceedings".

I may be wrong, because it is slightly obscure, but the effect of this section as it stands appears to be that the Secretary of State will not interfere with any prohibition on multi-disciplinary partnerships (if I may refer to them as such) unless they are involved in court proceedings. It is totally unclear to me why it is only in relation to court proceedings that the Secretary of State and the Director General of Fair Trading want to consider the possibility of multi-dis-ciplinary partnerships and what they are supposed to achieve.

If one allows one type of multi-disciplinary partnership to solicitors and prohibits others, one will just discourage those activities which permit multi-disciplinary partnerships. There is already prejudice by solicitors from the financial point of view against engaging at all in court proceedings, whereas one wants to encourage it. I cannot see the purpose of those words. If it is necessary that the Director General of Fair Trading and the Secretary of State should have a right of veto on rules, I suggest that it should be right across the board— all solicitors' practices. I beg to move.

Lord Macaulay of Bragar

Perhaps I may just add something to the remarks of the noble and learned Lord, Lord Morton. Another object behind the deletion is to make the new Section (3A) correspond with Clause 23 (1) in its application to advocates. As the Committee will note, Clause 23 (1) deals with the offer of professional services to the public and it contains no restriction, whereas the phrase "in relation to court proceedings" is a very limiting one.

The Law Society's objective is to get on equal terms with advocates because although advocates tend to concentrate on court work, I am told in fact that an advocate could do conveyancing if he so chose; but practice has it that no one has ever done it.

Lord Fraser of Carmyllie

It may help make for greater understanding of this difficult provision if I remind the Committee that this is not the only provision in the Bill that bears upon the formation of partnerships by solicitors. In Schedule 5 of the Bill is to be found the repeal of Section 27 of the Solicitors (Scotland) Act, whereby the statutory barrier to mixed partnerships will be removed.

I am grateful to the noble and learned Lord for tabling this amendment. I am very much aware that this provision possibly more than any other has caused considerable anxiety within the Law Society, which fears that it could have the undesirable effect of splitting the solicitor's profession into those who are involved in court work practising only with other solicitors and those who give up the right to practise in courts in exchange for being able to form partnerships with non-solicitors. That is not what subsection (2) of this clause is about; rather it is designed to recognise the potential for a conflict between a solicitor's duty to the courts and his responsibilities to other members of his partnership where those people are not also solicitors.

While the Government do not believe that it is in the public interest to maintain the existing ban on partnerships between solicitors and other people— hence the repeal in the schedule to which I have referred— they have acknowledged the need to make particular provision to take account of this area of possible conflict. It would appear that the Law Society does not favour the protection of restrictive rules about partnerships which this clause seeks to provide. The proper alternative is quite simple and would leave the Law Society to defend any restrictive rule about partnerships before the proposed new competition authority. There would be no ministerial approval to put beyond doubt that the rules were necessary in the interests of justice, however anti-competitive they might be.

The amendment proposed by the noble and learned Lord would in effect create a parallel situation since it would be most unlikely that the Secretary of State would wish to give his approval to any general rules made by the Law Society which prohibited partnerships. That would make nonsense of the removal of the present statutory ban to which I have referred. I do not think that there is any sensible half-way house. The choice seems to me to lie between removing the statutory barrier and giving no powers for Ministers to approve any general rules prohibiting partnerships or to recognise, as we have done in this clause, a particular area where conflict could arise and provide explicitly for restrictive rules in that area to be exempted from further attention of the competition authority.

The latter course is preferable in particular as it would put solicitors on a similar footing to advocates. However, I do not feel strongly about the matter and would be content— if that is what the solicitor profession wishes— simply to remove the statutory barrier in Clauses 26 and 27 and leave all restrictive rules to be dealt with by the competition authority in due course. In the latter case I would amend the Bill to remove subsection (2) altogether rather than leave it in the form proposed by the noble and learned Lord which I believe would be ineffectual.

I appreciate that it is an extremely difficult area. I suspect that the Law Society of Scotland may wish to look at the matter very carefully. However, I hope that by taking it at some length and providing some detail the noble and learned Lord and others interested in this area will appreciate what is intended by making the provision "in relation to any court proceedings" in Clause 23 (2).

Lord Morton of Shuna

I fully appreciate the intention. However, I regret that the effect is likely to be very different in that solicitors offering court work will disappear from Scotland.

I should like to read what the noble and learned Lord has said. I should also like to make it clear that I and, I suspect, the noble Lord, Lord Macaulay, are expressing our own views which may happen to coincide with those of the Law Society. We are in no sense acting as advocates for it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.30 p.m.

Lord Fraser of Carmyllie moved Amendment No. 258A: Page 28, line 36, leave out ("General of Fair Trading") and insert ("in accordance with section 64A").

The noble and learned Lord said: I beg to move.

On Question, amendment agreed to.

Lord Macaulay of Bragar moved Amendment No. 285B: Page 28, line 36, leave out ("has") and insert ("and the Lord President have").

The noble Lord said: This amendment follows upon our discussion of the proposal to delete the words, in relation to any court proceedings".

The effect of Amendment No. 258B is to put into the clause affecting solicitors the approval of the Lord President. The objective behind the amendment is to give the same scrutiny and approval as is contained in Clause 23 (1). I beg to move.

Lord Fraser of Carmyllie

I agree that it is desirable that the Lord President should approve of these rules. However, as we have seen emerging at an earlier stage, there is no need for this express amendment as all rules made by the Law Society require the approval of the Lord President under Section 34 of the Solicitors (Scotland) Act 1980. With that explanation, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Macaulay of Bragar

I thank the noble and learned Lord for that explanation. I believe that the matter has already been covered at an earlier stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 23, as amended, shall stand part of the Bill?

Lord Grimond

Before we part with the clause, if it is not going to be objected to, will the noble and learned Lord the Lord Advocate be kind enough to clear up my mind as a layman on one or two points concerning subsection (1). I find the negative drafting rather difficult to follow.

First, do I understand that if there is a rule that advocates may not form a legal relationship— as I believe there is— that rule will fall unless both the Lord President and the Secretary of State approve it? If one or other does not approve it, then advocates may form a legal relationship.

Secondly, perhaps I may ask the noble and learned Lord whether it is intended that we shall end up with a general rule either for or against legal relationships that applies to all advocates? Or will the Secretary of State and the Lord President, advised by the Director General of Fair Trading, make up their minds and pick and choose between advocates. Will they make up their minds that one or two may form a legal relationship and others may not? In either case, would it not be right that Parliament should give some sanction if this very important rule in Scottish law that advocates may not form a legal association should fall? Alternatively, if that is not intended and the Lord President and the Secretary of State are to make up their minds as to which advocates can or cannot form a special relationship, should we not be given a general indication of the grounds upon which it is expected that they will make their decision?

Lord Fraser of Carmyllie

As the noble Lord will appreciate, the provision at present is that at the Scottish Bar there cannot be partnerships between practising advocates. From what is proposed in the DTI White Paper Opening Markets, to which I have referred, if the Secretary of State as a Minister of the Crown approves of that prohibition against the formation of partnerships, in such circumstances the prohibition might continue and might be valid. However, the Faculty of Advocates would have to be prepared to go before the new competition authority and justify its reasons for establishing that prohibition which might be seen as too restrictive an arrangement. It might be bold enough and prepared enough to take that course.

It seemed appropriate that if the Faculty of Advocates wished to maintain that rule, and if it secured the agreement of both the Lord President and the Secretary of State, subject to the advice of the Director General of Fair Trading and approval having been secured, this would ensure that there was not the further involvement at some future date possibly of the competition authority.

The Earl of Selkirk

I approve entirely of what the noble Lord, Lord Grimond, said. It is not an easy programme to decide which provision indicates yes or no. From the moment that the Bill has Royal Assent, can advocates form a partnership? Are they free to do so?

Lord Fraser of Carmyllie

No. The provision is this. There is an existing rule, as the noble Earl appreciates, that there should not be partnerships. If advocates wish to avoid having that rule subjected to the scrutiny of the proposed competition authority, they should secure the approval and agreement of the Lord President and, in these circumstances, and more importantly, the agreement of the Secretary of State. Once they have secured his agreement, then the competition authority would be precluded from subjecting it to any further scrutiny.

Lord Renton

Can my noble and learned friend answer a question that is almost too simple? Is the underlying assumption that the partnerships will make the Bar less competitive or more competitive?

Lord Fraser of Carmyllie

I am not making any assumptions at all. I am giving the Faculty of Advocates the opportunity, of which I suggest it may avail itself, to go to the Lord President and to the Secretary of State and secure agreement to its continuing with its prohibition on partnerships, because if it pursues that route it does not put itself at risk with the new competition authority.

Lord Ackner

I should like to ask my noble and learned friend the Lord Advocate whether he is aware that the Director General of Fair Trading said in a long written memorandum to all Ministers some two years ago that to advance partnerships between solicitors and barristers would be to take a major step towards fusion. Is he also aware that in the course of debates on the Green Paper in England the same director general said that he considered that it would be a retrogressive step, or words to that effect, because far from increasing competition it would have the reverse effect?

Lord Fraser of Carmyllie

I am indeed aware of that, and I think the noble and learned Lord may take it that it is the knowledge of that which at least in part lies behind the particular formulation of this provision. If I were to be advising the Fuculty of Advocates, which I am not, given the well-known views of the present Director General of Fair Trading it might be well advised to get on with the matter as soon as it is open to it to do so.

Lord Grimond

May I be quite clear? Are we handing over to the Secretary of State and the Lord President the decision as to whether advocates can or cannot enter into a legally binding obligation? That seems to be a very big step, and I wonder whether Parliament is right to delegate that. As I understand it, they would be free to do so unless it is forbidden both by the Lord President and by the Secretary of State. Therefore, it appears likely that this will come about without direct parliamentary sanction, and I wonder whether that is correct.

Lord Fraser of Carmyllie

I hope I can reassure the noble Lord that I do not think anyone who considers this matter very carefully, particularly in the context of what is proposed in the DTI White Paper, will consider that this is an unacceptable handing over by an independent body like the Faculty of Advocates of a regulation or an important rule that it has and that is in any sense damaging to the Faculty of Advocates. If the noble Lord reads carefully what I said I think he will appreciate that this is something that I understand the Faculty of Advocates would be pleased to see on the face of the Bill.

Clause 23, as amended, agreed to.

Lord McCluskey moved Amendment No. 259: After Clause 23, insert the following new clause:

("Duty to act for any client.

. Except in circumstances in which it would be unreasonable to require him to do so any advocate and any solicitor or other person who has a right of audience in the Court of Session or High Court of Justiciary deriving from any provision of this Act shall be under a duty to act for any client or person who wishes to be his client (whether legally aided or not) in any Court in relation to which he exercises a right of audience provided only that such client offers to pay him such fee as is reasonable.").

The noble and learned Lord said: I beg to move Amendment No. 259. We have long winter evenings in Scotland and I have managed to while away quite a few of them by reading the proceedings of your Lordships' House, in Committee and on Report, on the Courts and Legal Services Bill. I have passed many a happy hour doing precisely that. In my reading I discovered that at one stage there was an amendment which was approved by your Lordships, the amendment having the effect of introducing the cab rank rule for those who were not barristers practising in England. Modelled upon that rule, which is now enshrined in Clause 15 (3) (d) of the print of the Court and Legal Services Bill which has gone to another place, is my Amendment No. 259. It is not exactly the same because the circumstances have to be different.

I believe that a lot of humbug can be and has been talked about the cab rank rule. In theory, every advocate stands ready to accept every set of instructions which is thrust in his direction. In practice, one knows that not to be true. It has even been permitted until the present time for advocates in Scotland— and solicitors for that matter— to take their names off the legal aid list, which means that anybody who can afford to litigate on legal aid only cannot instruct a particular advocate or a particular set of solicitors. So the cab rank rule is perhaps not as watertight as some of its protagonists would claim.

However, the virtue of the amendment which I propose is that this now puts into statutory form a rule very like the cab rank rule. It imposes the same rule not just upon solicitors and persons who are qualified either in terms of Clause 21 or of Clause 22 to exercise a right of audience in the supreme court, but upon advocates. Those advocates who have in the past been able to avoid the cab rank rule for one reason or another, while paying lip service to it on public occasions, will no longer be able to avoid it. That is the great merit of this provision.

Others would say that it has the separate merit that was advanced for the equivalent provision in what in now Clause 15 (3) (d), which I mentioned earlier. I do not propose to develop that argument tonight because your Lordships have heard it and accepted it. Indeed, it was accepted with support from all sides of the Chamber. Accordingly, I do not want to take up time on this occasion rehearsing those arguments, but I hope that those who are more familiar with them than I am may be able to do so, at least quite briefly. I beg to move.

6.45 p.m.

Lord Morton of Shuna

I rise briefly because this amendment is grouped with Amendment No. 259A in the name of the noble and learned Lord, Lord Emslie, who is unable to be present today. He has authorised me to say that even if he had been here he would not have moved Amendment No. 259A and would have supported Amendment No. 259. In view of what my noble and learned friend has said, I do not need to add anything to that support.

Lord Macaulay of Bragar

This amendment has the advantage that it does not lay down an absolute rule. The qualifying words in the first sentence: Except in circumstances in which it would be unreasonable to require him to do so", give some leeway in considering whether a person would be bound to take instructions in terms of the amendment. It has been said in another debate that with the privilege of appearing in the High Court and superior courts there also go responsibilities. This would appear to echo that principle. I support the amendment.

Lord Renton

This is very similar to the amendment which was passed to the English Bill. My recollection is that in the English Bill there was something to the effect, "so long as it was within his usual practice".

This is of great importance. It is a service that the Bar provides in the cause of justice and in order to ensure that any client, however unpopular, has a right to be represented before the court. All the people who have practised at the Bar within my recollection— and I am glad to see the noble Lord, Lord Grimond, with his name to this amendment because I remember him coming to the English Bar and to the south-eastern circuit many years ago— have been embarrassed from time to time by having to accept instructions.

If I may repeat an experience I had in 1938, I was commissioned in the territorials in June, elected to the Bar Council in July, and in October I was asked to accept instructions from a good London solicitor, who was already a client, on behalf of Hitler's Deutschebank. I found it distasteful to have to do that, but I consulted the chairman of the Bar at the time. He said, "You must do it". The only reason I was glad that the war came was that the custodian of enemy property took over the cases.

Lord Coleraine

As an English solicitor and in the absence of any Scottish solicitors being present in your Lordships' Chamber, perhaps I may say a few words without in any way speaking for the Scottish Law Society, whose views on this matter I do not know.

I am certainly aware that the noble Lord, Lord Macaulay, and the noble and learned Lords, Lord McCluskey and Lord Morton of Shuna, have practised as solicitors, but I think that long years at the Faculty of Advocates would perhaps render it invidious for them, if they felt a mind to, to speak against the amendments and against the idea that the cab rank rule should be imposed upon solicitors, whether in England or in Scotland. Of course, we are bedevilled throughout these debates by the fact that my noble and learned friend the Lord Chancellor, in giving evidence as Dean of the Faculty of Advocates to the Scottish Royal Commission, referred to the cab rank rule as a constitutional guarantee. I need not go into that now but that is an assumption which should be questioned.

It seems to me that the argument for the cab rank rule is that there is some natural law which decrees that any advocate like a tap—

Lord Macaulay of Bragar

I am sorry to interrupt the noble Lord but it may help if I say that I have indications from the Scottish Law Society that in its present form the amendment is acceptable.

Lord Coleraine

If the Scottish Law Society is happy with the cab rank rule in the form of this amendment, I shall leave the matter there.

Lord Ackner

My Lords, I should like to support this. In the amendment moved and passed on Report on the English Bill, eight out of 10 Lords of Appeal in Ordinary spoke and voted in favour of it. The other two were not able to be present in the Chamber. Three retired Lords of Appeal in Ordinary also voted in favour of it, as did the former Lord Chancellor my noble and learned friend Lord Hailsham, the Master of the Rolls and other very distinguished persons.

The constitutional reference is of course a reference to what was said in terms by my noble and learned friend the Lord Chancellor. There is nothing surprising about it because in the well known case of Rondel v. Worsley it was repeated over and over again with references in particular to what was said by Erskine as the justification for his defence of Tom Paine. I need not repeat that again.

It is also significant that the noble Lords, Lord Misshcon and Lord Pry-Davies, both of whom shouldered the Law Society's brief throughout the hearing of the debate, also voted in favour. In those circumstances, I need not speak at any length on the obvious reasons for supporting the amendment north of the Border.

Baroness Carnegy of Lour

I am sorry that my noble friend Lord Coleraine did not continue his speech. As the noble Lord, Lord Macaulay, conveyed the news to us that the Scottish Law Society has accepted this, my noble friend obviously felt that he should not continue.

This amendment states that: Except in circumstances in which it would be unreasonable", the solicitor must take on the client. What does that mean? What is unreasonable? As a lay person, that does not seem to be anything other than a tremendous let out.

At the end the amendment states: only that such client offers to pay him such fee as is reasonable". It seems to me that all that has to be done is to say that the fee is not reasonable and that is a let out. We heard that about the rules for barristers in England. I was rather surprised to hear how many let outs there were. It seems that solicitors are also accepting that in Scotland.

I believe that the speeches which I heard on the cab rank rule in the English Bill revealed more and more holes in it. It was like a sieve by the time we had finished and I was not surprised that the majority on which the amendment was passed was quite small. I believe that it was a majority of seven. I am sorry that the Law Society accepts this. My noble and learned friend the Lord Advocate must be very relieved that, rather than his being asked questions, something is being agreed to. However, as a person who may want the services of a solicitor, I am not very happy about this.

Lord McCluskey

I should like to deal with two points which have arisen. First, in relation to the point made by the noble Baroness, the courts are very well accustomed to construing a phrase as broad and indefinite as this phrase using the word "unreasonable". There was a time in Scotland when regulations which were made to govern the sale of milk, eggs and so on at the beginning of the war were held to be ultra vires and unenforceable because they depended upon the concept of reasonableness. However, even in Scotland that rule has now been changed and the courts are always prepared to look at the matter of reasonableness.

To some extent, that involves looking at a particular case from time to time after the event. Someone who thought he was acting reasonably is held to have acted unreasonably. The courts are accustomed to dealing with such matters: otherwise a similarly worded amendment would not have been supported by the distinguished judges mentioned by my noble and learned friend Lord Ackner.

The second point is that on the English Bill the noble Lord, Lord Renton, said that there was a provision which referred to the obligation to accept instructions in cases within the particular personal field of practice. The reason that I deliberately did not put those words into my amendment is that in Scotland all advocates are generalists. We are willing— although I do not say able— to practise in any court, criminal or civil. And indeed, we are willing to practise one day in a court and the next in a tribunal. I believe it has been said before that that tends to make good judges. It may not, as in England, produce the excellent specialist advocates in highly specialised fields but it produces very good judges with an enormous range of experience. I hope that that continues to apply to those noble Lords who sit in this Chamber.

The last point is that the concept of reasonableness was one which I was happy to adopt because of the recommendations contained in the report by a committee chaired by the noble Lord, Lord Renton, some years ago. He will recall that he heard evidence from the Lord Justice Clerk, Lord Wheatley, and the Lord President, Lord Emslie, who recommended that the legislature should not detail everything but should give broad principles. We should trust the judiciary to fill them out in the light of experience. That is the principle which I ask the Committee to adopt in relation to this. Therefore, I shall be interested to hear the reply of the noble and learned Lord, the Lord Advocate.

Baroness Carnegy of Lour

Before the noble and learned Lord sits down, he says that the courts are accustomed to interpreting the word "reasonable". I appreciate that because we often see it in legislation. However, from the clients' point of view, how long must he wait before he knows whether he can obtain the services of a certain solicitor at the price which he is prepared to offer?

Lord McCluskey

The client will decide that he wants a particular solicitor or advocate to represent him. He is then informed by the solicitor or advocate's clerk; for example, "I am not available. I am going to play golf. The client then goes to the applicable disciplinary body— in the case of advocates that is the dean and in the case of solicitors it is no doubt the Council of the Law Society and in the case of barefoot pleaders what the authority might be would depend on whether they were recruited from the Salvation Army or the Boy Scouts: I do not know— and seeks and obtains a ruling. What will inevitably happen is that rules will grow up and practice will grow round the rules. That corpus of understanding will extend to all those who practise and seek to practise and the public will be well served by such a development.

Lord Simon of Glaisdale

There are three potent reasons which speak in favour of this amendment but first, I deal with what was said by the noble Baroness and answered by my noble and learned friend Lord McCluskey. I presume to agree with everything he said. English law and, as I understand it, Scottish law are quite the same in this respect. Occasionally, but not all that often, the law says that if you can prove A and B then result C will follow. Far more often the law says that if you can prove conduct at a certain level, then result C will follow.

In by far the majority of cases the level which must be proved is that of the reasonable man. I should think that 10 times every day in the courts that is the test which is applied, certainly in England. And, as the Committee has heard from my noble and learned friend, that is also the case in Scotland. There is no difficulty in applying the test of the reasonable man. It is absolutely fundamental to our law.

Having said that, there are three potent reasons in favour of the amendment, The first is that the classic statement of the rule was made by the greatest Scottish advocate we have ever had at the English Bar, Thomas Erskine, who went so far as to say that if it was breached that would be an end of the liberties of English people. Secondly, it was stated with great force and authority by my noble and learned friend the Lord Chancellor in giving evidence to the Royal Commission presided over by the noble Lord, Lord Hughes, when he described it as being of fundamental constitutional importance.

Thirdly, your Lordships decided that an absolutely parallel provision should apply under the Courts and Legal Services Bill in England and Wales. Not only that: it was almost the only debate on that Bill which took place at a reasonable hour before a full House of your Lordships. The matter was most cogently stated by the noble Lord, Lord Alexander, with my noble and learned friend the Lord Chancellor, in spite of what he had said to the Royal Commission, endeavouring to controvert it. Your Lordships, having heard the argument on each side and notwithstanding the so-called payroll vote being mobilised against the English amendment moved by the noble Lord, Lord Alexander, decided by a majority that a comparable rule should apply in England. What reason is there for having one law south of the Border and another north of the Border? I therefore very strongly support the amendment.

7 p.m.

Lord Coleraine

I sat down earlier, having been the first Englishman to speak, but I rise again because the debate has widened and extended beyond the question whether this is what the Scottish Law Society accepts or is prepared to accept. It has entered upon the merits of the cab rank rule. I refer to the debate at the Report stage of the English Bill when my noble friend Lord Alexander moved his amendment and secured the approval of your Lordships by seven votes.

The noble and learned Lord, Lord Simon, referred to the fact that noble Lords were whipped out to vote for the Government, But your Lordships should be aware that a considerable number of members and former members of the Bar voted in favour of the amendment. According to my recollection and my calculation 27, 28 or 29 members or former members of the Bar were sufficient to carry the Division, with a majority of seven, three or four times over.

However, I should like to return to the question of the cab rank rule. The need to ensure that the grossly unpopular defendant or party to litigation, whose very cause may be repulsive, receives proper treatment and appropriate assistance when he goes to court, both in the preparation and presentation of his case, does not justify or require the imposition of a cab rank rule, either as a general rule or to meet particularly difficult cases. I make that statement with the caveat that that applies so long as there are enough of the best solicitors, advocates or barristers bound in conscience. I believe that there are enough, have been enough, and will remain enough who are committed to assist what one might call the dirty, the unclean and the unpopulat underdogs.

I must also point out that the National Consumer Council, which speaks on behalf of consumers, took a very strong view, before the amendment was carried that the cab rank rule did not operate to the benefit of the consumer of legal services. I will not elaborate on the arguments put forward, but I understand that after the passage of the amendment in your Lordships' House, to which reference has been made, the National Consumer Council again met the Bar and the Law Society and considered their respective representation. They came down very firmly in favour of the total undesirability of a cab rank rule being compulsorily imposed on solicitors in the provision of advocacy services.

The Earl of Selkirk

If it is any consolation to the noble Lord, Lord Coleraine, I was at the Bar many years ago and never heard the phrase. I believe that it emerged from over the Border. The noble Lord may correct me as to whether it is used now; I do not believe it is.

Lord Alexander of Weedon

Perhaps I may focus on one aspect of the debate not so far emphasised— the provision that requires all advocates to undertake legal aid work. My noble friend Lady Carnegy mentioned the problem of securing an advocate to undertake a task for a fee which he regards as appropriate.

I make my point simply by reference to one sequel to the discussion in your Lordships' House on the English Bill. I met a solicitor whom I know well and who has a good range of practice in the Midlands. He told me that the effect of the amendment might well be that his firm would decide not to extend its advocacy department. I asked why. He said, "We were hoping to extend our advocacy department, but in no way will we do that if it involves having to undertake legal aid work".

The obverse of that situation is obvious. If we had not passed the amendment he would have extended his advocacy department and declined to do legal aid work. I respectfully suggest that that makes the point that this rule is a very healthy discipline.

Lord Morton of Shuna

One of the reasons for proposing this amendment was adverted to by my noble and learned friend Lord McCluskey and was mentioned by the noble Lord, Lord Alexander; that is, to state, emphasise and strengthen the obligation on advocates and solicitor advocates that they should enhance their service to the public. That is something which is of great importance and has to be stated. That is why the rule is so important.

Lord Fraser of Carmyllie

This matter has caused considerable interest. However, as my noble friend indicated, it clearly excites more interest among practising lawyers than among the general public. The amendment was indeed carried during the Report stage of another Bill, where the make-up of the majority was interesting. I trust that it will not draw any adverse comment when it reaches another place. That would be very unfortunate.

To have the debate at this stage in these terms is rather more difficult considering that we have already carried Amendment No. 223B, which stated that: Where a solicitor having an appropriate right of audience in any of the courts mentioned … is instructed to appear in that court, those instructions shall take precedence before any of his other professional obligations". The council is then to make rules to establish the order in which he accepts them.

We had a fairly long discussion about that provision and I appreciate that a number of noble and learned Lords who contributed to that debate did not think that it was sufficiently clearly defined in as much as an order of precedence was to be created. Coupled with that, earlier we had some discussion, albeit brief, on Amendment No. 223 which related to the existing rules of the Faculty of Advocates. While I accept that I did not take that amendment on board, the noble and learned Lord, Lord Morton of Shuna, took at face value my undertaking that I wanted to look at the amendment again.

I can see that there is a relationship between that amendment which he proposed, the amendment we have agreed, Amendment No. 223B, and this Amendment, No. 259. However, if this amendent were to be carried, as was Amendment No. 223B, we would find ourselves in something of a muddle. For that reason I ask the noble and learned Lord to withdraw his amendment, or, if he is unable to do so, I invite the Committee to reject it.

The reason is not that I consider that there should be no provision made for solicitor advocates to follow something that looks very like the cab rank rule that applies in Scotland. Indeed, while I have not been made aware of the views of the Law Society on this amendment, I was well aware that the Law Society accepted that if members of the Law Society, having had training and secured the necessary qualification, secured rights of audience in the supreme courts in Scotland they should be under an obligation to appear for clients and that the procedure should be similar to the cab rank rule which applies to the Faculty of Advocates.

The noble and learned Lord, Lord McCluskey, is right that we ought to be careful of what we understand the cab rank rule to be. My noble friend Lord Selkirk, in spite of the fact that he was in practice some years ago, is unsure of it. In recent times I have come across an area of the cab rank rule where I cannot discover exactly how far it applies. It is in that respect, as the two noble and learned Lords who have contributed to the debate will appreciate, that every prosecution in the High Court in Scotland is conducted only by someone carrying my commission as Lord Advocate. It is far from clear to me, when I ask someone to accept that commission on a full-time basis, as it operates in Scotland for a period of years, that as a member of the faculty the advocate is bound to accept those instructions. If that is unclear, it seems to me that sometimes the much vaunted advantages that are stated for this rule may require some further re-examination.

However, I rest on the point that concerns me. We should not degenerate into a position of some confusion and chaos in this Bill by accepting this amendment when Amendment No. 223B has been accepted— I have indicated it needs to be looked at again— and is alongside the spirit of Amendment No. 223 which we have already considered. For that reason I invite the noble and learned Lord to withdraw the amendment.

Lord McCluskey

I hope we can now conclude this debate but I should like to add just a few words. The noble and learned Lord the Lord Advocate asks the Committee not to put the Bill into a muddle; but the Bill started as a muddle and it has become steadily more muddled as we have progressed. Half the Bill has already been rewritten and the other half is to be rewritten in due course.

Amendments Nos. 223 and 223B did not introduce any principle which is known by current jargon as the cab rank rule; they introduced an entirely different principle in relation to instruction. In any event, the Lord Advocate has agreed to reconsider that provision and its proper wording. Therefore, that area is in a state of flux.

The noble Lord, Lord Coleraine, mentioned the attitude of solicitors. I accept what was said by my noble and learned friend Lord Simon of Glaisdale that the same principle ought to apply, in a matter of such importance, to North and South of the Border, but its implementation may turn out to be different. If the Law Society of Scotland says that it is perfectly content with the amendment, what reason is there for not including it in the Bill? It suits the Law Society of Scotland and it matches the provision in England.

The consumers' lobby in Scotland has not lobbied me on this matter. I do not know what its views are in relation to Scotland. It has not vouchsafed them to me, though my amendment has been tabled for some time.

Finally, I said earlier that I would not divide the Committee. However, I have counted 37 Members in the Committee who have listened to the debate. I propose to divide the Committee because this is an important amendment and it will be interesting to count exactly how many noble Lords vote against the amendment, not having heard the debate.

7.16 p.m.

On Question, whether the said amendment (No. 259) shall be agreed to?

Their Lordships divided: Contents, 60; Not-Contents, 75.

DIVISION NO. 1
CONTENTS
Ackner, L. Lockwood, B.
Addington, L. Longford, E.
Airedale, L. Macaulay of Bragar, L.
Alexander of Weedon, L. McCluskey, L. [Teller.]
Benson, L. Mackie of Benshie, L.
Blease, L. Masham of Ilton, B.
Brooks of Tremorfa, L. Mayhew, L.
Buckmaster, V. Molloy, L.
Carmichael of Kelvingrove, L. Morton of Shuna, L. [Teller.]
Napier and Ettrick, L.
Carnock, L. Nicol, B.
Davies of Penrhys, L. Pitt of Hampstead, L.
Dean of Beswick, L. Ponsonby of Shulbrede, L.
Donaldson of Lymington, L. Prys-Davies, L.
Dormand of Easington, L. Renton, L.
Elles, B. Robson of Kiddington, B.
Elliot of Harwood, B. Saltoun of Abernethy, Ly.
Ewart-Biggs, B. Seear, B.
Graham of Edmonton, L. Selkirk, L.
Grey, E. Simon of Glaisdale, L.
Grimond, L. Stoddart of Swindon, L.
Hampton, L. Strabolgi, L.
Harris of Greenwich, L. Tordoff, L.
Hatch of Lusby, L. Turner of Camden, B.
Hayter, L. White, B.
Hughes, L. Wilberforce, L.
Jauncey of Tullichettle, L. Williams of Elvel, L.
Jeger, B. Winchilsea and Nottingham, E.
Kirkhill, L.
Lawrence, L. Winstanley, L.
Lloyd of Kilgerran, L. Winterbottom, L.
NOT-CONTENTS
Allenby of Megiddo, V. Brentford, V.
Arran, E. Bridgeman, V.
Auckland, L. Brookes, L.
Balfour, E. Brougham and Vaux, L.
Barber, L. Buckinghamshire, E.
Barnett, L. Butterworth, L.
Belstead, L. Caithness, E.
Blatch, B. Caldecote, V.
Blyth, L. Carnegy of Lour, B.
Borthwick, L. Coleraine, L.
Boyd-Carpenter, L. Colnbrook, L.
Craigavon, V. Long, V. [Teller.]
Craigmyle, L. Lucas of Chilworth, L.
Cranbrook, E. McColl of Dulwich, L.
Crathorne, L. McIntosh of Haringey, L.
Davidson, V. [Teller.] Merrivale, L.
Downshire, M. Milverton, L.
Elphinstone, L. Mountevans, L.
Elton, L. Munster, E.
Fraser of Carmyllie, L. Nelson, E.
Glenarthur, L. Orkney, E.
Gray of Contin, L. Pender, L.
Greenway, L. Phillips, B.
Gridley, L. Reay, L.
Harmar-Nicholls, L. St. John of Bletso, L.
Henley, L. Sanderson of Bowden, L.
Hesketh, L. Sharples, B.
Hives, L. Stockton, E.
Home of the Hirsel, L. Strathclyde, L.
Hooper, B. Strathmore and Kinghorne, E.
Hylton-Foster, B.
Jenkin of Roding, L. Swinton, E.
Johnston of Rockport, L. Thomas of Gwydir, L.
Kimball, L. Thurlow, L.
Kinloss, Ly. Trefgarne, L.
Kinnoull, E. Ullswater, V.
Kitchener, E. Wise, L.
Lauderdale, E. Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.

The Earl of Strathmore and Kinghorne

This may be a convenient moment to take a break in the Committee's proceedings until 8.15 p.m.

[The Sitting was suspended from 7.23 to 8.15 p.m.]

[Amendment No. 259A not moved.]

Clause 24 [Complaints in relation to legal services]:

[Amendments Nos. 260 and 261 had been withdrawn from the Marshalled List.]

Clause 24 agreed to.

Clause 25 [Scottish legal services ombudsman]:

The Deputy Chairman of Committees (Lord Hayter)

If Amendment No. 262 is agreed to, I cannot call Amendments Nos. 263 and 264.

Lord Morton of Shuna moved Amendment No. 262: Page 30, line 26, leave out subsection (6).

The noble and learned Lord said: I should like to speak at the same time to Amendments Nos. 263 and 264. They are grouped with my amendment, although no doubt my noble and learned friend Lord McCluskey will move them in due course. If the Government are not prepared to accept my amendment I shall support the amendments of my noble and learned friend.

Amendment No. 262 seeks to remove from the Bill subsection (6) of Clause 25, which relates to the ombudsman. Subsection 6 states: The following shall not be eligible to be appointed as the ombudsman".

My amendment removes the whole subsection. I cannot see why, if they are thought appropriate, advocates or solicitors should not be available to be appointed.

What is required is someone who is knowledgeable about the law. As I understand it, the ombudsman will be a full-time post. If the Secretary of State, who has the power of appointment, considers that a suitable advocate or solicitor is the best person for the job, there seems to be no reason why he should not be appointed. The same would apply to a qualified conveyancer or any member or employee of a professional or other body. The effect of my amendment is to open the door to the Secretary of State appointing the best person available in Scotland for the job.

The Earl of Selkirk

I support the noble and learned Lord, Lord Morton of Shuna, and I do so for this reason. When the subsection refers to advocates, does it mean a practising advocate, or does it mean someone who in a distant age became a member of the faculty? The same point applies regarding solicitors and conveyancers. What is meant by the subsection? Are these men condemned for life never to hold this office? Have they become so affected by some terrible quality of mind that they are totally unsuited for this office? I believe that the Secretary of State would be unwise to do this. It will not be too easy to find an ombudsman. It is a difficult task. One needs to have as free a choice as possible. I should have thought that the director general might be involved here. One does not want to inhibit people from doing the right thing. I suggest that the matter should be considered very carefully before we exclude those who may be of value in this office.

Lord McCluskey

The amendment is technically defective because the words, and subject to subsection (6) below", on line 44 of page 29 ought to have been deleted. That would have been the necessary paving amendment. However, I ask the Government to accept the principle of the amendment. I do not propose to speak separately to the amendments standing in my name, although I should be happy to move them if the Government were to indicate that they would accept that compromise.

My point is simply this. I have every confidence, as I am sure the Committee has every confidence, that the Secretary of State after consultation with the Lord President would not dream of appointing to this office anyone other than a person who is suitable. Under subsection (6) advocates and solicitors are ineligible. I should point out that at the moment advocates and solicitors are appointed to the Bench. On the Bench they are required to be totally impartial in all respects. If they can be impartial as High Court judges, or as sheriffs principal or sheriffs, why on earth should they not be trusted to be impartial if appointed as ombudsman? That is why I put down my Amendments Nos. 263 and 264 in relation to advocates and solicitors.

But I believe the general principle is the proper one. The Secretary of State after consultation can be trusted to appoint an appropriate person. It is a pity to limit his choice by saying that one cannot appoint an advocate and one cannot appoint a solicitor. I suppose the thinking must be that those outside might believe that someone who had previously had some connection with practice at the Bar could not be impartial as an ombudsman. That takes up the point made by the noble Earl, Lord Selkirk, regarding "advocate" as a description of a qualification rather than as a description of a career or a practice.

Therefore I ask the Government to remove subsection (6) from the Bill because again I see no reason why a person who acquired rights of audience by virtue of Clause 21 should be regarded as a person of such distinction eventually that he should be disqualified from occupying this office. For those reasons I support the amendment.

Lord Macaulay of Bragar

I should also like to express my support for this amendment. By insisting upon the exclusion of the groups mentioned in paragraphs (a) to (d) the noble and learned Lord the Lord Advocate is cutting out a considerable body of people who possess the very qualities which are required to carry out, for example, investigations which go to the root of the ombudsman's work. He is able to carry out an investigation, make an interim report, and so on, and reach a conclusion.

Advocates also sit as chairmen of tribunals, as indeed do solicitors, where they must be impartial and carry out almost the same job as the ombudsman is expected to do under this particular part of the Bill. I do not wish to go over the same ground covered by the noble and learned Lord, Lord McCluskey. I wish merely to express my support for what has been said in favour of the amendment.

Lord Mackie of Benshie

It appears to me from a lay point of view to be ludicrous to cut out a whole field of expert opinion in this connection. I say that because the consideration is not in respect of what the man does; it is in respect of his personal qualities. I support the amendment for that reason.

Lord Fraser of Carmyllie

I should like first to answer the point made by my noble friend Lord Selkirk. If he cares to read Clause 30 he will see that an advocate is defined there as, a member of the Faculty of Advocates practising as such". The amendments would remove an important element in the whole system of self-regulation for lawyers which exists under the 1980 Solicitor's Act, the new disciplinary arrangements for advocates and the new and enhanced provisions of the Bill. Much progress has been made in the last two decades to open up the way in which professional self-regulation operates by the introduction of lay people who introduce greater detachment and the perspective of the client. That is not to say that professional people cannot take a broad and non-partisan view of complaints against their fellow members but, in order that the decisions secure wide public acceptability, it is essential that they can stand up to scrutiny from outsiders.

The post of lay observer has been in existence now for 14 years and in that time through the energetic and diligent efforts of the post holders has secured significant improvements in the way the Law Society handles complaints against its members and has, I am sure, been valued by the society as a way of demonstrating to the public that its investigations are thorough and unbiased. Of course the lay observer does not always agree with decisions that the society takes, but as successive annual reports show the disputed cases are very much in the minority.

The present statutory arrangements for the lay observer provide that she or he should be neither a solicitor nor an advocate. I believe this independence is essential for the credibility of the post and must be carried forward to the new office of legal services ombudsman which we are creating. The amendments proposed by the noble and learned Lords would of course not lead automatically to the appointment of a lawyer or other practitioner to the post but would create the opportunity.

I must say that I would have greater sympathy with what is proposed if the new ombudsman was the first person to look at the complaints. The provision is essentially a two-tier arrangement. In some circumstances you can go directly to him. However, a situation one would envisage that the ombudsman is most likely to be involved in is where one of these professional bodies has dealt with a complaint, doubtless it believes satisfactorily, but where the complainant or the client disagrees with that decision. It is against that background that it seems to me to be valuable that the person who is entrusted with the determination of the matter should be, and be seen to be, detached from the professional organisation which may be at the centre of the complaint. For those reasons I regret to say that I cannot accept the amendment.

Lord McCluskey

The only comment I wish to make is that the noble and learned Lord the Lord Advocate carefully sawed off the branch upon which he was sitting when he replied to his noble friend Lord Selkirk. I say that because in referring to Clause 30 he pointed out that an advocate meant a member of the, Faculty of Advocates practising as such". An advocate practising as such can resign on Tuesday and on Wednesday morning when he wakes he will still be an advocate, but he is no longer an advocate practising as a member of the faculty. Therefore, on Wednesday morning he could be appointed to be the ombudsman.

Therefore it is absurd to say that the only qualification required if you are caught by subsection (6) (a) is that you resign your practising certificate, so to speak, on Tuesday night so that you may be appointed to be ombudsman on Wednesday. Briefly the mechanics are as follows. The Secretary of State will approach a practising advocate and say, "Would you care to be the ombudsman?" The advocate will reply "Yes, I should love to be the ombudsman". The Secretary will then say, "I can't really say anything but between you and me because we are members of the same club"— or regiment, or golf club, and so on— "if you resign your office at midnight, I can assure you that by eight o'clock tomorrow morning you will receive your commission". Of course that can be done. If the provision is as daft as that, it should, like the other daft parts of the Bill, be abandoned and the rest of it could be printed as a postage stamp to be sent out at Christmas.

Lord Morton of Shuna

I take up the point made by my noble and learned friend Lord McCluskey. From my own experience I have received letters drafted very carefully and very politely by the private secretary to the present and the previous Secretary of State for Scotland. Both letters stated that the Secretary of State was minded, if I would indicate my approval, to appoint me to the Criminal Injuries Compensation Board. I replied that I was minded to accept the position if the Secretary of State was minded so to employ me. We continued in that frame of mind. As my noble and learned friend said, that is the end of the matter. If I was minded to accept such an appointment I would be minded to write to the clerk of the faculty saying that I was minded not to continue in practice.

However, on that basis— namely, the impartiality which it is necessary to demonstrate to the public— that is presumably why the current lay observer has completed an apprenticeship as a solicitor, has an LL B degree and is therefore qualified to carry out the job. She has done everything necessary except the actual enrolment and obtaining of a practising certificate. This shows the ludicrousness of the situation. The Secretary of State considers that the best person for the job is somebody who knows what, in her case, she was talking about. It was a correct appointment. But why take out these people? I think that the noble and learned Lord might reconsider the matter. It seems that it is a distinction without a difference, one that could well be omitted. Why make the Bill so complicated? If the noble and learned Lord intends not to reply to the point and not to explain why the qualified lay observer should be chosen, I shall withdraw the amendment. But it seems totally unnecessary to have subsection (6).

8.30 p.m.

The Earl of Selkirk

Perhaps I may ask my noble friend what paragraph (d) of subsection (6) means. It speaks of: any member or employee of a professional or other body —what is a professional body?— any of whose members has acquired any right to conduct litigation". That presumably means that if any member of one's club happened to be qualified to litigate one would be excluded from being an ombudsman. There is the Director General of Fair Trading. Is this not a ridiculous restriction, not allowing the Secretary of State freedom in which to select the man he wants? Suppose he found out afterwards that that person was a member of a body any one of whose members had filed litigation. Is this not an absurd restriction which really cannot be defended?

Lord Fraser of Carmyllie

All I can say shortly in answer to that is that the language to be found in subsection (6) (d) reflects that in Clause 21. I am extremely fearful of again entering into debate upon that clause.

Lord Morton of Shuna

I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 263 and 264 not moved.]

Lord Macaulay of Bragar moved Amendment No. 265:

Page 30, line 36, at end insert: (8) In reporting his conclusions, the Scottish legal services ombudsman may recommend—

  1. (a) that the person with respect to whom the complaint was made pay compensation of an amount specified by the ombudsman to the complainer for loss suffered by him, or inconvenience or distress caused to him, as a result of the matter complained of;
  2. (b) that the professional body concerned pay compensation of an amount specified by the ombudsman to the complainer for loss suffered by him, or inconvenience or distress caused to him, as a result of the way in which the complaint was handled by that body.").

The noble Lord said: This is an amendment to the provision in relation to the appointment of the Scottish legal services ombudsman. The basic object of the amendment is to bring into force what is already included in the Courts and Legal Services Act for England and Wales, Clause 21 (2) (c) and (d). The object of this amendment would be to give the ombudsman power to recommend compensation to the person who has made a complaint, for loss suffered by him, or inconvenience or distress caused by him, as a result of, the matter complained of. The professional body concerned would also be recommended to pay compensation of the amount specified to the complainer for loss and so on suffered as a result of the way in which the complaint was handled by that body.

This new post is being created and will have a wide remit to consider all complaints relating to the services which were being provided under the Bill. That would cover a considerable number of bodies once various professional and other bodies had access to the court. At the moment under this Bill the ombudsman has no teeth whatever. It is pointless appointing him at all if at the end of the day when a person makes a complaint about the way his business has been handled, whether by a qualified solicitor or an advocate, he receives no compensation. If he is to go through the process of complaining to the ombudsman but nothing will come out at the other end in the form of compensation or even a recommendation for compensation, there is little point in him going to the trouble at all.

As experience has shown, people want an immediate resolution of their problem and some compensation for what has been done to them by the professional person. A court is the last place where a person who has been wronged by legal services in whatever form will want to go. That would mean him depending on the system of which he is already mistrustful, it having let him down. It would be an important shot in the arm for the post of ombudsman if the proposed amendment were inserted in the Bill. I beg to move.

Lord Morton of Shuna

We have already decided that the legal services ombudsman will have no legal qualification whatever. If that is so, it is difficult to see how he or she will be able to assess compensation in any way. It is interesting to note that the present lay observer, when this power was proposed, did not desire the power at all.

I had the pleasure of steering the Solicitors (Scotland) Act 1988 through this House, thankfully without any opposition. The noble Lord, Lord Macaulay, will no doubt bear in mind that under that Act solicitors were given power to make sure that solicitors gave compensation and made that order. That was the purpose of the legislation; it was why the ombudsman's power is not necessary. I suggest that to give this power to the ombudsman, who is apparently to take over wide-ranging powers without this, would be totally unnecessary. It is not clear whether there would be any power of appeal or, if so, to whom. It seems proper that any question of assessment of compensation, if it cannot be assessed otherwise, should be left to the courts. I therefore oppose the amendment.

Lord Fraser of Carmyllie

This is a very important amendment. The powers which the Lord Chancellor seeks to enable the legal services ombudsman in England and Wales to make recommendations about compensation are targeted on high levels of client dissatisfaction there with the way in which the complaints system is operating. It has been clear for some time that the reforms of the complaints procedures for solicitors introduced in England and Wales in the mid 1980s have not been a great success. Backlogs threatened to choke the system and client satisfaction has not significantly improved; further change was therefore called for. In Scotland, by contrast, reform came later and it is now little over a year since the Law Society of Scotland gained access to the new shoddy work powers and remedies conferred on it by the Solicitors Act 1988, to which the noble and learned Lord, Lord Morton, has just referred. I hope he will not fall off the Bench if I say that I entirely agree with him that it may be too early to judge the full effect of these changes. But the early indications are favourable.

The Law Society appears to be achieving high rates of success in disposing of complaints about inadequate services to the satisfaction of clients and in many cases without recourse to its substantial powers to enforce decisions. A substantial number of cases have concluded with the repayment of fees and outlays to clients for which that Act provided. I accept that compensation for inconvenience is something different but I think what matters is how the client feels at the end of the process. If he is not content with the outcome he can take the matter up with the lay observer or, in future, the ombudsman. It is still too soon to tell how many dissatisfied clients will feel the need to approach the lay observer because of the time lag between a complaint first being made and the lay observer becoming involved. From preliminary indications I would, however, be surprised if there was such a degree of dissatisfaction as to justify another substantial change so soon after the last one. And the change proposed by this amendment would indeed be substantial, since it would involve the ombudsman in the whole complex business of quantifying a client's loss. As the noble and learned Lord has indicated, the previous, recently retired lay observer for Scotland indicated her concern that she should not be entrusted with such powers.

I indicated to the noble Lord that I considered that this was an important matter because we are following a different route in Scotland. However, it seems to me that there is a substantial argument for taking that different approach. With that explanation, I hope that the noble Lord will feel able to withdraw the amendment.

Lord Morton of Shuna

I must apologise to the present lay observer for changing his sex. The lay observer is masculine. I should indicate my gratitude that for once the noble and learned Lord the Lord Advocate and I are on the same line.

Lord Macaulay of Bragar

I would find it surprising if the person appointed to this important post was someone who was incapable of assessing compensation in the kind of matters which would come before him. I appreciate the argument advanced by the noble and learned Lord the Lord Advocate on the distinction between the two countries. No doubt in the short time that will be left to the Government in office after the Bill becomes law they will keep a close eye on developments. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 25 agreed to.

Schedule 2 [Scottish Legal Services Ombudsman]:

Lord Fraser of Carmyllie moved Amendment No. 265A: Page 53, line 13, leave out ("Minister for the Civil Service") and insert ("Treasury").

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

On Question, amendment agreed to.

Schedule 2, as amended, agreed to.

Clause 26 [Judicial appointments]:

Lord McCluskey moved Amendment No. 265B: Page 31, line 2, leave out ("Secretary of State") and insert ("Lord President").

The noble and learned Lord said: In moving this amendment I wish to speak also to Amendment No. 265C. If the Government intend to accept them, I shall not take up any time dealing with the matter. However, the purpose of the amendments is to bring the appropriate provision in Clause 26 into line with the corresponding provision in Section 22 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 which allowed the re-employment of retired judges. Section 22 (1) stated: If it appears to the Lord President of the Court of Session that it is expedient as a temporary measure to make an appointment under this section … he may, with the consent of the Secretary of State, appoint a person who has certain qualifications. It appears to me and to the noble and learned Lord, Lord Emslie, who asked me to speak on his behalf in this regard, that the proper course in relation to the appointment of temporary judges is the same as that applied in relation to the re-employment of retired judges. I beg to move.

Lord Fraser of Carmyllie

The noble and learned Lord has referred to Section 22 of the 1985 Act. I accept that at first sight that appears to be the most appropriate analogy because those who would be appointed as temporary judges would serve either in the High Court of Justiciary or in the Court of Session. However, the situation is not as simple as that because those who are retired judges have previously received their commissions from the Crown. In those circumstances it is wholly appropriate for the Lord President to take the leading role, albeit with the consent of the Secretary of State, who has responsibilities for the funding of the supreme courts.

However, those who are to be appointed as temporary judges would not previously have received any commission from the Crown. In those circumstances, while it concerns a lower court, the closest analogy we have at present is that of temporary sheriffs principal. Sheriffs principal are of course appointed by Her Majesty while temporary sheriffs principal are appointed by the Secretary of State. Experience has shown that, when required, temporary sheriffs principal can be appointed very quickly and, so far as I am aware, no criticisms have been levelled at those arrangements. However, it is essentially for constitutional reasons that I cannot advise the Committee to accept the amendment. But I should like to take the opportunity to indicate that if temporary judges are to be used by the Lord President from time to time, the arrangements that we would propose for that would be of such a character that we do not envisage that there would be any undue delay in their appointment.

Lord Morton of Shuna

The analogy with the sheriffs principal is incorrect as sheriffs principal are different. A sheriff principal is only one person who covers one area. The appointment of temporary judges in the Court of Session and in the High Court means that for one reason or another there is a shortage of judges at the time. That is not the reason which applies to the appointment of a temporary sheriff principal. The reason for that is that the sheriff principal suddenly dies or becomes incapacitated. The only person who would know of this need for temporary judges is the Lord President. He would have to be the activator of any appointment.

The amendment standing in the names of the noble and learned Lords, Lord McCluskey and Lord Emslie, has a lot of strength to it, especially when one considers the experience of operating Section 22 of the 1985 Act. That has worked well. Therefore, it would appear to be putting the cart before the horse to state that the Secretary of State is the first person to notice the shortage of judges. I suggest that the noble and learned Lord should take this matter away and think about it again.

8.45 p.m.

Lord McCluskey

There is some force in what the noble and learned Lord the Lord Advocate has said. I had not appreciated that constitutional dimension of the: matter. However, my instinctive feeling is that we do not need this provision at all as regards the appointment of temporary judges because judges retire and die at such a rate that one could always just appoint an additional judge and then not reappoint his successor. One gets over temporary humps in that fashion in Scotland. I do not like the idea of temporary judges at all, but I should certainly like to discuss further with the noble and learned Lord, Lord Emslie, the reply that the noble and learned Lord the Lord Advocate has given because it raised a point that I have not discussed with him. In the light of that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 265C not moved.]

Clause 26 agreed to.

Lord McCluskey moved Amendment No. 266: After Clause 26, insert the following new clause:

("Retired Sheriffs

. For section 3 (3) of the Sheriffs' Pensions (Scotland) Act 1961 there shall be substituted— (3) In the case of a person retiring from the office of salaried Sheriff-substitute the amount of his pension shall be as follows, that is to say—

  1. (a) if the period of service does not amount to 5 years, 6/40ths of his last annual salary;
  2. (b) if the period of service amounts to 5 years or more, one-quarter of that salary plus l/40th for each completed year of service exceeding 5;
  3. (c) where the period of service is 15 years or more, one-half of his last annual salary".").

The noble and learned Lord said: This is a lengthy amendment, as the Committee will see. Its purpose is to introduce into Scotland equality of provision for sheriffs with certain others in relation to their pensions and the pensions that may go to their widows or widowers. The Committee may recall that in the Courts and Legal Services Bill, on I believe 15th February of this year, a similar amendment was moved and discussed by the Chamber. The noble and learned Lord the Lord Chancellor gave an undertaking that he would look at the matter within some months in relation to the judges who were covered by the amendment that was proposed by, I believe, the noble Lord, Lord Coleraine. Finally the amendment was withdrawn.

My amendment is mutatis mutandis the same for Scotland, although it endeavours to remove one or two other anomalies. I do not propose to take up the time of the Committee at this hour of the night because the noble and learned Lord the Lord Advocate was good enough to approach me and tell me that he was prepared to give a broadly similar undertaking so that the matter would be looked at at the same time as the noble and learned Lord the Lord Chancellor was considering the matters raised by the noble Lord, Lord Coleraine, and others in February. In the hope that that is the case, I propose to say no more at this stage. I beg to move.

Lord Fraser of Carmyllie

As the noble and learned Lord has been good enough to indicate, we have had the opportunity to discuss this matter briefly. The need for a range of changes to the judicial pension schemes has been examined by Ministers in various departments in the United Kingdom who have an interest in these matters. It has emerged clearly from the examination that, not least due to the sheer complexity of the various schemes, a piecemeal approach would be totally inappropriate. Accordingly, as announced by the noble and learned Lord the Lord Chancellor in this Chamber on I believe 15th February of this year, the Government have decided that the whole situation calls for a radical examination. The noble and learned Lord the Lord Chancellor said (at col. 649 of Hansard of 5th February): I can inform the Committee that along with my officials I hope to undertake such an exercise within the next few months in the hope that we shall be able to come forward with a revised scheme as soon as legislative time permits". I know that there is concern about the arrangements particularly among the sheriffs in Scotland. I emphasise to the noble and learned Lord that the work on a revised scheme is not singularly for England and Wales but for the whole of the United Kingdom. Work has already started on producing a revised scheme although, undoubtedly, it is a complex matter. Production of a new scheme will take some time, but I stress that the work has already begun.

Lord McCluskey

I am happy to receive the observations of the Lord Advocate. However, one must appreciate that an expression such as "within a few months" presents an elastic notion. There are anomalies which are addressed by my amendment and which could be put right without undue delay. That applies particularly in relation to the qualifying period for a full pension. It is unfortunate that these issues have been allowed to continue in their present state for so long. They were not first raised by the noble Lord, Lord Coleraine, in 1990; they have been raised repeatedly over the years by the Top Salaries Review Body. This is a long saga and it is time that justice was done. However, in the light of the assurances which I am happy to accept, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 267 not moved.]

Schedule 3 [Judicial Appointments]:

Lord Fraser of Carmyllie moved Amendment No. 267A: Page 54, line 1, leave out ("20 of this Act") and insert ("25A (rights of audience) of the Solicitors (Scotland) Act 1980").

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

On Question, amendment agreed to.

Lord Macaulay of Bragar moved Amendment No. 267B: Page 54, line 2, leave out ("5") and insert ("10").

The noble Lord said: The amendment covers the qualifying period for the appointment of judges under Schedule 3. Amendment No. 268 proposes to insert 15 years. Amendment No. 267B is put before the Committee to decide whether the qualifying period of five years is too short and whether a longer qualifying period for rights of audience before the Court of Session and the High Court of Justiciary may not be more appropriate. Qualifications for appointment as a High Court judge in the Court of Session are such that five years' experience in the Court of Session and the High Court of Justiciary is not sufficiently long. A period of 10 years would strike a happy medium and give the person a chance not only to learn the ways of a court but to assimilate experience which he can put to good use if and when he is appointed to the Bench. I beg to move.

Lord Morton of Shuna

The amendment is grouped with Amendment No. 268 in which my noble and learned friends Lord McCluskey and Lord Emslie and I suggest leaving out "5" and inserting "15". As I said on Second Reading, the provision is daft, to use the kindest word. No advocate or solicitor can be appointed a sheriff or a sheriff principal until he has served 10 years. Paragraph 1 (a) provides that sheriffs principal and sheriffs who have held office as such for a continous period of not less than 5 years can be appointed to the Court of Session Bench. If those gentlemen work at top speed they can do so in 15 years. That is 15 years as a continuous, full-time practitioner with judicial experience. However, the part-time solicitor must have held office for a continuous period of not less than five years in order to gain the right of audience. I suggest that when the period of appointment for a sheriff is 10 years it is ludicrous to have five years as the period of appointment for the Court of Session and the High Court of Justiciary, which are the superior courts.

Perhaps the reason advanced is Article 19 of the Act of Union. No doubt the parliamentary draftsman and the noble and learned Lord the Lord Advocate have studied that with great care. It provides for solicitors to be appointed to the Court of Session Bench. Solicitors are called writers to the signet. They can be admitted if they have been: Writer to the Signet for the space of ten years With the provision That no Writer to the Signet be capable of being admitted a Lord of the Session unless he undergo a private and publick Tryal on the Civil Law before the Faculty of Advocates and be found by them qualified for said Office two years before he be named to be a Lord of the Session". By what right is the noble and learned Lord amending the Act of Union by reducing the qualification of solicitors from 12 to five years? It is extraordinary. One finds the power to do so because Article 19 continues: yet so as the Qualifications made or to be made for capacitating persons to be named Ordinary Lords of Session may be altered by the Parliament of Great Britain". That is one provision of the Act of Union which specifically provides for this Parliament to alter it.

We must presume that in their wisdom the Government consider that in order to become a Court of Session judge one should have only half the qualification in time that is required to become a sheriff. In addition, that period of time can be part time. It is a ludicrous provision. It offends against the Act of Union. It also offends against reality because I doubt whether during the past 250 years— at least since hereditary jurisdictions were abolished after the 1745 rebellion— anybody has been appointed with as little as five years' experience.

As the noble and learned Lord knows, the Faculty of Advocates suggested that the provision could be reformed without any opposition from it. Therefore, I suggest that as a matter of bringing the Bill into touch with reality a period of 15 years would be an appropriate amendment. If the amendment tabled by my noble and learned Lord, Lord McCluskey, is not accepted I shall move my amendment.

Lord McCluskey

I am worried about two aspects of the debate. First, there is the danger that at this time of night logic and reason are beginning to enter the proceedings for the first time. Secondly, there is a misunderstanding about writers to the signet. As my noble friend has said, under Article 19 of the Act of Union, which is incorporated in the schedule to the appropriate Scottish and English Acts, after 10 years writers to the signet can, if they pass certain examinations, be appointed to the Bench. In Scotland that provision was enacted in 1706. Since then no writer to the signet has ever been appointed to the Bench under that provision. Recently I went to the WS library to ask how many WSs are currently qualified to be appointed under that provision. I believe that the answer is 903.

For 283 years we have had a provision which has allowed solicitors to be appointed to the Bench of the Court of Session but it has never been used. That helps to portray the nonsense of what is contained in other parts of this Bill.

My Amendment No. 269 is advanced with tongue firmly in cheek. I have no ambition to see the barefoot pleaders whom the Government wish to see tramping through our courts appointed as judges of the Court of Session or the High Court of Justiciary. But if we are to have the benefit of pleading by those ladies and gentlemen the logic of the situation is that they too should qualify after five years; that is, if there is any logic in the situation at all.

The Government have chosen the five-year period not because it makes sense but because, in the context of a Bill entitled the Law Reform (Miscellaneous Provisions) (Scotland) Bill they are terrified to mention the treaty of union. In Scotland that is a red rag to a bull. They have tried to keep it out. I hope that those of us who have mentioned it during debates on the amendments will, despite the huffing and puffing from the noble Lord, Lord Trefgarne, on the Front Bench, be seen to have done a public service. I support the amendment.

9 p.m.

Lord Fraser of Carmyllie

I do not think that there is any misunderstanding about the position of writers to the signet. It is a matter of how long they would have to serve before they would be eligible. They have the hurdle of examination before the Faculty of Advocates and I am not in the least surprised that none of them has ever been able to surmount it.

Lord Morton of Shuna

Perhaps the noble and learned Lord will tell us how many have tried.

Lord Fraser of Carmyllie

I have sufficient regard for the writers to the signet— all 900 of them, or whatever the number— to know that they appreciate that there is little or no prospect of their surmounting it.

There is no doubt that members of the Faculty of Advocates can be appointed to the Court of Session Bench after five years. I have no fear in saying to the noble and learned Lord that that provision is to be found in the Treaty of Union. Although it may be certain that no one at the Faculty of Advocates in sensible, modern times has been appointed after five years, I am more concerned to achieve a consistent approach. I do not know how long noble and learned Lords had to practise at the Bar before they were appointed. Clearly, one is looking to appointment in Scotland to the Court of Session Bench after such persons have been silks for some time. Those matters alter from time to time, but it tends to be 10, 12 or 15 years of practice before appointment even as a silk is arrived at.

The noble and learned Lord has clearly had some fun in twisting my tail over this matter. However— I do not seek to depart from this— whether there are solicitors and advocates or the field is strictly restricted to advocates, the objective must be that the person best fitted to appointment to the Court of Session Bench should be appointed. The issue of length of service has, I suspect, not weighed heavily with successive Lords Advocate in making their recommendations to the Secretary of State and the Crown.

If the minimum eligible period of five years has been considered appropriate for advocates for more than two centuries and has not caused difficulty, it would be less than realistic to assume that that provision in relation to appointment of solicitor advocates in future would suddenly open a door to allow people who had served only five years to be appointed. If noble and learned Lords think that there is consistency to be achieved in this, surely the proper starting point is with advocates and the Act of Union.

Lord Morton of Shuna

The difficulty is that, until the sheriff court Act of 1972, the period for a sheriff was five years. That was changed. That Act was not an appropriate Act under which to change the period for appointment of Court of Session judges. This is clearly an appropriate Act because we are asked to approve periods for qualification for appointment as a Court of Session judge.

We have said that someone who has served five years as a sheriff or sheriff principal having already served 10 years to be qualified to be appointed, should be qualified. I have no argument with that, but five years as an advocate or a solicitor looks daft. One should therefore have an amendment, which the Act of Union allows Parliament to include, to bring the period of qualification into touch with reality. I do not think that there has been an appointment to the Court of Session for at least two hundred years where anyone has been appointed with less than 15 years. Surely we should recognise that fact and not play about with a figure of five years which no longer has any basis in reality.

Baroness Carnegy of Lour

I know absolutely nothing about the circumstances in which people have been made Court of Session judges. However, I know that times have changed in the way we understand how people learn to perform a new role. There used to be time-serving schemes for apprentices. We used to think that an apprentice had to do X number of years before he could do a job. That went on long before the Act of Union. It was a tradition.

Nowadays we take the point that it depends on ability to perform a certain role. Once a person is capable of doing that, it is ridiculous to talk in terms of a set number of years. I take the point about the length of time it takes to become a sheriff in the sheriff court. I heard what the noble Lord said. I did not know that. I take that point, but it appears to suggest that someone will necessarily be a better judge because he has had rights of audience in the higher court for 10 years rather than five years. That flies in the face of reality. There has been a great deal of sarcasm and snide talking about something that ordinary people understand perfectly well; namely, the idea that, if one has ability, what one cannot learn in five years one will never learn, simply will not do.

Lord McCluskey

As usual the noble Baroness is right at least in her opening remarks in saying that she does not understand very much about this matter. The simple fact is that you cannot have sitting on the Bench a person who does not enjoy the respect of the persons who appear before him. The idea that a layman or any other person, after a simple five years, should be appointed to the High Court Bench is so absurd that even the noble and learned Lord the Lord Advocate does not support it.

What he says is, "I put this provision in because the Act of Union has a similar provision in relation to advocates". Very well, I can understand that. It is logical and makes some kind of sense because one knows that no one will be appointed to the Bench until he has served 20 years, 25 years, or whatever. To answer the question of the noble and learned Lord the Lord Advocate, in my case it was 31 years.

To suggest, as does the noble Baroness, that this should become a reality is to make a nonsense of the provision in the Bill. The noble Baroness should not contribute to a debate in relation to a matter of that kind when she knows so little about it.

Lord Fraser of Carmyllie

Perhaps I may say to the noble and learned Lord that I appreciate his understanding that I am concerned with achieving consistency. It may be at a level which, in real terms, is very low. But, as a more general proposition, what I am anxious to underline is that while it may be a considerably longer period than five years before anyone can secure elevation to the highest court in Scotland, the signal that I should like to give is that people get there because they have the requisite ability, qualifications and experience.

I must say that in a sense my noble friend Lady Carnegy is correct about this matter. What we would like to indicate is that it is the qualities of the person that are important in relation to the appointment, not whether he, possibly through some complicated formula, has served a sufficient number of years.

The Earl of Selkirk

Perhaps I may suggest that there should not be a five year period at all; perhaps it should be wiped out. I agree that it is a question of quality. I doubt whether anyone would gain the respect of the Court of Session unless he had served slightly longer than five years.

Lord Morton of Shuna

The difficulty about that proposition is that there is no amendment to the sheriffs appointment which can perfectly well appear in this Bill. If one considers that the period of service has no point, why have a 10-year period for the appointment of solicitors as sheriffs or sheriff principals? Why not abolish that too? If the noble and learned Lord wants to throw in that sort of logic, then let him throw it in and we shall discuss it. As it is at the moment it looks odd.

Lord Macaulay of Bragar

In giving his answer the noble and learned Lord, if I heard him correctly, seemed to concede that the period of five years (I hope I quote him accurately) was in real terms very low. To my simple mind at least that suggests that the noble and learned Lord accepts that five years is not a proper qualifying period. Apart from commenting that the period is in real terms very low, he says that the five years are there as an incentive to those who are coming into the law to show that they can become senior High Court judges but that they will not get an appointment after five years; it will probably be 10 years or 12 years. If that is the case, why not accept or at least think again about this very low period?

Lord Fraser of Carmyllie

Perhaps I may say to the noble Lord that if he wishes to table an amendment proposing an alteration for advocates, it is a matter that we might look at.

Lord Macaulay of Bragar

I am obliged for that piece of advice from the noble and learned Lord. I shall consider it for a later stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 268 not moved.]

Lord Macaulay of Bragar moved Amendment No. 268A: Page 54, line 2, after ("had") insert ("and have regularly exercised").

The noble Lord said: This is another amendment in relation to the same section of Schedule 3 in regard to the question of five years which we have just been discussing. To put it shortly, the reason for inserting these words is that a person can qualify for an appointment as a judge in the Court of Session and the High Court of Justiciary merely by having a right of audience for five years. The essential qualities for appointment as a judge are experience and knowledge of the courts. It may be that in reality someone who had never exercised his rights would never be appointed. Nonetheless the amendment is meant to ensure that only persons who have regularly exercised the right of audience would be eligible for appointment. I beg to move.

Lord Fraser of Carmyllie

We covered much of this matter in the previous debate. I am sure that the noble Lord opposite and the noble and learned Lords on the Cross-Benches can think of members of the Faculty of Advocates and others who have exercised rights of audience for considerably longer than five years, 10 years or 15 years and who, despite that regular exercise of their rights of audience, are extremely unlikely to be appointed to the Court of Session Bench.

As I indicated previously, I do not believe that it is a matter of time serving before appointment to the highest court in Scotland. There are particular qualities, standards of integrity and intellectual ability that are far more important than the regular exercise of rights of audience. While the noble Lord and I are probably unlikely to disagree about what makes up the qualities that are required of a Court of Session judge, I do not think that it is helpful to seek to set down a comprehensive list of requirements in statute. If I were to do so I should want it to be very much more extended than simply having "regularly exercised" rights of audience. I should be grateful if the noble Lord would consider withdrawing the amendment.

Lord Macaulay of Bragar

I am grateful for that answer. We had agreement as to qualities for people being appointed as judges in the Court of Session and the High Court of Justiciary. The amendment may be regarded as surplus to requirement. In the circumstances, I beg leave to withdraw it.

Amendment, by leave, withdrawn.

[Amendment No. 269 not moved.]

[Amendment No. 270 had been withdrawn from the Marshalled List.]

9.15 p.m.

Lord McCluskey moved Amendment No. 270A: Page 54, line 20, at end insert ("after such consultation with judges as appears to the Lord President to be appropriate in the particular circumstances").

The noble and learned Lord said: The amendment is designed to achieve a particular limited purpose. Under the provision which is now contained in the Court of Session Act 1988 and which dates from the beginning of the 19th century or perhaps earlier, the position was that a vacancy arising in a Division of the Inner House— that is the appeal court in Scotland— should be filled by the appointment of the Senior Lord Ordinary. Under the Bill, the vacancy is to be filled not by the person who is senior but by the person who is selected by the Lord President and the Lord Justice Clerk.

I have to declare an interest. I am currently the Senior Lord Ordinary. If the law remains as it has been for the past 200 years or so, I shall be the next to be promoted to that position. If the law is changed according to the provisions of this Bill, I shall have to line up with the others and face the awful prospect of selection by the Lord President and/or the Lord Justice Clerk. I declare that interest.

However, I wish to make plain that I entirely support the principle that lies behind the provision. It is that judges should be promoted to the appeal court rather than arrive there by reason of outliving their brethren who have got there before them and have died or retired while in office.

The constitutional point is a serious one. I wish to make it briefly. The most important attribute that a judge has is his independence. The safeguard of that independence is twofold. He cannot be rewarded for what he does and he cannot be punished for what he does or omits to do. In Scotland a judge once appointed remains a judge until he retires at the age of 75 or dies or retires through ill health. Nobody can help him and nobody can do him any harm. He is totally and utterly independent.

The trouble with this provision is that it enables someone to reward him. He can be rewarded by being selected to be promoted. He can be punished by not being selected to be promoted. That might begin to have the effect that judges begin to behave after their appointment in such a way as to win the favour of those who make the appointment.

My preference would therefore be that judges should be promoted from the court of first instance to the appeal court not by the Lord President and/or the Lord Justice Clerk but by election by all the judges sitting together. One could then put one's name forward or not as one wished. One could be elected if the other judges thought that one was a suitable person. That is what I should prefer. However, I can see difficulties about that.

I have therefore decided, with the consent of my noble and learned friend Lord Emslie, who knows much more about these matters than I do, to put my name to the amendment that stands in his name and simply to say that the appointment will be made, as the Bill proposes, by the Lord President and Lord Justice Clerk, after such consultation with judges as appears to the Lord President to be appropriate in the particular circumstances".

The provision has a certain weakness because the Lord President might decide that nobody needs to be consulted. However, in my view that provision is slightly better than what was there before.

In the hope that that very modest amendment will be accepted, I beg to move.

Lord Morton of Shuna

I do not think that I have any interest to declare. Considering the state of health of those who are senior to me in the Outer House and their ages, it is highly unlikely that I should ever reach the position under the present law of being promoted.

However, I suggest that it is a very dangerous provision as it stands without the right of consultation. It could isolate both the Lord President and the Lord Justice Clerk and could cause feelings of resentment. That would be very dangerous if it were to arise in a small college of justice of 24 members, as at the moment. It is therefore necessary that there should be some measure built in to deal with that. I support the amendment in the names of my noble and learned friends saying that there should be consultation.

I understand that the noble and learned Lord, Lord Emslie, had in mind that if for any reason the senior Lord Ordinary or the senior two or three Lords Ordinary were being jumped over by somebody junior to them it would be those senior ones who would be consulted. One can see that there is a great deal of sense in that. But on the whole I express the hope that this power should not be operated and the previous tradition should continue.

Lord Fraser of Carmyllie

This amendment was originally tabled by the noble and learned Lord, Lord Emslie, and I am grateful to him and to those who have spoken in support of it. I wish to indicate to the Committee that I accept the amendment as it is tabled. I should say that I understand it was always the intention of the present Lord President, Lord Hope, to carry out such consultation, but it is clearly no bad thing that that consultation arrangement should be spelt out on the face of the statute.

While I am indicating that I accept the amendment as it stands, I shall have another look at it before Report stage because there may be considered by some to be a slight curiosity in it— that the appointment is to be made effectively jointly by the Lord President and the Lord Justice Clerk. While the Lord President is clearly the senior judge it may seem rather curious that he should carry out consultation but someone with whom he has to make a joint appointment should not similarly consult. However, I want to emphasise as clearly as I can that the principle of what the noble and learned Lord, Lord Emslie, has set out is accepted.

On Question, amendment agreed to.

[Amendment No. 271 had been withdrawn from the Marshalled List.]

Lord Fraser of Carmyllie moved Amendment No. 271A: Page 55, line 26, leave out from ("section") to (", has") in line 27 and insert ("25A (rights of audience) of the Solicitors (Scotland) Act 1980").

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.

Clause 27 [Solicitors' fees]:

The Deputy Chairman of Committees (Lord Ampthill)

I should point out to the Committee that if this Amendment is agreed to I shall be unable to call Amendments Nos. 272A and 272B.

Lord Macaulay of Bragar moved Amendment No. 272: Page 31, leave out lines 12 to 26.

The noble Lord said: This amendment to Clause 27 of the Bill, which deals with solicitors' fees, is to leave out lines 12 to 26, which effectively takes out the first two sub-paragraphs of the new Clause 61A. That may seem a rather drastic way of drawing attention to the position, but it is a general view that the present wording of the clause is not happy in that it takes away from the parties the right to have the solicitor's account remitted for taxation.

Taxation is a very cheap method of deciding an issue between the solicitor and the client, and it is difficult to see why that old practice which has been going on in Scottish courts for years is being taken away. If a client agreed that a solicitor's fee should be £ 1,000, for example, and the solicitor managed to reach a quick agreement by doing £ 100 worth of work, there would be £ 900 afloat somewhere. The question is: if the solicitor says that the fee is £ 1,000, how does the poor client get back his £ 900 apart from raising a court action, again at expense and no doubt having to employ another solicitor and having to agree another fee?

Perhaps the Lord Advocate will kindly explain why that method of settling solicitors' accounts is being taken away. I understand that the sheriff court auditors do taxations for 4 per cent. of the net fee, and if more than 25 per cent. is taken off the account the solicitor himself has to pay the auditor's fee. So there seems to be a fair degree of equity in the present proceedings. I beg to move.

Lord Morton of Shuna

I do not see the point of this clause as it is drafted. What happens if the agreement in the new clause is that the accounts should be taxed by the auditor of court? Is that prohibited? It does not appear to cover that situation and that is a fairly frequent agreement; namely, that there should be a taxed account.

Lord Fraser of Carmyllie

There is nothing to prevent such an agreement.

Lord Morton of Shuna

The clause states that if there is such an agreement, it shall not be competent, for the amount due to be paid, for the court to remit the solicitor's account for taxation. If the agreement is to do that, why is it not competent to do it?

Lord Fraser of Carmyllie

I shall look at that again. To make progress on this, the noble Lord, Lord Macaulay, will appreciate that the Law Society and ourselves are anxious to allow two bases on which accounts between a solicitor and a client can be settled in future. First, my later amendment, which I hope will be accepted, will provide that if there is a written agreement to settle what shall be the fees, the well established procedure of going to taxation to establish what is the precise amount of the account will be excluded. However, if there is no such agreement the standing arrangement to allow for taxation persists.

It seems to me that the arrangement which we are now proposing is sensible. It may be that clients will feel very much happier having at the outset a clear statement of how the fee will be arrived at without being told in broad terms that the matter will be settled after taxation, because that is a process which the client may find extremely difficult to understand.

As I understand it, the Law Society of Scotland welcomes this opportunity. That is not only a matter of their own self-interest, because the Scottish Consumer Council has also taken the view that that would be helpful. In those circumstances, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Macaulay of Bragar

I shall read with interest what the noble and learned Lord has said. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Fraser of Carmyllie moved Amendment No. 272A: Page 31, line 17, at end insert ("in writing").

The noble and learned Lord said: As I have already indicated by my brief intervention on the last amendment, this amendment seeks to ensure that where there is an agreement between a solicitor and client as to how the fees are to be established without recourse to taxation by the auditor of court, that can only be allowed where the agreement has been reduced to writing. I should have thought that that was a valuable safeguard not only for the solicitor but also for the client.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 272B: Page 31, line 25, after ("no") insert ("written").

On Question, amendment agreed to.

Lord Macaulay of Bragar moved Amendment No. 273: Page 31, leave out lines 27 to 35.

The noble Lord said: This is the same type of amendment as a previous one which has already been discussed but in this case it refers to legal aid cases. That deletion is to enable legal aid accounts to be sent for taxation. I beg to move.

Lord Morton of Shuna

If the noble Lord is speaking to Amendment No. 273, then he is mistaken. He is in fact speaking to a later amendment. Amendment No. 273 deals with the speculative case provision. Perhaps we can get back on line and the noble Lord will tell us what is his argument on Amendment No. 273.

Lord Macaulay of Bragar

I am grateful to the noble and learned Lord for pointing that out to me. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 274 not moved.]

9.30 p.m.

Lord Macaulay of Bragar moved Amendment No. 275:

Page 31, line 35, at end insert: (" (5) In the event of a dispute arising between solicitor and client about the solicitor's account, the court shall when considering the nature of any agreement between the parties, consider the following—

  1. (a) whether the solicitor misled the client as to any material act in the negotiation of the agreement; and
  2. (b) whether the agreement was one which a knowledgeable client would reasonably have entered.").

The noble Lord said: This is an addition to Clause 27 dealing with the dispute arising between solicitor and client and raising two issues which the court would be obliged to take into account when deciding the nature of an agreement. It must consider whether the solicitor misled the client on any material fact in negotiating the agreement and also whether the agreement was one into which a knowledgeable client would have entered.

The short point behind the amendment is for the protection of the public. To a large extent clients visiting solicitors are at the mercy of the professional adviser and therefore this type of consideration should be spelt out in the Bill for the guidance of people entering into agreements. I beg to move.

Lord Fraser of Carmyllie

I understand the thinking behind this amendment and the reason why the noble Lord is anxious to ensure that any client who has been misled by his solicitor should be protected. I consider that the general law of contract, both the common law and case law, is extensive and detailed and can be relied upon to provide a basis for deciding any claim a client may wish to make relating to the circumstances in which an agreement was entered into.

I hope that that will be more than sufficient, but if I missed something, doubtless the noble Lord will inform me.

Lord Macaulay of Bragar

I am grateful to the noble and learned Lord the Lord Advocate. I appreciate that there is ample law on the question of fraud, and so on, that may be sufficient to cover the circumstances. Having heard that explanation, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees

If Amendment No. 275A is agreed to I shall be unable to call Amendments Nos. 275B, 275C and 275D.

Lord Morton of Shuna moved Amendment No. 275A: Page 31, leave out lines 36 to 42.

The noble and learned Lord said: This is an amendment to which the noble Lord, Lord Macaulay, inadvertently spoke. This also is an amendment which is supported by the Law Society.

The effect of Clause 27 (2) as drafted means that in any litigation the sheriff or Court of Session judge should settle any dispute as to the amount of fees or outlays. It appears both to the Law Society and to myself that the better person would be the auditor of court because that is his job. The effect, although no doubt unintended, of Clause 27 (2) would be a proliferation of unnecessary court actions and unnecessary delay and expense in those court actions which were necessary. I therefore beg to move.

Lord Fraser of Carmyllie

I appreciate the point made by the noble and learned Lord regarding the provisions of this subsection, which is concerned with the role of the auditor in respect of legal aid. This is not defined in the Legal Aid (Scotland) Act 1986 but appears in regulations and is a legacy carried forward from 1983 when the fees were prescribed by the Lord President of the Court of Session. An alternative to the auditor's role in relation to legal aid was first contemplated in 1983. This allowed my right honourable friend the Secretary of State to prescribe regulations to provide for the assessment and taxation of fees and outlays and for the review of any such assessment either by himself or by any other person.

While in some cases auditors' decisions have assisted the Scottish Legal Aid Board in forming guidelines for future assessment of accounts, in others inconsistencies have arisen when varying decisions on the same question have been given by different auditors. It is particularly unsatisfactory that the auditor should be put in the position of interpreting legal aid regulations because that is not what his training equips him for.

Against this background, where a dispute between a solicitor and the board arises the auditor should not have an automatic role as adjudicator. It is wrong that the auditor should be able to override the fee based on the legal aid regulations in just the same way that the Law Society of Scotland has argued that he should not be able to substitute his judgment in place of an agreement arrived at between solicitor and client. In agreeing to represent the client awarded legal aid, the solicitor accepts that payment for the services he provides will be made in accordance with, and at the rate prescribed in, the legal aid regulations.

This subsection is, therefore, simply applying to legal aid exactly the same treatment which, in response to Law Society representations, is being applied to fees agreed between the solicitor and the private client as the provision in subsection (1) of this clause prescribes.

Lord Morton of Shuna

I regret to say that I disagree, but I shall put my reasons briefly. This subsection is landing the job on the sheriff or the Court of Session judge rather than on the auditor because it states: It shall not be competent, in any litigation arising out of any dispute". Therefore, who is to deal with the litigation except the judge? The judge normally sends it to the auditor because he is the person who knows. He can assess better than the judge, because the amount of extra work involved in a legal aid case is his speciality.

I ask the noble and learned Lord to take away the amendment and think about it. If he can give an indication that he will do that, I shall have pleasure in withdrawing the amendment.

Lord Fraser of Carmyllie

I shall think about the amendment, but I also invite the noble and learned Lord to read what I had to say. I believe he will appreciate that there is not as much between us as he seems to think.

Lord Morton of Shuna

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Fraser of Carmyllie moved Amendment No. 275B: Page 31, line 40, after ("of) insert (" (a) ").

The noble and learned Lord said: The purpose of this amendment is to extend the provisions which Clause 27 (2) introduces covering disputes which arise between the Scottish Legal Aid Board and solicitors as to the level of fees payable to include similar disputes arising between the board and advocates. Under the amendment it shall not be competent in any litigation arising from a fee dispute for the court to remit the advocate's account to the auditor of court for taxation. This provision will ensure consistency throughout Scotland, placing disputes between the board and advocates on the same footing as those between the board and solicitors. I beg to move.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendments Nos. 275C and 275D.

Page 31, line 41, after ("solicitor") insert: ("or (b) any fees to be paid to an advocate, ").

Page 31, line 42, leave out ("solicitor's account for the fees or outlays") and insert ("account concerned").

On Question, amendments agreed to.

Clause 27, as amended, agreed to.

Clause 28 agreed to.

Lord Fraser of Carmyllie moved Amendment No. 275E: After Clause 28, insert the following new clause:

("Availability of legal aid in relation to services provided under this Act.

.After section 43 of the Legal Aid (Scotland) Act 1986 there shall be inserted the following section— 43A.— (1) Advice and assistance shall be available, in accordance with the provisions of this Act, in relation to the provision of confirmation and conveyancing services by confirmation practitioners and conveyancing practitioners, all within the meaning of section 19 (interpretation of sections 14 to 18) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 as they are so available in relation to the provision of the like services by solicitors. (2) Subject to any act of sederunt or act of adjournal made under subsection (10) of section 21 of that Act, advice and assistance, civil legal aid and criminal legal aid shall be available, in accordance with the provisions of this Act, in relation to the provision of services by persons who have acquired rights to conduct litigation or, as the case may be, rights of audience by virtue of that section as they are so available in relation to the provision of the like services by solicitors and, where appropriate, by advocates. (3) Where advice and assistance, civil legal aid or criminal legal aid has been made available by virtue of this section, the provisions of this Act shall apply in relation to the person providing those services as they apply in relation to a solicitor or advocate providing like services.".").

The noble and learned Lord said: I beg to move.

[Amendments Nos. 275EA, 275EB and 275EC, as amendments to Amendment No. 275E, not moved.]

The Earl of Selkirk

My noble and learned friend said that advice and assistance should be available. I referred to that at an earlier stage of our proceedings. Ease of access to where one can obtain assistance is extremely important. The suggestion is that it should be the licensed conveyancers or conveyancing practitioners. I do not see where that comes in. I do not suppose that there is anything that my noble and learned friend can do about it, but perhaps he can tell me where this advice can be most easily obtained. It is a cardinal point which until now has been omitted from the Bill.

Lord Fraser of Carmyllie

The purpose of these provisions is that legal aid advice and assistance are obviously available under the existing legal aid arrangements in Scotland if one wishes to obtain advice from solicitors. This provision is to permit— if there are to be confirmation and conveyancing services provided by confirmation and conveyancing practitioners— in the same way that, if advice and assistance are sought, they should be obtainable from them as well. It is a sensible extension of the broad provisions that we make for legal aid in Scotland.

The Earl of Selkirk

Is the advice to be given free, gratis and for nothing? I want to know because I am thinking of a person who has never been to a solicitor's office. He thinks it is a terrible place and that frightful people work there. He is frightened of going. I am not exaggerating. It is important to get some guidance.

Lord Fraser of Carmyllie

It is not a matter of whether he should get advice or assistance but who is going to pay for it. As I have said, under the legal aid provisions in Scotland at the moment there is some advice and assistance which will be paid for by the state under the legal aid Acts. We are proposing that, if comparable advice is sought from this new breed of practitioners, then in such circumstances and by way of an extension, legal aid should be available as regards those persons.

On Question, amendment agreed to.

Clause 29 agreed to.

Lord Fraser of Carmyllie moved Amendment No. 275F:

After Clause 29, insert the following new clause:

("Advisory and supervisory functions of the Director.—

(1) Before—

  1. (a) making any regulations under section 15 (5) or (9) of this Act; or
  2. (b) approving any rules—
    1. (i) made under section 16 (3) or 17 (9); or
    2. (ii) such as are mentioned in section 23 (1) or (1A), of this Act; or
    1201
  3. (c) considering any provisions of a draft scheme under section 22 (6) or (7) of this Act,
the Secretary of State shall first send a copy of the proposed regulations, rules or provisions to the Director.

(2) The Director shall consider whether any such regulations, rules or provisions as are mentioned in subsection (1) above would have, or would be likely to have, the effect of restricting, distorting or preventing competition to any significant extent.

(3) When the Director has completed his consideration he shall give such advice to the Secretary of State as he thinks fit.

(4) The Director may publish any advice given by him under subsection (3) above.

(5) The Director shall, so far as practicable, exclude from anything published under subsection (4) above any matter—

  1. (a) which relates to the affairs of a particular person; and
  2. (b) the publication of which would, or might in the Director's opinion, seriously and prejudicially affect the interests of that person.

(6) For the purposes of the law of defamation, the publication of any advice by the Director under this section shall be absolutely privileged.").

The noble and learned Lord said: During the passage of Part II of the Bill I have repeatedly made reference to the new clauses that begin with this amendment which relate to the powers of the Director General of Fair Trading. I beg to move.

The Earl of Selkirk

Are these words new or are they in the Act which set up the office of director general? On the other hand, are they a new statement of his tasks and duties?

Lord Fraser of Carmyllie

As the noble and learned Lord, Lord McCluskey, indicated, from the time when the Bill was first printed reference was made to the director general and what role he should take in giving advice to the Secretary of State. What we have in these new clauses is a far clearer and fuller explanation of where the director general would intervene; what his advisory and supervisory function should be; what his investigatory powers should be and what are his functions in relation to rules made under the 1980 Act. The noble and learned Lord, Lord McCluskey, has not always been entirely complimentary to this part of the Bill. He indicated that these provisions were an improvement and I believe that they are.

The Earl of Selkirk

I appreciate that, but are these words new or merely copies from the earlier Act?

Lord Fraser of Carmyllie

They are new powers in relation to what the Secretary of State will be doing.

The Earl of Balfour

Again, there is the use of the word "Director" without clearly indicating, as is done in other parts of the Bill, that he is the Director of Fair Trading. Perhaps between now and Report stage my noble friend will consider that matter. I have spoken about this matter in relation to an earlier clause.

Lord Fraser of Carmyllie

If my noble friend would care to look at Amendment No. 275J, he will find at page 33, line 3, that I shall be inserting, 'the Director" means the Director General of Fair Trading'.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 275G:

After Clause 29, insert the following new clause:

("Investigatory powers of the Director

(1) For the purpose of investigating any matter under section (Advisory and supervisory functions of the Director) of this Act, the Director may by notice in writing—

  1. (a) require any person to produce to him or to any person appointed by him for the purpose, at a time and place specified in the notice, any documents which are specified or described in the notice and which—
    1. (i) are in that person's custody or under that person's control; and
    2. (ii) relate to any matter relevant to the investigation; or
  2. (b) require any person carrying on any business to furnish to him (within such time and in such manner and form as the notice may specify) such information as may be specified or described in the notice.

(2) A person shall not be required under this section to produce any document or disclose any information which he would be entitled to refuse to produce or disclose on the grounds of confidentiality between a client and his professional legal adviser in any civil proceedings.

(3) Subsections (5) to (8) of section 85 of the Fair Trading Act 1973 shall apply in relation to a notice under this section as they apply in relation to a notice under subsection (1) of that section.").

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 275H:

After Clause 29, insert the following new clause:

("Functions of Director in relation to certain rules made under the 1980 Act

After section 64 of the 1980 Act there shall be inserted the following sections—

"Advisory and supervisory functions of the Director General of Fair Trading

64A.— (1) Before considering any rule—

  1. (a) made under section 25A (5) or (6); or
  2. (b) such as is mentioned in section 34 (3A),
the Secretary of State shall send a copy of the proposed rule in question to the Director.

(2) The Director shall consider whether the rule in question would have, or would be likely to have, the effect of restricting, distorting or preventing competition to any significant extent.

(3) When the Director has completed his consideration he shall give such advice to the Secretary of State as he thinks fit.

(4) The Director may publish any advice given by him under subsection (3).

(5) The Director shall, so far as practicable, exclude from anything published under subsection (4) any matter—

  1. (a) which relates to the affairs of a particular person; and
  2. (b) the publication of which would, or might in the Director's opinion, seriously and prejudicially affect the interests of that person.

(6) For the purposes of the law of defamation, the publication of any advice or report by the Director under this section shall be absolutely privileged.

Duty of Secretary of State

64B. When he has received advice under section 64A (3) in relation to a rule made under section 25A (5) or (6) or such as is mentioned in section 34 (3A), the Secretary of State may, having considered—

  1. (a) that advice;
  2. (b) whether the interests of justice require that there should be such a rule; and
    3. 1203
  3. (c) in relation to a rule made under section 25A (6), any relevant practice obtaining in the sheriff court,
approve or refuse to approve the rule.

Investigatory powers of the Director.

64C— (1) For the purpose of investigating any matter under section 64A, the Director may by notice in writing—

  1. (a) require any person to produce to him or to any person appointed by him for the purpose, at a time and place specified in the notice, any documents which are specified or described in the notice and which—
    1. (i) are in that person's custody or under that person's control; and
    2. (ii) relate to any matter relevant to the investigation; or
  2. (b) require any person carrying on any business to furnish to him (within such time and in such manner and form as the notice may specify) such information as may be specified or described in the notice.

(2) A person shall not be required under this section to produce any document or disclose any information which he would be entitled to refuse to produce or disclose on the grounds of confidentiality between a client and his professional legal adviser in any civil proceedings.

(3) Subsections (5) to (8) of section 85 of the Fair Trading Act 1973 shall apply to relation to a notice under this section as they apply in relation to a notice under subsection (1) of that section.".").

[Amendment No. 275HA, as an amendment to Amendment No. 275H, not moved.]

On Question, Amendment No. 275H agreed to.

Clause 30 [Interpretation of Part II]:

Lord Fraser of Carmyllie moved Amendment No. 275J:

Page 33, line 3, at end insert: (" "the Director" means the Director General of Fair Trading; ").

On Question, amendment agreed to.

Clause 30, as amended, agreed to.

9.45 p.m.

Lord Carmichael of Kelvingrove moved Amendment No. 275K:P

Before Clause 31, insert the following new clause:

("Application for off-sale licence

.— (1) In subsection (2) of section 10 of the Licensing (Scotland) Act 1976 (in this Part of this Act referred to as "the principal Act") the words "Paragraph (a) of this subsection shall not apply to an application for the grant of an off-sale licence." shall cease to have effect.

(2) In subsection (1) of section 36 of that Act the words "(other than off-sale premises) "shall cease to have effect.").

The noble Lord said: We now come to a part of the Bill which, from a purely legal point of view, is less technical. We have all been involved in the question of licensing and licensed premises. The purpose of the amendment is to give licensing boards the same power in respect of the structure of and structural alterations to off-sale premises as they already have in the case of ordinary licensed premises. The control of the structure of off-sale premises will enable licensing boards to ensure that the layout is conducive to the prevention of the sale of alcohol by or to persons under the age of 18 years. There is no attempt on my part or on the part of the supporters of the amendment to try to inhibit commerce, but there is a feeling that in some cases the premises are almost inadequate for the purpose. When a public house or hotel bar is inspected there should also be power to look at the physical layout of the off-licence. I beg to move.

Lord Fraser of Carmyllie

This amendment would require the applicant for a new off-sale licence or for the renewal of such a licence to lodge a plan with the clerk of the licensing board. This is similar to the existing provisions relating to public house and hotel licences. The present provisions have operated since the Licensing (Scotland) Act 1959 came into operation. I am not aware that the exclusion of off sale premises has created any problems for licensing boards. If the amendment were carried it would place an additional burden on small businesses at a time when the Government are anxious to reduce controls.

If we accept the case for requiring plans to be lodged in the case of public houses and hotels where members of the public spend a considerable period of their leisure time and where alcohol is consumed on the premises, it is right that the boards should have the opportunity to consider the proposed layout in some detail and to consider the public area and safety implications of it. While I understand the noble Lord's interest in the matter, we do not see that there is the same justification in the case of off-sales licences where the customer buys his drink and, by definition, leaves. In the light of what I have said, I hope that he will consider withdrawing the amendment.

Lord Carmichael of Kelvingrove

I am disappointed that the Minister has not offered at least to take away the amendment to consider it. I do not know what extra burden would be placed on the licensing authority. I am sure that licensing authorities receive information about premises from chief constables and others in the district. I know of a number of off-licences— I am sure that there must be many even in the east of Scotland— which are inadequate for the purpose. They are sometimes run by families and quite frequently young people may be selling at the counter. There should be some control. I shall withdraw the amendment but I may bring it back at Report stage after taking more advice. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 31 [Permitted hours]:

Lord Carmichael of Kelvingrove moved Amendment No. 276: Page 33, line 20 at end insert ("in the afternoon").

The noble Lord said: This amendment was put down by the noble Lord, Lord Campbell of Croy. I added my name to it because he was unable to be here for reasons which we all understand and he asked me to do so. Put simply, the present position is that public houses are allowed to open on Sunday but they must close at 2.30 p.m. That means that they are allowed to open between 12.30 and 2.30 p.m. They are then allowed to reopen at 6.30 p.m. The Bill suggests that the permitted hours for hotels, registered clubs, entertainment establishments and even for off-licences should be such that they can open for the entire afternoon— that is, from 12.30 to 11 p.m.— if they wish to do so.

The general feeling is that that provision would be rather unfair for public houses. The amendment simply requests a fair and equal right for all sections of the licensed trade. We hope when the Bill has finished its parliamentary process that it will be seen to be fair and equitable to all concerned. I beg to move.

Viscount Brentford

I oppose the amendment because I believe that the Government have the timing right in this respect. I support the Government. From the information I have received from north of the Border, I understand the number of alcoholic disturbances is increasing. In my view we should restrict the hours to those set out in the Bill.

Lord Fraser of Carmyllie

I am grateful to my noble friend for his support. The amendments seek to allow Sunday opening of public houses and licensed clubs between the hours of 12.30 and 11 p.m. The original purpose of Parliament in enacting Section 64 (4) of the Licensing (Scotland) Act 1976, which prohibits Sunday afternoon opening, was to prevent all-day bar drinking on Sundays, particularly when this was unrelated to the service of meals. The consultative review of the 1976 Act sought to ascertain the views of all those who would be affected by possible changes to the existing licensing laws and the responses showed that a clear majority of respondents were opposed to any extension on Sunday of permitted hours for public houses.

Following that consultation, the Government have accepted this view and we would be reluctant to allow the interests of the licensed trade to take precedence over that clearly expressed majority view that Sunday afternoon peace and quite might be put at risk, particularly in urban areas where many public houses are situated in residential areas. The clause is drafted accordingly.

The matter is not one which arises from an oversight; it is a clear policy view which bears in mind the majority expression of opinion in Scotland following on from the consultation. In the light of that explanation, I hope that the noble Lord will feel able to withdraw his amendment.

The Earl of Balfour

Before the amendment is withdrawn I should like to ask a question. Subsection (2) of new Section 53 states, Nothing in this section shall authorise the sale or supply of alcoholic liquor for consumption off the premises". Although I wholeheartedly support the restricting of licences, under the heading of clubs— I think that the legislation is most necessary— I should like to raise one point. Many clubs rely upon making money from running raffles. Will someone be breaking the law if having won a raffle he walks out of the building with a bottle of whisky under his arm? That is an important point as regards clubs. That is my only query in respect of this part of the Bill. Apart from that one aspect, I think that the legislation in regard to the next few clauses has improved the situation considerably.

Lord Macaulay of Bragar

So far as concerns this particular amendment and whether one approves of Sunday drinking, the question is one of equity. The licensed trade feels that it is being badly done by. The refusal even to consider an adjustment of the figure means that the reality of life which we have been discussing in relation to other clauses in the Bill is ignored. It may cause greater social disruption to have people being put out of the public houses at half-past two, making their way to the nearest supermarket, buying drink and sitting around the place drinking out of lager cans. It is much more civilised that if people want a drink they can sit in the pub for as long as they like, just as they could in a place of entertainment. There is such a proliferation of places dealing in alcohol now that the licensed trade association— for which I hold no brief— has suggested the amendment for the Government's consideration. It feels badly done by at this exclusion from the general provision on the Sabbath.

Lord Lucas of Chilworth

Since this matter impinges on later amendments, I feel bound to support the noble Lords, Lord Carmichael and Lord Macaulay, on the opposite Benches. I can well understand the objection of my noble friend Lord Brentford in principle. However, we are not talking now about the principle, but about the equity. It seems rather pointless that one should set down in law the inability of a person to buy liquor in one place whereas if he crosses the street he may buy it freely. This seems to me basically wrong. It holds no great substance. The major objection to drinking on Sunday has already been dealt with in the provisions that exist in Scotland.

I feel that my noble and learned friend the Lord Advocate ought to look at the matter not on the basis of surveys— he has singularly not distinguished the exact surveys to which he refers— but on the sheer basis of equity as between one tradesman and another.

Lord Carmichael of Kelvingrove

Perhaps I may make a point to the noble and learned Lord the Lord Advocate. He mentioned the increase in drunkenness and the cause suggested by the surveys. However, what was the breakdown? I have seen figures in some surveys about which I was not happy. How do we know when someone is bouncing around the street? Incidentally, I am not sure whether access to alcohol because of the outlets has caused the increase in drunkenness which is reported or whether, as many experts believe, it is caused by the price being lower than before. Most people concerned about alcoholism are convinced that price has more to do with it than the availability of the outlets.

I agree with my noble friend Lord Macaulay and also the noble Lord, Lord Lucas of Chilworth, about the ways of getting drink. The larger can is probably the most objectionable way of drinking alcohol. If the Minister will not take the amendment away I shall withdraw it, but we would wish to come back with it in some form later.

Amendment, by leave, withdrawn.

[Amendment No. 277 not moved.]

Lord Fraser of Carmyllie moved Amendment No. 277A: Page 33, line 29, leave out ("II") and insert ("III").

The noble and learned Lord said: Amendments Nos. 277A and 281A are straightforward drafting amendments which seek to rectify minor errors which appeared in the introductory print of the Bill. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 277B and 277C not moved.]

10 p.m.

Lord Lucas of Chilworth moved Amendment No. 273: Page 34, line 11, leave out ("in the case of days other than Sundays,').

The noble Lord said: I do not propose to go too far with Amendments Nos. 278 and 279 in the light of Amendment No. 277C having been withdrawn by the noble Lords, Lord Macaulay and Lord Carmichael. Their amendment and mine seek some indication from my noble and learned friend the Lord Advocate as to the circumstances in which he feels that it is undesirable for the consumption of liquor bought from off-licences to be allowed. I stress the word "allowed" as distinct from "mandatory" as regards the sale of liquor throughout normal trading hours.

It seems to me that the licensing authority in Scotland should be allowed to accept from an existing licence holder an extension to his licence to sell liquor on Sundays. If that were the case and existing licence holders could extend their licences, it would be for the licensing authority to either accept such applications or even to accept applications with certain conditions. I understand that in certain areas in Scotland particular arrangements apply. Alternatively, the licensing authority could refuse an application. My amendment seeks to allow the licensing authority to consider an application by an existing holder to trade on Sunday. I should be grateful therefore if my noble and learned friend could give me a reason why that should not be allowed, I beg to move.

Viscount Brentford

I believe the noble Lord is also speaking to Amendment No. 279A.

Lord Lucas of Chilworth

If my noble friend will excuse me, I should say that I did not wish to consider Amendment No. 279A along with this amendment. I believe that is my right and that it would be proper for the Committee to deal with the matters raised in those two amendments separately and treat each of them on their merits.

Viscount Brentford

I must register the fact that because of the amendment that my noble friend Lord Selkirk and I have tabled I am against Amendment No. 278, even if it is being treated separately, for the reasons that I would prefer to discuss more fully when we come to Amendment No. 279A.

The Earl of Selkirk

Some people think that Sunday does not matter at all but others disagree. I believe that it is important that Sunday should be different to the rest of the week. To allow for licensing arrangements to be the same every day of the week would be quite wrong. However, I have other reasons for stating that. If public houses are open at lunchtime on Sundays, families are less likely to have Sunday luncheon together. It is extremely important that families should have that meal together. We should encourage them to have lunch together on at least one day of the week. That is of considerable significance in itself.

Further, the police complain that over the weekend, particularly on Sunday evenings, there can be trouble and difficulty. They do not like to think that every day of the week should be the same and that they will have the same trouble in the week as occurs at the weekend. This amendment is identical, except as regards time, with Amendment No. 277 standing in the name of the noble Lord, Lord Campbell. I believe this amendment represents a sensible arrangement. I certainly would not have invented it myself. It is a recommendation that has come to me from Scotland.

Lord Fraser of Carmyllie

I understand that my noble friend Lord Lucas wishes to deal with his Amendment No. 278 separately. However, throughout the amendments that we must consider to every clause the difficulty is that in Scotland there are people who hold deeply the view that there should be no relaxation of licensing provisions there on the Sabbath. I suspect that the same is true south of the Border. In a clear and equitable fashion the simplest approach would be to make Sunday the same as every other day of the week and to allow all opening hours on the Sabbath to be exactly the same as those from Monday to Saturday.

However, as we have picked our way through the provisions for Sunday, we have sought to allow for some change and relaxation while in another amendment responding to the views put forward by my noble friends Lord Brentford and Lord Selkirk. Their points of view are strongly held in Scotland. We can always be criticised for an inconsistency or an awkward attempt at balance. However, while I recognise that the setting of opening hours for off-licences at 12.30 p.m. may create problems for retail outlets, which legitimately open earlier, we must balance that convenience to a proportion of their customers who hold views such as those held by my noble friends Lord Brentford and Lord Selkirk.

I believe that we have done our best to strike the correct balance by aligning off-scale opening hours on Sunday with those of pubs and hotels. I hope that with that explanation Members of the Committee will understand why we have adopted the arrangements.

Lord Carmichael of Kelvingrove

The noble and learned Lord the Lord Advocate said that he had aligned the opening hours of off-licences with those of pubs and hotels. If he has I shall be delighted, but I do not believe that he meant to say that. Secondly, I do not see how the provision would affect the view held by the noble Earl, Lord Selkirk, because people could obtain goods from the off-licence and go home for lunch together.

Will the noble and learned Lord clarify the position? Will only public houses be closed? I am sure that he said that they would all be brought into line and open on Sunday afternoons.

Lord Fraser of Carmyllie

That was what I said.

Lord Lucas of Chilworth

I do not wish to tread on the sensibilities of any Scots people, particularly those of my noble and learned friends, but let us be practical. The Scottish law allows trading in fulsome terms on Sundays. Therefore it is not unreasonable to suppose that many families do their weekly and leisure shopping on Sundays. Indeed, such evidence has been put before me. It is ridiculous that on Sundays families should be deprived of buying one particular item that is in their normal household expenditure; namely, liquor. It is perhaps anomalous to suggest that they can buy that product at a different place and at a different time.

This clause deals essentially with consumer matters. The Scottish Consumer Council, among others, has welcomed the amendment, which stands in my name and that of my noble friend Lord Jenkin of Roding, to the effect that there should be permission for off-licences to sell alcohol on Sunday. The anomaly is that other licensed premises, such as hotels and pubs, have been allowed to sell alcohol since 1976 whereas off-licences in supermarkets and other stores cannot do so. I hope that the Committee will not accuse me of being too harsh if I suggest to my noble and learned friend the Lord Advocate that there is an element of hypocrisy here. A certain section of the licensed trade can sell; another cannot. There is no logic in that. I invite my noble and learned friend to think about the logic of my amendment.

Lord Fraser of Carmyllie

I do not think that I can expand upon the amendment. I certainly understand the logic of it. It is clean and tidy. If those people who run retail outlets, for example, with off-sale premises within them, were to be enabled to open earlier than 12.30 p.m., it would clearly be logical and helpful to them and to a proportion of their customers. However, my noble friend will appreciate that others, whose views have already been expressed and are expressed in a subsequent amendment, take a diametrically opposed view to his. There is no absolute answer to the problem. We have achieved as best we can a balance between those conflicting interests.

Lord Lucas of Chilworth

I am grateful to my noble and learned friend for his further explanation. The balance does not appear to be tipped in my favour. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 279 not moved]

Viscount Brentford moved Amendment No. 279A: Page 34, line 13, leave out ("half past twelve o'clock in the afternoon and ten o'clock") and insert ("three o'clock in the afternoon and seven o'clock").

The noble Viscount said: My noble friend Lord Selkirk has already spoken to the amendment. I should like to underline one or two points that he has made. I am not sure whether my noble and learned friend the Lord Advocate covered all the points arising from the amendment, although he has partially expressed his views.

The 12.15 p.m. or 12.30 p.m. opening time is important from the point of view of the staff of off-licences. It cuts into the one opportunity for the family get-together at lunch on a Sunday, as my noble friend rightly pointed out, and it prevents staff going to church on a Sunday. I understand from the Church of Scotland that services normally finish about 12.15 p.m. Obviously, people would not be able to reach their off-licences in time to open at half past twelve. That therefore causes hardship for workers in off-licences.

The more restricted opening hours will provide ample time for people to make their purchases along the lines suggested by my noble friend Lord Lucas. They will also help to curb the lager can problem about which the noble Lord, Lord Carmichael, is so worried. Therefore I believe that this amendment meets the anxieties of quite a number of those who have spoken in Committee in regard to the past two amendments.

The evening hours restriction would have the effect of curtailing a certain amount of alcohol purchasing and consumption with the accordingly decreased incidence of alcohol abuse that sadly is increasing north of the Border as it is south of the Border. I am informed by the Church of Scotland that the desire of communities in Scotland is to try to make weekends and evenings safer from the abuse of alcohol. That is why I believe that this amendment is positive and constructive and should be considered.

10.15 p.m.

Lord Fraser of Carmyllie

This is the point at which the crossfire in which I indicated that I was caught reveals itself. On the one hand my noble friend Lord Lucas thinks that I am being far too restrictive; from the other side I am being implored to impose yet further restriction. I can only repeat that I do not think that we shall attain a perfect balance in this matter.

However, I would have hoped that ensuring that premises should not open before 12.30 would allow the greater part, if not the entirety, of the morning to be free for families. Also, the time that such premises are open in the evening will enable those who work in them to get home to their families. I am not sure that I shall wholly satisfy my noble friend any more than I was earlier able to satisfy my noble friend Lord Lucas.

Viscount Brentford

In view of those remarks and in consideration of the hour, I beg leave to withdraw the amendment but I shall certainly reconsider it for a later stage.

Amendment, by leave, withdrawn.

Clause 31, as amended, agreed to.

Lord Carmichael of Kelvingrove moved Amendment No. 280:

After Clause 31, insert the following new clause:

("Objections in relation to applications

.In section 16 (1) (a) of the principal Act (objections in relation to applications) after "any organisation" there shall be inserted "or licensed trade association".").

The noble Lord said: The object of this amendment is to add a new clause that amends Section 16 (l) (a) of the principal Act so that objections should be possible for local licensed trade associations and not merely for the national associations. The belief— and I concur with it— is that frequently the people who know best about what is happening locally are the local licensees. Any person who owns or occupies property situated in the neighbourhood of the premises to which the application relates or any organisation which in the opinion of the board represents such a person should have some rights in deciding or putting forward a point of view at least on the question of whether a licence should be granted. I beg to move.

Lord Fraser of Carmyllie

This amendment seeks to include specifically within the list of competent objectors the licensed trade association. Licensing boards already consider objections from licensees in the neighbourhood of the premises to which the application before them relates. Accordingly a licensed trade association, which by definition would represent local licensees, is already covered by the provision.

While I believe that it is right that such associations should appear and make their objections, I invite the Committee to reject the amendment because I believe that there is no need for it. I should be grateful if we could consider this matter outwith this Chamber. I have a suspicion that those who prompted the noble Lord to consider it, or prompted my noble friend Lord Campbell of Croy to table the amendment, may have encountered difficulties in some parts of Scotland with licensed associations being given a right to be heard before licensing boards. If that is the case I should be interested to hear from the noble Lord.

Certainly, as matters stand at the moment, I invite him to withdraw the amendment because I see it as unnecessary and not because I am opposed to it.

Lord Carmichael of Kelvingrove

I am most grateful to the noble and learned Lord the Lord Advocate. I am informed that some licensing boards accept the local licensed trade association as a competent objector while others do not. Part of the purpose of the amendment was to achieve uniformity or clarity. I shall be only too pleased to discuss the matter with the noble and learned Lord. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 281 not moved.]

Clause 32 [Sunday opening of licensed premises]:

Lord Carmichael of Kelvingrove moved Amendment No. 281ZA:

Page 34, line 31 at end insert: (" (1A) Where a public house licence or a refreshment licence does not permit the sale or supply of alcholic liquor during the permitted hours on Sunday the holder of the licence may apply to the licensing board for the licence to be extended so as to permit such sale and supply. (1B) In section 5 (2) (h) of the principal Act for the words from "other" to "where" there shall be substituted "or an application under section 32 (1a) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 unless".").

The noble Lord said: The amendment provides that, where a public house licence or a refreshment licence does not permit the sale or supply of alcoholic liquor during the permitted hours on Sunday the holder of the licence may apply to the licensing board for the licence to be extended so as to permit such sale and supply".

The clause is concerned with the right of appeal and the right of the licence holder to apply to the board for permission. It is grouped with Amendments Nos. 281ZA to 281ZE. We are providing for equalisation of the opening hours for licensed canteens, registered clubs and public houses, and for the sale of alcohol for consumption off the premises. We believe that that is a special category. As such it warrants special provision in relation to Sunday.

I need to have more information. There seems to be some mix-up. I see that the noble and learned Lord the Lord Advocate wishes to intervene. Perhaps he knows the point that is to be made. I beg to move.

Lord Fraser of Carmyllie

Clause 32 deals with new provisions relating to the new Sunday opening hours for public houses and refreshment houses which are not presently opened on a Sunday. The clause removes the need for separate application to be made by licensees in respect of Sunday opening. The 1976 Act at present requires a special application to be made for Sunday opening of public houses or refreshment houses in accordance with procedures set out in Schedule 4. Separate applications are not required in respect of Sunday opening of hotels or restaurants. The clause allows application for the grant or renewal of a public or refreshment licence to include Sunday opening but provides a safeguard that licensing boards may refuse Sunday opening where they consider it would cause undue disturbance or public nuisance in the locality. While it is our intention to streamline the application procedures, we do not wish applicants to be in the position where, contrary to the present situation, they may not be able to apply for a Sunday opening licence after they have been granted a licence for opening on Monday to Saturday.

In the light of these interesting amendments that the noble Lord has moved, we propose to reconsider the terms of the Bill as drafted on this issue. On that basis, I should be grateful if noble Lords withdrew their amendments.

Lord Carmichael of Kelvingrove

There was an error in the material that I had. However, I am very pleased with the response of the Minister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 281ZB to 281ZE not moved.]

Lord Fraser of Carmyllie moved Amendment No. 281A: Page 35, line 26, leave out ("entertainment") and insert ("refreshment").

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

On Question, amendment agreed to.

[Amendment No. 281AA not moved.]

Clause 32, as amended, agreed to.

[Amendment No. 281AB not moved.]

Clause 33 [Regular extensions of permitted hours]:

[Amendment No. 281AC not moved.]

Clause 33 agreed to.

Clause 34 [Restriction orders]:

The Earl of Selkirk moved Amendment No. 281B: Page 36, line 28, after ("is") insert ("has been or threatens to become").

The noble Earl said: This is rather complicated because Amendments Nos. 281B, 281C, 281D and 281E are all one amendment dealing with a single point. The point is that when there are occasions in which the peace and quiet of an area has been disturbed or when there has been a nuisance of a general character, provision is made for this and it is handed over entirely to the licensing board. The licensing board can take evidence if it wishes, but the crux of this is that it can then come to a decision in regard to the nuisance that has been caused and there will be no appeal to the sheriff. That is quite a step forward and it puts the responsibility squarely on the board, which is where I think it should be. It is in those terms that I beg to move the amendment.

Viscount Brentford

I support the amendment and back my noble friend Lord Selkirk, who has given the general picture so clearly.

The purpose of Amendment No. 281B of the three in this grouping is to widen very slightly the powers of the licensing board. It is feared that if the word "is" stands there alone there would have to be an actual disturbance before the provision could be invoked. If it is extended to "has been" in the past or "threatens to become" in the future the licensing board can respond more readily to any public concern about any undue disturbance or nuisance regarding the way of life in a locality on a Sunday.

I believe that the amendment would enable the licensing board to take account of recent incidents or those of genuine community concern. As I have said before, it is relevant to the feelings and views expressed in the community, which are very important in Scotland, where my wife is at the moment although I am down here.

The purpose of Amendment No. 281C is to make final the decision of the elected representatives in the licensing board on questions of fact, so that there is not an appeal to the sheriff. The sheriff should deal with appeals on questions of law but not on questions of fact, again because it is thought that the elected democratic representatives are in a better position to assess questions of fact than the sheriff. But obviously an appeal on a question of law should remain to the sheriff as at present. These are socially important matters to the community which should be considered by the elected representatives.

Amendment No. 281D should simply enable the board to respond more quickly and decisively by inserting the words "at any time" into the clause. I support these three amendments.

10.30 p.m.

Lord Fraser of Carmyllie

Clause 34 as presently drafted provides for restriction orders in respect of afternoon and Sunday opening now included in the new permitted hours. Amendment No. 281B would enable the board to consider not only present public nuisance considerations but also past or future considerations. This goes beyond the intention of the present clause, which simply adds afternoons and Sundays to the restriction order provisions.

We are not aware that the terms of the existing provisions have given rise to significant difficulty in enabling a board to reach a sensible judgment as to whether a restriction order is appropriate. Amendments Nos. 281C and 281D remove the right of appeals from a licensee who has had a restriction order placed on his premises. As restriction orders in effect reduce the permitted hours laid down in statute and may accordingly significantly affect the livelihood of licensees, it would be unjustified to deny them (and incidentally the competent objector who made the complaint) the right of appeal in this case. I invite the Committee to reject these amendments.

More generally, of course restriction order provisions are important. I entirely agree with what my noble friend Lord Brentford said about the desirability of allowing for such considerations in certain circumstances for good substantial social reasons. However, I consider that the existing provisions and their extension by Clause 34 allow for the proper consideration of all matters without the introduction, which he would like, of past or future considerations.

The Earl of Selkirk

At this time of night I shall not press my noble and learned friend. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 281C to 281E not moved.]

Clause 34 agreed to.

Lord Fraser of Carmyllie moved Amendment No. 281F:

After Clause 34, insert the following new clause:

("Children's certificates

.—(1) Where an application is made for the grant, provisional grant or renewal of a public house licence or an hotel licence in respect of any premises the applicant may request the licensing board to grant a children's certificate in respect of the premises or such part or parts of the premises as are specified for the purpose of the request in the application.

(2) A licensing board may grant a certificate (in this section referred to as a "children's certificate") in respect of any premises, or, as the case may be, part or parts of any premises if it is satisfied—

  1. (a) that the premises or, as the case may be, the part or parts of the premises constitute an environment in which it is suitable for children to be present; and
  2. (b) that there will be available for sale or supply for consumption in the part of the premises in respect of which the certificate is to apply meals and beverages other than alcoholic liquor within the meaning of the principal Act.

(3) Where a children's certificate is in force in respect of any part of any premises, notwithstanding section 69 of the principal Act, and, subject to the provisions of this section, it shall be lawful for a person under 14 years of age accompanied by a person of not less than 18 years of age to be present in such part at any time when the premises are open to the public between eleven in the morning and eight in the evening for the purpose of the consumption of a meal sold supplied on the premises.

(4) When granting a children's certificate, the licensing board may attach such conditions to the grant of the certificate, including conditions restricting the hours during which and days on which children may be present in any premises or part of premises to which the certificate relates, as appear to the board to be appropriate.

(5) There shall be displayed at all times in any premises or part of such premises to which a children's certificate applies a notice of the fact that a children's certificate has been granted in respect of such premises or part.

(6) Any person who is the holder of a licence in respect of any premises to which or part of which a children's certificate applies or any employee or agent of such a person who contravenes this section or any condition attached to a children's certificate shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(7) The following provisions of the principal Act shall apply as regards an offence under subsection (6) above—

  1. (a) subsections (2) and (3) of section 67, as if an entry relating to that offence appeared respectively in columns 3 and 4 of Schedule 5 to that Act; and
  2. (b) section 71.

(8) Schedule 3A to this Act shall have effect as regards the procedure to be followed for the purposes of an application for a children's certificate.

(9) A children's certificate shall be valid—

  1. (a) where it is granted at the same time as the grant, provisional grant or renewal of a licence, for the period of the licence;
  2. (b) where it is granted at any other time, until the end of the period for which the licence to which it relates has effect in pursuance of section 30 of the principal Act.

(10) Where a licence is transferred in pursuance of section 25 of the principal Act, any children's certificate in respect of the premises or any part of the premises to which the licence relates shall be transferred to the new licence holder subject to the same conditions as were applied to the original grant of the certificate.").

The noble and learned Lord said: The effect of this amendment and Amendment No. 281G is to insert two new clauses, the first providing for the grant of children's certificates by licensing boards, subject to certain clearly defined conditions (Clause 34A), and the second providing for the suspension of children's certificates by boards. The new schedule sets out the detailed procedure to be followed for the purpose of an application for a certificate.

On 19th May 1989 the Government announced that as part of a series of reforms of Scottish liquor licensing law children's certificates would be introduced to allow children under 14 to join their parents for a pub meal. Certificates would be granted by licensing boards in respect of licensed premises— that is, public houses and hotels— which in their view represented a suitable environment for children. I announced on Second Reading on 30th January that we would be introducing this provision by way of a government amendment.

Clause 34A allows a licensing board to grant children's certificates in respect of premises which it considers constitute a suitable environment for children. The sole criterion is the suitability of the premises for children, since all other grounds for refusal under Section 17 of the 1976 Act will have been considered by the board in the context of the licence application itself. No provision is made for applicants to appeal against the refusal of a certificate because, as with applications for regular or occasional extensions of permitted hours, we consider that boards are best placed to judge applications in the light of their detailed knowledge of local circumstances.

Those provisions are extensive but I trust that the proposed amendments will be welcomed. They are the product of detailed consultation with the licensed trade, law enforcement bodies, a wide range of other interests and the Scottish public at large. I beg to move.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 281G:

After Clause 34, insert the following new clause:

("Suspension of children's certificate

.— (1) Where a licensing board considers that the premises or part of the premises to which a children's certificate relates no longer constitute an environment in which it is suitable for children to be present they shall decide whether or not to hold a hearing for the purpose of determining whether to suspend the certificate.

(2) Where the licensing board decides to hold a hearing as mentioned in subsection (1) above—

  1. (a) the clerk of the board shall serve on the holder of the children's certificate, not less than 21 days before the hearing, a notice that the board proposes to hold a hearing, specifying the grounds upon which suspension of the certificate may be made;
  2. (b) the clerk of the board shall give notice of the hearing to the chief constable;
  3. (c) the chief constable may, not less than 7 days before the hearing, lodge notice with the clerk of the board that he wishes to be heard in support of suspension of the children's certificate specifying the grounds on which he seeks such suspension, and any such notice shall be intimated by the chief constable to the holder of the licence;
  4. (d) the board shall not order suspension of a children's certificate without hearing the holder thereof unless, after receiving due notice of the hearing, the holder fails to appear.

(3) The period of the suspension of a children's certificate under this section shall be a fixed period not exceeding one year or the unexpired portion of the duration of the certificate, whichever is the less, and the effect of the suspension is that the certificate shall cease to have effect during the period of the suspension.

(4) Where

  1. (a) a children's certificate has been suspended under this section, or further suspended under this subsection; and
  2. (b) it appears to the licensing board that the grounds upon which the suspension or further suspension was made continue to obtain,
the licensing board may, not more than one month before the expiry of the period of the suspension or, as the case may be, further suspension, determine that the suspension shall be continued for a further period of one year, and this section shall have effect as regards any such further suspension as it has for the purposes of an initial suspension.").

On Question, amendment agreed to.

Clause 35 [Transfer of licences]:

[Amendments Nos. 281H and 281J not moved.]

Lord Carmichael of Kelvingrove moved Amendment No. 281K:

Page 37, leave out lines 31 to 36 and insert: (" (4C) If a licensing board refuses to transfer a licence under this section the person to whom the licence has not been transferred may appeal to the Sheriff against that refusal and the licence shall have effect until the time within which an appeal may be made has elapsed or if an appeal has been lodged until the appeal has been abandoned or determined.) -

The noble Lord said: This amendment concerns the transfer of a licence. There is a great deal of uncertainty and unfairness in the transfer of licences and the uncertainty can frequently mean that someone's livelihood is at stake. We shall be bringing back a whole number of points at Report stage dealing with the question of whether the licensing board is always as efficient as it could be. I beg to move.

Lord Fraser of Carmyllie

I am bound to say that I have some difficulty in knowing how to respond to the noble Lord regarding this particular amendment, given that I understood it to be coupled with other amendments which he has not moved.

Lord Carmichael of Kelvingrove

The clause, as framed by the Government, does not take account of the purchasing of licensed premises. When the transaction is settled the purchaser acquires from the sale the title of the premises. Until that has gone through a licensing court, although he has the title to the premises it does not necessarily mean that he has the title to the licence. It is of little value merely to own the premises and not the licence.

Effectively the government proposals could mean that when premises are owned by a person whose licence has been transferred, the licence could subsequently be unconfirmed. That would be inimical to the efficient and cost-effective operation of the existing scheme of purchase and sale of licensed premises. Does that explain the position perhaps more clearly to the noble and learned Lord the Lord Advocate?

Lord Fraser of Carmyllie

No, it does not. Perhaps I might consider what the noble Lord has said. I do not understand what he is moving in the context of that group of amendments, but I will consider the matter. If it is something that we need to sort out at Report stage, we can do so, but I think I would be wasting time to try and unravel where this particular provision lies in relation to the others.

Lord Carmichael of Kelvingrove

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 35 agreed to.

Lord Carmichael of Kelvingrove moved Amendment No. 282:

After Clause 35, insert the following new clause:

("Right of appeal to Sheriff . In section 17 of the principal Act (grounds for refusal of application), in subsection (4), after "permanent transfer of a licence" there shall be inserted "or for the grant of a regular or occasional extension".").

The noble Lord said: This amendment refers to the fact that if a licence is refused by a licensing court there should be a right of appeal to the sheriff. Amendments Nos. 281 and 282 are too important not to have some right of appeal. I beg to move.

Lord Fraser of Carmyllie

The proposal is that there should be a right of appeal to the sheriff. In our view these are judgments which the boards are best placed to make on the basis of their detailed local knowledge. The same applies, if anything with more force, in the case of occasional extensions.

The considerations involved in such decisions are not appropriate to the appellate function of the courts and the consultative exercise which we undertook revealed that a clear majority was opposed to the introduction of a right of appeal. With that brief explanation I hope that the noble Lord will feel able to withdraw his amendment.

Lord Carmichael of Kelvingrove

The Lord Advocate suggests that there has been wide consultation. I am not particularly close to the licensed trade but the general feeling I have is that there is unfairness in having no appeal. However, I shall read what the Minister said and perhaps discuss the matter with him and come back later. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 36 [Observations by chief constable in relation to applications]:

Lord Macaulay of Bragar moved Amendment No. 282ZA: Page 38, line 8, leave out ("the chief constable") and insert ("a relevant authority").

The noble Lord said: It may be for the convenience of the Committee if we discuss also Amendments Nos. 282ZB, 282ZC, 282ZD, 282ZE, 282ZF and 282ZG. These amendments relate to Section 16 of the Licensing (Scotland) Act 1976.

The amendments delete the words "chief constable" in the Bill and in their place insert the relevant islands or district authority. This is an attempt to obtain a broader basis of objection to be considered by the board rather than what might be taken as the narrower view of the chief constable who would perhaps not take the broader standpoint of the local authority. I beg to move.

Lord Fraser of Carmyllie

The chief constable is in a unique position in that in terms of Section 17 (l) (c) of the 1976 Act the licensing board is required to refuse an application if undue public nuisance or a threat to public order and safety is likely to be caused. The chief constable has a professional interest and duty in relation to consideration of such issues and we consider that he should be enabled to make observations on any application where he considers this appropriate.

The interests of other authorities, while important— and I stress that to the noble Lord— do not necessarily require the same consideration in the case of every application. The district and islands councils' and fire authorities interests are, in any event, taken into account in paragraph 4 of Schedule 5 to the Bill, which adds the local authority and the fire authority to the list of competent objectors. Against this background, I see no need for Clause 36 to be widened in the way proposed, though I stress again that it is not that the interests of these other authorities should be ignored. They are dealt with otherwise.

Lord Macaulay of Bragar

I am grateful for that answer. It would appear that the greater includes the lesser as far as the authorities are concerned. In the light of the answer I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 282ZB to 282ZG not moved.]

Clause 36 agreed to.

10.45 p.m.

Clause 37 [Supervision of sales of liquor in off-sale premises by persons 18 or over]:

[Amendment No. 282A had been withdrawn from the Marshalled List.]

[Amendment No. 282B not moved.]

The Deputy Chairman of Committees (Lord Airedale)

If Amendment No. 283 is agreed to, I cannot call Amendment No. 284A.

Lord Lucas of Chilworth moved Amendment No. 283:

Page 39, leave out lines 17 to 28 and insert— ("shall not cause or permit a person under eighteen to make any sale of alcoholic liquor unless the sale has been specifically approved by the holder of the licence or by a person of or over the age of eighteen acting on his behalf. (2) A person guilty of an offence under this section shall be liable to a fine, as set out in Schedule 5.").

The noble Lord said: In moving this amendment, which stands in my name and that of my noble friend Lord Jenkin of Roding, I shall speak also to Amendment No. 285, which is consequential upon Amendment No. 283.

We are now moving into the area of the supervision of the sale of liquor in off-sale premises. On behalf of my noble friend Lord Jenkin and the noble Viscount Lord Falkland, I thank my noble and learned friend the Lord Advocate for the opportunity of discussing with him and his honourable friend the Minister at the Scottish Office the matters contained in this amendment.

I do not normally apologise to the Committee, but this is a matter of some import. If I take a little longer than your Lordships might like at this time of night, I apologise. As the Bill is currently drafted, Clause 37 would make it an offence for any outlet with three or more points of sale to allow a person under.8 to sell alcohol. However, smaller shops with fewer than three points of sale will still be allowed to have alcohol sold by persons under 18 provided that each sale is authorised.

My particular interest is a general one in retailing. It is important to appreciate that we are talking about a divisive piece of legislation. The divisiveness affects a handful— about eight or nine companies— the bulk of which are registered in England. As far as I am aware, only two are registered in Scotland. I am talking about English-registered companies trading in Scotland with all the advantages that that brings to both Scotland and the companies.

The Government claim, and have done so since we discussed this matter last year, that the measure proposed for Scotland will reduce the under-age drinking problem. They have not advanced any evidence whatever which proves that outlets with three or more points of sale are the source of alcohol consumed by under-age drinkers. They further claim that the OPCS survey of 1986 on adolescent drinking indicates that supermarkets are a significant source of supply for under-age drinkers.

At the meeting to which I have just referred, it was admitted that the survey to which I have also referred, made no distinction whatever between outlets according to their size or status. Therefore it is not possible for me to understand how the Government have been able to make the claim that they do. Moreover, the survey to which I have referred and others carried out since have shown that the home and off-licence premises such as clubs are by far the largest sources of alcohol for adolescents.

There is far more evidence against the claim that supermarkets are a significant source of alcohol for under-age persons. First, it is well accepted that under 1 per cent. of customers in supermarkets for any item whatsoever are unaccompanied persons under the age of 18. Secondly, licensing boards have reported that they do not have difficulties with supermarkets. No supermarket has ever had a licence withdrawn or a renewal refused on the ground that it had sold alcohol to persons who were under age. My noble and learned friend the Lord Advocate has a copy of the Scottish Consumer Council report. He will be well aware of what it says in that regard. Perhaps, for the benefit of the Committee, it is sufficient to say that it agrees with the statement that I have just made.

I have before me a number of letters which support my contention. In a letter of 8th November 1989 to the Scottish Consumer Council, Renfrew district licensing board said: The proposed Bill was indeed drastically under-researched and discussions with the Police or Cleric of the Licensing Board in any urban area in Scotland would have provided ample information to start out on the right lines. The existing powers are adequate".

The deputy district administrator concluded his letter: Further, assistance to the local branches of the Scottish Council on Alcohol with their educational campaigns would be far more beneficial than legislation".

Lothian Regional Council children's panel, writing at about the same time, says: In fact, over the years the number of cases which have been drawn to my attention by a formal referral for a contravention of the Licensing (Scotland) Act by purchasing alcohol while under age has dwindled to nil".

The letter, written by the regional reporter of the children's panel, concludes: Not having direct referrals, it is difficult to be definitive, but all other sources of information lead me to believe that purchasing alcohol in supermarkets is the last place that the youngsters get the drink".

The last letter I wish to quote is dated November 1989. It comes from the Edinburgh Council for the Single Homeless and is signed by the single persons officer. It states: Briefly we would endorse all the points made in the SCC's response to the consultation paper with particular emphasis upon:

  1. 1. That it is already illegal to sell alcohol to under age persons and very little appears to be done to enforce this.
  2. 2. In our experience illegal sales from large retail outlets such as supermarkets are not a problem. Most minors buy their alcohol from small off-licences and licensed "corner' shops".

It is fair to say that supermarkets go to elaborate lengths to avoid selling alcohol to under-age persons. That is demonstrated by their training systems and by their strict supervision of sales which is already operating in Scotland since the 1988 Act was implemented in England and Wales. The consequences of the measures contained in the Bill will be serious. They will be especially serious because they will deter supermarkets, which are large employers in Scotland, from employing under-age check-out operators. There will also be problems with training. I know that my noble friend Lord Sainsbury wishes to say a few words on that aspect.

If retailers continued to allow under-age persons to work at check-outs, such check-out points would have to be designated as no-go areas for people wishing to buy alcohol. That would cause confusion and annoyance to customers. Again that is a point which the Scottish Consumer Council set out on page 7 of its response to the consultation document.

The real point at issue here is that supermarkets— essentially those with selling places which amount to more than three check-outs— are being discriminated against. There is no justification that I have found, and nor has any been put before me, which suggests that such outlets are a prime or indeed a small source of the sale of alcohol to under-age purchasers. It seems, therefore, that companies, supermarkets such as those which my noble friend operates and a number of other outlets of repute, should not be discriminated against. If this supervisory requirement is determined by the Government, it should apply across the board. That is essentially the purport of the amendment tabled in my name and that of my noble friend Lord Jenkin of Roding. I beg to move.

11 p.m.

Lord Jenkin of Roding

I rise to express my support for the amendment which has been so comprehensively moved by my noble friend Lord Lucas of Chilworth. I wish to add but a few points in support. However, before I do so perhaps I may say how grateful we were for the time which the Minister, Lord James Douglas-Hamilton, and my noble and learned friend the Lord Advocate gave to listening to the arguments on this clause. We were invited to put such arguments forward when we reached the appropriate stage in the debate.

I do not wish to repeat at length the speech I made in the debates on Jimmy Hood's Bill which was sent here from another place last year. However, there is widespread concern about the amount of under-age drinking which occurs not only in Scotland but in the whole country. A good deal of research has been carried out to ascertain the causes.

A year or so ago I was privileged to chair an ESRC conference which examined the findings of some of the research funded by the council. Under-age drinking is a great deal more widespread than is commonly assumed. A very high proportion of youngsters have their first drink in their early teens and become fairly regular drinkers later in their lives. The main source of the alcohol they obtain has been shown to be the home. For example, it may be that a child is given the chance of trying a small glass of sherry or some such substance when the rest of the family are drinking. Similarly, a youngster may be invited to share a can of beer with his father and uncles while they are on their way to a football match. There is much research along those lines.

The problem arises when the youngsters begin systematic drinking other than in the family. In normal circumstances, the family can be reckoned to control that drinking. However, when the youngsters start to obtain alcohol on their own the trouble arises. They drink too much and get into difficulties. The problem was examined exhaustively by the committee under the chairmanship of my noble friend Lady Masham. In the report of that committee and in the OPCS report to which my noble friend referred, there was evidence that among the sources of the alcohol that the youngsters get were the off-licences. As my noble friend said, the evidence discriminated between large and small off-licences.

The view of the licensing boards and of the Scottish Consumer Council is quite clear— that the law tends to be broken overwhelmingly in the smaller shops. One can well understand that the small corner shop may be struggling a bit to keep its end up. It will not be averse to selling a six-pack of lager or a half bottle of whisky or gin because the buyer happens to be under the age of 18. The off-licences are the source of the trouble.

This clause is a great improvement on what we were looking at in the Private Member's Bill last summer. However, the provision is the wrong way round because under the Bill the higher obligation of forbidding any checkout clerk under the age of 18 to make any sale— all alcohol sales have to be by checkout clerks over the age of 18— is imposed on the larger supermarkets with three or more points of sale. A lesser duty— merely that the sale has to be specifically authorised by the licensee or somebody over the age of 18— applies to the smaller supermarket with fewer than three outlets.

It is my view— and I am stating what I said at greater length last summer— that that is absolutely the wrong way round. There is no evidence that the larger supermarket are a significant source of supply of alcohol to buyers under the age of 18. Some of it may be because a gang of five youngsters outside a shop may persuade someone over the age of 18 to go in and buy a six-pack. The buyer comes out and gives them one can each and has one can free. The shop is committing an offence and if the law were to be strictly enforced, if it were thought that this had become a practice in a supermarket, the police could follow the buyer and pick him up outside. The shop has committed an offence in that it has sold alcohol to someone under the age of 18.

I think that if a few cases of that kind were brought before the courts the practice would diminish sharply. But there is nothing in the clause that will affect that. There is no evidence that the under 18 year-old buyers go into the supermarket and buy their alcohol. They are a tiny proportion of the total.

It seems to me therefore that this clause aims at the wrong target. What will its effect be? My noble friend Lord Sainsbury of Preston Candover will no doubt spell this out. It is perfectly clear from the evidence of the Consumer Council, of the Retail Consortium and others that the effect will be to make shopping in the larger supermarkets more of a hassle to many consumers. There will be two queues. Customers will find that they cannot take their alcohol past the checkout point where the cashier is under the age of 18 and they will have to start all over again; or they will revert to the even less satisfactory practice of the shop within a shop.

There is the problem of training. If a youngster cannot be given cash experience on a checkout point, the training programme is infinitely less valuable under the retail trades' youth training programmes than if he can. If we are saying that a larger supermarket cannot put an under-age clerk on a checkout point because he would not be entitled to sell alcohol, we are interfering substantially with the training programme. I have seen a letter from the National Retail Training Council which substantiates that. It therefore seems to me that the amendment we have suggested is appropriate. It seeks to apply the rule which applies everywhere else in the country; namely, that sales of alcohol at off-licences should be specifically authorised by someone over the age of 18; that is to say, there should be effective supervision. We believe that is the right way to deal with this matter. To proceed as the Bill proceeds is to hit the wrong target and to impose substantial additional hassles and trouble on the shopping public and substantial extra administration and trouble on retailers.

I hope that my noble and learned friend will agree to take these arguments away and look at them again. There is no doubt that there is strong opposition to the clause as it stands in the Bill. I believe that the Government would be well advised, in the interests of obtaining sound legislation to attack what is an admitted problem, to take this matter away and consider perhaps tabling their own amendment on Report. I hope that my noble and learned friend will agree to do that.

Lord Macaulay of Bragar

I suggest with great respect that the clause that the Government propose may arise out of the long debate we had on what has been referred to as Jimmy Hood's Bill. However, I think it is right to remind the Committee that that Bill was the remnant of other legislation and it was under severe procedural attack. No amendment could be made to the Bill without losing the entirety of it. I believe the line proposed at that stage was that at least we could start with the supermarkets and then move on to the smaller shops.

There is no doubt that what the noble Lord, Lord Jenkin, said about small shops has a lot of truth in it. Those of us who work in the courts— no doubt the noble and learned Lord the Lord Advocate has experience of this in his administrative capacity in the Crown Office— know that small shops have another disability in that small shop owners are open to the threat of violence by young people. If the shop owners do not hand over the drink, they are threatened with the destruction of the shop or personal attack. That is a serious problem for small shops in some parts of Scotland. The problem of selling drink to under-age people will never be conquered. We can only do our best to limit it. If those people want to obtain drink, they will always get it. Having looked at Amendment No. 283, it seems to me that it is neatly drawn and it would be worth the while of the Government to consider it in the light of their proposed new Section 97A. The Law Society of Scotland has indicated that it thinks the distinction made in new Section 97A is an artificial one and that the present Clause 37 would prove unworkable.

The Viscount of Falkland

I wish to support absolutely what has been said by the noble Lord, Lord Lucas, who moved the amendment, and by his noble friend Lord Jenkin of Roding. I also wish to thank the noble and learned Lord and his honourable friend in another place for receiving us in the Scottish Office. On that occasion I put forward views on behalf of voluntary agencies throughout the United Kingdom. I stress that fact because the experience of those who are involved with the problem of under-age drinking is that there is no great difference as regards the sources of drink for under-age purchasers. The noble Lord, Lord Jenkin, is absolutely right. Among the more affluent classes, if I may put it that way, the home is the most common source of drink for young people.

A school friend aged 11 of my daughter obtained a bottle of gin which she shared surreptitiously with a slightly younger friend. The younger friend was taken off in a coma to the local hospital. I was slightly outraged that the authorities in the school sought to vent their rage on the two girls and rusticated them for a week without taking any measures that I could discern against the parents for making that drink available. However, among those who are less affluent the place where drink is more often obtained is the corner shop, and that is shown clearly both in Scotland and England.

As vice-chairman of the Parliamentary Alcohol Services Group, an organisation which closely monitors under-age drinking, I find that in general supermarkets take enormous pains to make sure that young people do not have access to drink. That is not to say that the situation is completely watertight because occasionally people slip through. However, it is obvious that the young person does not do the family shopping. Problems arise when they go to a supermarket and queue because they become conspicuous. Why go there? One can go to a corner shop in London and other inner city areas, and in less populated areas, and have no difficulty whatever in obtaining drink. I have asked my teenage daughters about the situation. I have also asked my son, who was at a Scottish school, and other young people. They all say that under no circumstances would they go to a supermarket to buy liquor; they would always go to the smaller outlet.

In that respect I find the Scottish attitude strange. They almost seek to exclude from their proposed legislation the outlets which are obviously the main sources of drink for young people. I shall not describe the difficulties which would be involved for the supermarkets in terms of staffing arrangements because I anticipate that the noble Lord, Lord Sainsbury, will do so. However, it is a pity to legislate on a false premise. Neither does the proposal help those of us in the voluntary agencies because it is not consistent with what is happening elsewhere. I hope that the noble and learned Lord will heed what has been said.

Lord Sainsbury of Preston Candover

I must first declare an interest because I am chairman of a company which operates a large hypermarket in Edinburgh, apart from a few stores nearer home. I support with all the vigour I can the arguments put forward by my noble friends Lord Lucas and Lord Jenkin. They have described well the practicalities, but I wish to spell them out in a little more detail.

I believe that the Minister has not listened to those who have first-hand experience in Scotland. I know that my views are shared by all the large food retailers which sell alcohol there. They were consulted but they were not listened to. Their views are the same as mine: this is the wrong target. The proposal is also impractical and takes no account of the interests of the majority of customers or of the majority of young people who work in retail shops.

Adopting such an attitude is to treat 17 or 18 year-olds as though they are not capable and responsible. I assure the Committee that reputable companies take great pains to train and employ young people so that they take a responsible attitude to their work. The legislation is an insult to the young because it says that they cannot be trusted; it is an insult to the food companies because it says that they cannot be trusted to train their young people. It encourages them not to employ young people. It totally disregards the attitude of caring for the honest customer who is not trying to buy liquor in order to give it away to under-age people. The legislation would make it difficult for customers in Scotland to discover which check-out to use and it would discourage the employment of young people.

The legislation is most mistaken. I regret that the attitude of Ministers appears to be not to listen to those who have first-hand experience over many years of the responsibilities— we regard them seriously— of not selling drink to under-age people. As has been said, it may happen occasionally but the large supermarket and, more importantly, the customer against which the legislation is aimed do not deserve such treatment. Why differentiate just for the sake of being different between legislation for the rest of the country and legislation for Scotland? If the object is to have different legislation, that is one thing, but if it is to learn from experience over many years, I support my noble friend Lord Lucas.

11.15 p.m.

Baroness Carnegy of Lour

It is now late and some of us have been engaged on the Bill since three o'clock this afternoon. I therefore beg the Committee's indulgence if my head is not very clear.

I hope that my noble friend Lord Sainsbury does not blame the Government for what has happened. The Government have followed the example of the House of Lords. As I understand the clause, it is precisely as Mr. Jimmy Hood's Bill was when it ran out of time in this House as a result of the decision of noble Lords on an amendment that I tabled.

Many issues have been at stake in the matter. Many people have been worried about it. I want the right thing for supermarkets, particularly in the West of Scotland where the problem has arisen. As I understand it, the Convention of Scottish Local Authorities is thinking in another way, but if it reads what had been said and becomes interested in the matter, I expect that it will get into the subject as everyone else has done and think hard about it. I notice that noble Lords opposite have not moved the amendment that they tabled, which interested me as it went in a different direction from the one tabled by noble Lords on this side of the Committee.

I want to listen to what my noble and learned friend on the Front Bench has to say and see how he responds to what the retailers have very powerfully said. They have mounted an interesting information campaign about their feelings. They are English-based, as my noble friend Lord Lucas said. They assume that the way in which the supermarkets operate in Scotland is the same as south of the Border. It is probably not all that much different. I shall listen with interest to what my noble and learned friend has to say and then see whether I am happy to leave the matter there.

Lord Fraser of Carmyllie

It would be wrong to consider that there is anything other than widespread concern about under-age drinking in Scotland. That was expressed in response to the Scottish Home and Health Department's consultation paper on licensing law in Scotland which was issued in October 1986. My noble friend Lord Jenkin of Roding may well recollect that that widespread concern spilled over after the Jimmy Hood Bill last year into what was, frankly, some rather unpleasant and irrational reaction to carefully presented views in this House at that time. I mention that point only to underline the degree of concern in Scotland.

In April last year a Private Member's Bill was introduced in another place, with Government support, which provided that in any off-sale premises sales of alcohol could be made only by or under the supervision of an adult; in any licensed premises with three or more points of sale, the Bill also required alcohol sales to be authorised at a separate "wrapping and pricing" point manned by adults. The Bill passed its Commons stages without amendment. This House gave unanimous support for the Bill's aims, but doubts were expressed by noble Lords about the effectiveness of the provisions in securing these aims. In the event, there was insufficient time for amendments moved and carried here to be considered in another place and the Bill did not therefore progress.

However, the Government had undertaken that should that Bill fall, relevant provisions would be included in the series of measures which form Part III of the present Bill. We consulted a wide range of trade, health, social work, law enforcement, consumer and church interests on the matter. We weighed all the responses with great care and had considered that the provisions in Clause 37 represented a moderate and necessary measure to tackle the widely acknowledged problem of under-age drinking in Scotland.

As my noble friend Lady Carnegy of Lour indicated, the clause incorporates the amendment she proposed in July last year which was approved by this Chamber. The noble Lord, Lord Sainsbury, indicates that there were consultations with retail interests in Scotland but that they were not listened to. With the greatest respect, I must say to him that at the time that my noble friend Lady Carnegy moved her amendment, there were those representing, if not his own organisation, then certainly other serious and major retail organisations in Scotland who indicated that what my noble friend had tabled, which could get through in the Bill then being discussed, was a compromise that they would have considered to be a satisfactory one.

I am bound to say that while I appreciate that both my noble friends Lord Jenkin and Lord Lucas have been wholly consistent in the line that they have maintained, there have been others who indicated that the social compromise position that we adopted was reasonable. Having said that, I find myself in a position of some difficulty because I am not entirely sure of the position now of noble Lords on the Front Bench opposite. I understood that they vehemently or vigorously supported the Jimmy Hood proposals but they have now not moved their amendment which essentially took off in an opposite direction.

When we considered this subject last July, Peers such as the noble Lady, Lady Saltoun, sought to move the shop within a shop requirement, and that appeared to receive some support. At that time the Government considered the shop within a shop proposal too onerous for retailers. The simple supervisory requirement which at present obtains in England and Wales for all off-sale premises was not sufficient for Scotland.

There has been a wide range of views expressed, and there would appear to have been something of a shift of opinion in favour of the amendment which my noble friends Lord Lucas and Lord Jenkin have tabled. With that in mind it would seem that the appropriate course at this time, as my noble friend Lord Jenkin requested, is that I take back this matter and reconsider it. I should be grateful if he and my noble friend Lord Lucas would be prepared to accept that. I indicate that I have heard very clearly what has been said in the Committee this evening.

Lord Lucas of Chilworth

I am more than grateful to my noble and learned friend the Lord Advocate for what he said. Perhaps I may make just two comments. First, it is not for me to answer for the Benches opposite, but it came quite clearly from the noble Lord, Lord Macaulay, that he would in general support what my noble friend and I were proposing. Indeed he was given to express great concern over the element of violence that may obtain in the acquisition of liquor supplies in small stores, which is a matter that the authorities would have to consider separately.

I do not wish to be pedantic about the remarks of my noble friend Lady Carnegy of Lour regarding her blame or my blame of the Government in relation to matters discussed previously. I think that if she cares to read our debates last year she will find that tonight she has perhaps confused the tactics of that day with the strategy. The noble and learned Lord the Lord Advocate has said that he will take this back. I take it that his expression includes a commitment at least to further discussion, if not to his own amendment after that further consideration. I believe that I am right in acknowledging that acquiescence from my noble and learned friend.

Lord Fraser of Carmyllie

Yes, I have indicated to my noble friend that if he will withdraw the amendment I shall take the matter away and have a further look at it.

What has been interesting about this part of the Bill is that otherwise there seems to be a clear degree of unanimity in what needs to be achieved on licensing. Compromises may have to be struck, but there is no sharp disagreement. However, where I thought the balance lay is not precisely where it has emerged during the course of this less than short debate. On that basis, I shall take the matter away for consideration.

Lord Carmichael of Kelvingrove

Perhaps I may say a word. I do not think that the noble Lord, Lord Lucas, should be surprised that I withdraw the amendment. We had made that arrangement. We accepted that his amendment was very interesting and one that should be considered. My noble friend Lord Macaulay said that Jimmy Hood's Bill was under pressure and any amendment of it would have lost the whole Bill. We therefore believed that the amendment that was put down was interesting. Time has moved on and new evidence has come to light about whether there should be special outlets for the sale of alcohol in large shops. I am surprised that the noble Lord does not remember the discussion that we had last week.

Lord Lucas of Chilworth

I am sorry. I obviously did not express myself properly. I intended to mean that it was not for me to answer why the Members on the Benches opposite took the view that they did. In the light of the assurances of my noble and learned friend the Lord Advocate, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 284A and 285 not moved.]

[Amendment No. 285A had been withdrawn from the Marshalled List.]

[Amendment No. 286 not moved.]

Clause 37 agreed to.

Clause 38 [Power of police to enter clubs]:

Lord Macaulay of Bragar moved Amendment No. 286A:

Page 39, line 42, at end insert— (" (lA) (a) On making his request to be permitted to enter the premises the constable shall intimate the reason for his need at that time to enter and inspect the said premises, and this reason shall be recorded in writing and a copy thereof provided for retention by the Club. (b) Any reason given by any person refusing or obstructing a constable in the exercise of his duty in terms of section 114 (1) above shall be noted and a copy of the reason noted shall be provided for retention by the person alleged to be refusing entry or obstructing the constable.").

The noble Lord said: The amendment relates to the powers of entry into clubs which are dealt with at Clause 38. At present the clause states: A constable may, at all reasonable times, enter and inspect the premises of any registered club".

If we accept the principle of that, it is thought that there should be some protection for the people involved in running clubs: for example, that they are not the victims of a vendetta or vindictiveness on the part of a policeman or indeed a chief constable.

The amendment seems to have been struck by a gremlin. It should read: On making his request to be permitted to enter the premises the constable shall intimate the reason for his need at that time to enter and inspect the said premises, and this reason shall be recorded"— and I do not know how the words "by the court" got in; with the Committee's permission I ask leave to delete the words "by the court"— in writing and a copy thereof provided for retention by the Club".

Paragraph (b) reads: Any reason given by any person refusing or obstructing a constable in the exercise of his duty in terms of section 114 (1) above shall be noted and a copy of the reason noted shall be provided for retention by the person alleged to be refusing entry or obstructing the constable.").

These would seem to be reasonable safeguards for the people running the club. So there can be no dubiety when it comes to the question of the club being prosectued for an offence committed by any person in the club.

Even if the Lord Advocate is not happy with the wording of the amendment, I hope he may at least give it some consideration between now and the Report stage. I beg to move.

11.30 p.m.

Lord Fraser of Carmyllie

Clause 38 substitutes a new Section 114 (1) for the existing provisions, giving the police a new power of entry into clubs without a warrant from the sheriff. The provision seeks to mirror the entry powers available in respect of other licensed premises. However, the entry powers in the Bill are more restrictive so far as the police are concerned because they permit entry only at "all reasonable times." The amendments would require the police to provide the offender and the club with written reasons for wishing entry or for noting of entries where the police entry has been refused or obstructed. This goes far beyond the requirements in relation to powers of entry to pubs and hotels. I cannot see any justification for such a significant difference.

As I am sure the noble Lord, Lord Macaulay will appreciate, there was, among those in Scotland who commented on the consultation exercise, an overwhelming majority who supported a police power of entry without a warrant, and we accept that the police should be able to enter clubs if they are satisfied that there is justification. I would not wish to impose additional burdens on the police such as the amendment would create.

If the noble Lord is concerned that clubs might find themselves subject in some way to an attitude of harassment by a particular police officer or group of police officers, I would suggest that there are sufficient arrangements already in place for them to make a complaint to the chief constable if they are so concerned. But I should not like to make any significant difference in police powers of entry between clubs and the pubs and hotels to which I referred.

Lord Macaulay of Bragar

I am grateful for that answer. One of the reasons for asking for this particular type of approach is that when a person is in a club he really is sometimes in an extension of his home, and in fact some people might live life the other way round. But in any event it is nice to know why the privacy of the club is being invaded, so to speak, by the police; and clubs are not really akin to public houses, which are open for entry anyway. That is the reason why the amendment was put down.

I am grateful to the noble and learned Lord for his answer. I shall consider carefully what he has said, and in the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Fraser of Carmyllie moved Amendment No. 286B:

Page 40, line 2, at end insert— (" (2A) Where an employee or agent of a registered club commits an offence under subsection (2) above, every person whose name was, at the time when the offence was committed, contained in the list lodged under section 103 (3) (b) of this Act or, as the case may be, in the new list last lodged under section 103 (5) or (5A) of this Act in respect of that club shall be vicariously responsible for the offence and proceedings in respect of that offence may be instituted against any such person whether or not proceedings have been instituted against the employee or agent: Provided that it shall be a defence for any such person to prove that the offence occurred without his knowledge or connivance and that he exercised all due diligence to prevent its occurrence.").

The noble and learned Lord said: As I have indicated, Clause 38 provides a new power to enter and inspect registered clubs at any reasonable time. This power supplements the existing police power of entry when a warrant has been obtained. Subject to a defence of due diligence, new Section 114 (2) provides that a person who refuses to admit a constable entering under new Section 114 (1), or who obstructs a constable, is guilty of an offence. After further consideration, we have come to the view that Clause 38 needs to be strengthened. This amendment provides for vicarious liability of club office bearers for these offences, and for prosecution against office-bearers simultaneously with or independently of that of employees such as door attendants. These provisions are in line with the terms of Section 67 (2) of the 1976 Act which relate to existing offences.

The noble Lord will notice that the proposed amendment also provides the standard defence of due diligence, also on the lines of Section 67 (2). I beg to move.

Lord Macaulay of Bragar

On a minor point of clarification, the offence is committed, according to the new Section 114 (1), by any person. That means any person, not necessarily a club member or a member of the management of the club. That means that the club management, which would know nothing about the activities of a drunk in the club who should not be there but who obstructs entry by the police, would be vicariously liable subject to the defence of due diligence. The words "any person" may be rather wide and if vicarious liability is to be imposed on the management, that should be limited. For example, in a factory accident, vicarious liability applies only in relation to the actions of the employees of the factory.

Lord Fraser of Carmyllie

I understand the point raised by the noble Lord. That is why I sought to stress that there is a due diligence defence. It is not difficult to imagine that if all sorts of drunks were allowed to obstruct entry to the clubs, no one would gain entry. There, the due diligence would not be open. However, if, for example, a casual friend of a member got into a position in which he restricted access for a member of the constabulary, I have no doubt that the defence of due diligence would apply.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 286C: Page 40, line 34, after ("a") insert ("registered").

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

On Question, amendment agreed to.

Viscount Brentford moved Amendment No. 286D:

Page 40, line 39, at end insert— (" () After section 16 (1) of the principal Act there shall be inserted the following subsection— (1A) An otherwise not qualified group consisting of at least 25 payers of Community Charge in the locality may be accepted as an objector subject to such conditions as to how its objection is to be received as may be laid by the board". () After section 17 (6) of the principal Act there shall be inserted the following subsection— (7) In considering the grounds for refusal mentioned in paragraph (d) above the licensing board may have regard to and follow such knowledge as it may possess from within its own membership but it may in its own discretion obtain such additional information as it considers necessary and appropriate in all the circumstances to enable it to come to a decision which decision shall be final and not subject to review." ").

The noble Viscount said: Perhaps I may speak briefly on these two proposed subsections, the purpose of which is to enhance local democracy in Scotland.

The idea of the provision for 25 community charge payers in the locality to have a say is to enable members of the community to make their own comments direct to the licensing board. It is shown that there must be a substantial number so that an odd person or very small group of people cannot come within the meaning of this clause. Any trivial comments by one or two people would be omitted.

It is difficult for legislation to lay down exactly the interested parties who may be involved in any locality. However, I submit that the first proposed subsection allows for greater local democracy within a community.

As regards the second subsection, I quote as accurately as I can remember the words of my noble and learned friend the Lord Advocate a few moments ago: "The decision of the licensing board should be final and appeal to the sheriff should be considered inappropriate in these circumstances". Matters as outlined should fall within the domain of the local democracy. The licensing board members are, as the Committee will know, elected district councillors. This is a question of fact which they should have the right to decide without any appeal to the sheriff. This amendment would enable the licensing board to take steps to obtain the information which seems appropriate to make a decision on such over-provision as there may be of facilities in their locality. I beg to move.

The Earl of Balfour

I should like to recommend a change in the first part of the amendment. Instead of the words "payers of the community charge", it would be better if it read "at least 25 members of the electorate". That is a better wording.

Lord Fraser of Carmyllie

I have to say to the noble Viscount that I cannot envisage a situation where the first part of this amendment would be necessary. At present the list of competent objectors is in Section 16 (1) of the Act and includes any person owning or occupying property within the neighbourhood of the premises to which a licence relates. I should have thought that that covered any community charge payer who lived in the vicinity of the relevant property. Section 16 (1) also refers to any organisation which, in the opinion of the board, represents owners or occupiers. In practice that also includes groups of local community charge payers.

The noble Viscount, in moving this amendment, clearly is not envisaging just any 25 community charge payers within the local government area, but within the locality. I hope I can assure him that what is at present provided for effectively meets his concern that local individuals should have a right to be heard.

The second part of the amendment also appears to be unnecessary as licensing boards may use the discretion available to them in using local knowledge to decide whether or not to grant a licence. However, the reference in the amendment to the decision of the licensing board being final and not subject to review is not acceptable. If the board is minded to refuse a licence application on the basis of some factor which was not the subject of an objection but was arrived at during the board's consideration of the application, then the board, in equity, must let the applicant have details of its reasons so that he is able to comment on them.

With that explanation, I hope that the noble Viscount will feel able to withdraw his amendment.

Viscount Brentford

I thank my noble and learned friend the Lord Advocate for his explanation. At this hour of the night I will certainly look at what he has said and I beg leave to withdraw the amendment, taking note of the advice of my noble and learned friend for the alteration.

Amendment, by leave, withdrawn.

Clause 38, as amended, agreed to.

Lord Carmichael of Kelvingrove moved Amendment No. 286DA.

After Clause 38 insert the following new Clause— (". The requirement that a restricted hotel licence, a restaurant licence or a refreshment licence should not be granted in respect of premises which contain a bar counter shall cease to have effect, and accordingly Schedule 1 to the principal Act (types of licence) shall have effect with the omission of the references to premises which do not contain a bar counter.")

The noble Lord said: This is a short amendment bringing the licensing of small hotels and guest houses up to date. As it stands one needs a definition of "bar counter". I am sure that the noble and learned Lord the Lord Advocate must have noticed at conferences and around Scotland that every boarding house now has a little bar. It seemed to me that strict application of the existing law of the types of licence required in Schedule 1 to the parent Bill makes those premises illegal. That seemed a little silly and this amendment brings that situation up to date. I beg to move.

Lord Fraser of Carmyllie

The effect of this amendment would be to bring hotels with a restricted licence, restaurants and refreshment establishments into line with public houses and hotels. The present Act differentiates between those establishments whose main function is to serve alcoholic liquor and those whose main function is the provision of food with drink as an ancillary.

The main distinction is that a bar is the main feature of the former and is not permitted in the latter. The amendment, if carried, would enable those establishments without a bar to provide one, thereby making them no different from public houses and hotels, but without the conditions which apply to public house and hotel licence applications.

While I understand the de minimis point made by the noble Lord, I would be truly apprehensive that that would be a backdoor method of providing public house facilities without providing a public house licence. With those anxieties in mind it is not a proposal I can support.

Lord Carmichael of Kelvingrove

I can see the problem. There is also a problem in the definition of what a "bar" is. We all know what is meant by a little cocktail bar; some get bigger but do not quite reach the public bar standard. I am sure we shall return to this at some point, perhaps not in this Bill, but fairly soon, However, I thank the Minister for his reply and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clauses 39 to 41 agreed to.

Clause 42 [Income-based fines experiment]:

Lord Fraser of Carmyllie moved Amendment No. 286E: Page 46, line 21, at end insert ("weekly").

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

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 286F: Page 46, line 35, at end insert (" (any fractions of a week being rounded off as follows— one third of a week; 2 days two thirds of a week; 5 days) ").

The noble and learned Lord said: This amendment simplifies the task of calculating a period of imprisonment for non-payment of fines when an income-based fines order is in operation. The ratio of the offence factor to the number of weeks' imprisonment to be imposed in default is three to one and there is a difficulty with the practical application of this unless the offence factor is a multiple of three. For example, if the offence factor is seven, the number of weeks' imprisonment in default would be two-thirds. This obviously creates problems for prison and court authorities. These problems can be avoided with this amendment which rounds up any fraction of a week.

I regret having to move a complicated algebraic formula at this time of night but it is a simplification. I beg to move.

On Question, amendment agreed to.

Clause 42, as amended, agreed to.

The Earl of Strathmore and Kinghorne

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.