§ 3.9 p.m.
§ The Lord Advocate (Lord Fraser of Carmyllie)
My Lords, I beg to move that the Law Reform (Miscellaneous Provisions) (Scotland) Bill be now read a second time.
This is an important measure. I have heard criticism that the provisions in the Bill are in effect too important to be brought together in a miscellaneous provisions Bill. At the same time I am bound to say that those who have ventured that criticism have also expressed the view that it is 167 unfortunate that some important matters have been omitted from the self-same Bill.
Surely it is better to take the opportunity presented by such a Bill rather than await four or five individual Bills containing four or five Second Readings, multiple Committee stages and the subsequent Report stages. The time of your Lordships is valuable and I suggest that it is better served by concentrating on this one all-embracing Bill such as we have today. I know that many miscellaneous provisions Bills contain an enormous variety of minor matters where some correction, amendment, clarification or repeal will improve the law. Individually these matters may be small but the cumulative value of all the reforms is substantial. But this Bill is not like that. It has three major parts and only a few minor provisions. It is therefore something of a self-denying ordinance on the part of Scottish Office Ministers and the Scottish Office, as it seems important that your Lordships should not be distracted by myriad detail from the central purposes of this measure. These are to introduce new arrangements for supervising charities in Scotland, to improve choice in legal services and to make important adjustments to the law on liquor licensing. I shall discuss charities first.
The first part of the Bill makes provision for the establishment of an improved system of supervising charities in Scotland. In July 1988 my right honourable friend the Secretary of State for Scotland issued a consultative memorandum The Supervision of Charities in Scotland. The very full response to that consultation confirmed the Government's view that the current arrangements are inadequate for modern needs. My right honourable friend therefore issued in October 1989 a statement setting out his conclusions under the title Charities in Scotland: a Framework for Supervision. The provisions before your Lordships in Part I of the Bill give effect to the proposals in that statement.
It is not often appreciated that Scotland has never had a Charity Commission. This is not in itself a weakness but there have been some unsatisfactory consequences. Bodies which wish to be recognised as charitable in Scotland in order to qualify for tax relief must apply to the Inland Revenue for confirmation that their objects are charitable. The Inland Revenue claims section in Edinburgh which deals with such applications has built up considerable expertise in Scottish charitable matters and great praise for its expertise and helpfulness was given by many of the bodies which responded to my right honourable friend's consultation. However, the Inland Revenue's dealings with charities are in strict confidence and it is not possible for any member of the public, or indeed any official body, to obtain details from the Inland Revenue about whether particular bodies have been recognised by it as charitable. Moreover, if the Inland Revenue discovers instances of wrongdoing by a charity and that wrongdoing is not related to a tax matter, there is no body to which the revenue can report the matter for investigation in the public interest.
It is the Government's belief that if charities are to sustain the important function they play in Scottish 168 society it is essential that they should be able to enjoy the good will of the public on whose support they rely. The best way of maintaining the public's good will is to ensure that every charity is accountable, publicly and openly, for the manner in which it conducts its affairs and that in any rare instances where abuse or serious mismanagement of those affairs occur there should be provision for the affairs of the charity to be investigated and for those responsible to be brought to account.
With these objects in view Clause 1 of the Bill empowers the Inland Revenue to disclose to members of the public the names and addresses of bodies which it has recognised as being charitable and also to pass to myself as Lord Advocate information about any non-charitable activity among such bodies. Thus for the first time in Scotland members of the public will enjoy a facility and a right to be told which Scottish bodies have received recognition as charities. Clause 2 will prevent bodies which have not been recognised as charitable in Scotland by the Inland Revenue —or if they are established in England and Wales by the Charity Commission —from representing themselves as charities to the Scottish public; and it provides that those who do so without having obtained such recognition shall be guilty of an offence.
Clauses 3 and 4 place upon charities in Scotland a duty to keep proper accounts and to make available to members of the public on payment of a reasonable fee copies of such accounts. By these provisions individual members of the public will for the first time be able to discover as respects any charity in Scotland what its purposes are and what it has done to promote these purposes. Ready, direct public access to information about charities is thus the first key aspect of these provisions.
Clauses 5 to 7 make provision enabling me to carry out investigations within Scotland when it appears that the organisers of particular charities have been guilty of mismanagement or other wrongdoings and give me powers to petition the court both for orders remedying or preventing continuance of the abuse and for orders imposing penalties on those responsible.
Under Clauses 8 and 9 we turn to the second key aspect of these reforms. It is possible in Scotland under the doctrine known as cy prés, or approximation, for a public trust whose purposes have failed to petition the Court of Session for approval of a scheme authorising the application of trust funds to a purpose as near as possible to the original purpose. However, unlike the position in England and Wales, the cy prés procedure is in Scotland available only where it is no longer possible to carry out the trust's purposes in the manner prescribed. Clause 8 broadens the concept of cy prés to enable application to be made where the purposes of a trust have become obsolete or lacking in usefulness as distinct from being incapable of being put into effect. Clause 9 provides procedures enabling small public trusts with annual incomes not exceeding £5,000 to reorganise without the necessity of seeking court approval, while Clause 10 enables certain very small trusts no longer capable of 169 achieving the purposes for which they were established to spend capital in order to achieve their charitable purposes. Taken together these provisions should unlock charitable funds and enable them to be applied to good effect in modern society.
I trust that I have said sufficient to indicate the broad purposes of Part I of the Bill. It has been designed to meet the particular needs and circumstances of Scotland. I should like to pay tribute to the helpful co-operation which has been afforded in its development by the Scottish Council for Voluntary Organisations on behalf of a wide range of Scottish charities and to thank the Charity Commission for England and Wales for the invaluable assistance it has given. I warmly commend the proposals contained in Clauses 1 to 13 to your Lordships' consideration.
I turn now to the second part of the Bill which deals with legal services. I am sure that noble Lords will agree that the Scottish legal profession has much of which it can justly be proud. While it is beyond dispute that the advocates and solicitors of Scotland have served the country well for centuries, a fine history does not of itself make further improvement any less desirable. These reforms therefore remove some rigidities affecting the provision of legal services. The reforms to which this part gives effect are based on the Secretary of State's consideration of responses to his consultation papers The Practice of the Solicitor Profession in Scotland and The Legal Profession in Scotland and were announced in October 1989 in his policy statement The Scottish Legal Profession: The Way Forward. The broad purpose is twofold, to widen the choice available to those using legal services and to allow the providers of those services to respond to the demands of clients with innovation and flair to the maximum extent consistent with the interests of justice and the necessary protection of clients' interests.
I shall say briefly why these provisions are being brought before your Lordships. Conveyancing is of vital importance and it should certainly not be open to simply anyone to undertake such business. To permit that would be to jeopardise the quality of our property registers and to put the funds and housing of families at risk. But to insist that only solicitors in private practice should be entitled to provide the service is equally unrealistic. Solicitors who join the employ of, say, a building society do not thereby lose any of their competence in conveyancing. We are providing, as I have said, that safeguards comparable to those required of solicitors should be provided by any conveyancer. Thus conveyancing will continue to be in the hands of competent people who will safeguard clients' funds and who will be subject to discipline for misconduct. The Bill will make it possible both for individuals to qualify as technically competent to undertake the tasks involved in a conveyancing transaction and for individuals and commercial or professional organisations who employ qualified persons as conveyancers to offer services as conveyancing practitioners. This is a significant and positive reform.
Clauses 14 to 19 provide for the removal of certain barriers for prospective providers of conveyancing 170 and confirmation services and contain a structure for the authorisation and regulation of non-lawyers, whether they are large financial institutions or other suitably qualified individuals, who wish to offer these services to the public. At the centre of the structure will be the Scottish Conveyancing and Confirmation Practitioners Board which will be responsible for ensuring that satisfactory standards are maintained by all non-lawyers wishing to offer either conveyancing or confirmation services. The membership of the board will reflect a broad range of interests, including those with knowledge of the services for which the board is to be responsible. The authority of the Law Society of Scotland over its members is of course unaffected.
There is also provision both in the Bill itself and to follow in regulations to create a context for the provision of conveyancing services which is fair to all providers. Regulations will ensure that authorised practitioners offer and bear the cost of the necessary consumer protection measures. By means of a statutory code of practice, practitioners will be required to conduct conveyancing business in a way which gives clients access to suitably qualified professionals. Particular attention will be given in the code to the way in which cost information is presented before clients select their conveyancer. That range of measures will produce a framework which is both competitive and fair.
Clauses 20 to 22 provide for a major expansion in the range of people who may represent clients in court proceedings. I believe that clients requiring supreme court representation should have the opportunity to choose according to their needs whether to instruct a solicitor with rights of audience in those courts or to engage the services of an advocate. Like the conveyancing proposals, that is a significant reform. It recognises that particularly high standards of advocacy and of conduct are required in the supreme courts. The Bill does not therefore confer extended rights of audience on all solicitors. Instead it provides for the Law Society to set the necessary standards, with the approval of the Lord President of the Court of Session and the Secretary of State, and for only those solicitors who meet those standards to have the additional rights of audience.
In that I see no threat to the independent Scottish Bar. Advocates who are confident about the standard of service they provide need not be apprehensive at the prospect of solicitors appearing alongside them before the supreme courts. Experience has shown that there is considerable demand for the services of advocates in the sheriff courts and at tribunals and inquiries, where solicitors share the same rights of audience, and I see no reason why advocates should not continue to command a sizeable proportion of pleading work at all levels of the court structure.
We are of course in quite different circumstances from those which obtain in England and Wales. Scottish solicitors have enjoyed rights of audience in the sheriff courts, with their extensive jurisdiction, including jury trials, for a long time. Nevertheless, the reform opens up new opportunities for solicitors which they have long demanded —at least I thought they had. The rather curious briefing which the Law 171 Society has given to noble Lords leaves in some obscurity whether solicitors still wish for that change. Even if it is not to be made clear to the Government I hope that where the Law Society stands on the matter it will be made clear to its members.
The approach that I have outlined above has been adopted deliberately to ensure that standards of supreme court pleading are in no way diminished. That is a matter to which the Government attach great importance.
The Bill provides for the removal of existing statutory barriers to the formation of multi-disciplinary partnerships including solicitors. In future the Law Society and the Faculty of Advocates will be free to make rules in that area. Any such rules which prevent the formation of such partnerships which seek to offer services in relation to court work will require the approval of the Secretary of State for Scotland who will wish to ensure that the interests of justice are in no way compromised. The current prohibitions in law on mixed partnerships are a rigidity which is not conducive to the provision of services in ways that may better meet the needs and preferences of clients.
The Bill will strengthen the mechanisms for handling complaints about the provision of legal services. It provides a statutory duty for the relevant professional bodies to investigate complaints, and to report the findings to the complainer and to the practitioner complained against. I believe that that will assist the development and maintenance of high standards in that area. I attach even more importance to that than to the other reform in that area, the replacement of the curiously titled Lay Observer by a new Ombudsman with a wider jurisdiction.
I have not sought to explain every detail of the provisions in the Bill since given that detail that is a task best left to the Committee. I have, however, attempted to explain the Government's thinking on the broad issues involved and to offer some examples of how that thinking is illustrated. The two major planks of the Bill, the extension of solicitors' rights of audience and the reform of the structure for conveyancing services, with the additional improvements we are making elsewhere in the Bill, will contribute to the efficient and flexible provision of legal services. I believe that that can only be in the best interest of clients.
I turn now to Part III of the Bill which proposes changes to liquor licensing law in Scotland. Your Lordships will recall that the Licensing (Scotland) Act 1976 introduced a new code of liquor licensing in Scotland, incorporating many of the recommendations made by a committee chaired by Dr. Christopher Clayson. Your Lordships will appreciate that a licensing code can only be effective where it is in close harmony with the social attitudes of the day. The Government's task in reviewing liquor licensing in Scotland some 14 years on has been to assess the effects of changes introduced in 1976 and to ensure that our licensing requirements continue to reflect social attitudes.
Once the 1976 code had been in operation for some time it was considered prudent to monitor its 172 impact. The reforms in Part III accordingly reflect the outcome of two surveys by the Office of Population Censuses and Surveys and an extensive consultation exercise. Over 2,000 replies were received in response to the consultation and those were carefully analysed before decisions were taken.
The main thrust of the measures in this part of the Bill is threefold: first, to enhance the more civilised regime which has developed in licensed premises since 1976; secondly, to reduce unnecessary bureaucracy in the administration of liquor licensing; and thirdly, to tighten up the law where experience indicates a need for greater restriction.
On the theme of tighter restriction, the Government have been concerned that the proliferation of late night extensions in some areas has been a source of disturbance and distress to local residents and imposed heavy demands on police and medical services. It has been decided accordingly to tighten up the statutory provisions which govern the grant of extensions to permitted hours. Clause 33 requires applicants for extensions to give positive reasons for the grant of an extension and prove to the board's satisfaction that the extension would be of sufficient benefit to the local community as to outweigh any detriment to the neighbourhood. The provision thus seeks to restore the original intention of Parliament in enacting the 1976 Act that late night extensions should become the exception rather than the norm.
The consultative review also revealed widespread and unprompted concern about the problem of under-age drinking. Your Lordships will recall the Government's support for the Bill introduced last Session by the honourable Member for Clydesdale, Mr. Jimmy Hood. It aimed to prevent the sale of alcohol to minors and enjoyed wide support in both Houses. Doubts were expressed, however, in your Lordships' House as to whether the provisions were workable, and since the amending provisions carried by the House came too late in the parliamentary Session, the Bill could not progress. However, I indicated in Committee on 21st July that the Government would consider the amendments moved by your Lordships in the preparation of the licensing legislation. The views of the retail trade, health interests, churches and social work and law enforcement agencies were sought last summer on an acceptable form for controls in off-licences.
On the basis of that consultation and official discussions with the retail trade, it has been decided to introduce a provision based on the amendment moved in Committee by the noble Baroness, Lady Carnegy of Lour, and agreed by your Lordships. The measure proposed by the noble Baroness represents a compromise between the shop-within-a-shop proposal which would be expensive and onerous for the retail trade and the simple prohibition on unsupervised sales by youngsters which is considered to be of limited effectiveness. The favoured solution is to prohibit the sale of alcohol by under-age persons in off-licences with three or more points of sale and to prohibit unsupervised sale in smaller licensed outlets. I commend to your Lordships these moderate measures which seek to meet the concerns 173 of the licensed retailers and the social work and law enforcement interests.
Clause 31 dispenses with the present requirement for licensed premises to close in the afternoon between 2.30 p.m. and 5 p.m. The afternoon break has ceased to be effective by reason of the widespread grant of afternoon extensions, and the consultative response indicated public acceptance of discretionary week-day opening hours for licensed premises from 11 in the morning to 11 in the evening. We have, however, accepted the clear majority view against any increase in Sunday hours for public houses.
Clause 31 also permits off-sale premises in Scotland to open on Sundays. Sunday opening of off-sales has of course been permitted in England and Wales for some years. The Government do not feel able to maintain the present bar on Sunday opening of off-licences in Scotland and regard as anomalous the present position where off-sales on Sundays from hotels and public houses are lawful but supply by other licensed retailers is an offence.
On the theme of deregulation, Clause 32 seeks to reduce the administrative burdens on licensing boards by removing the need for a separate application for Sunday opening. Research shows that Sunday opening is now widely accepted and there is therefore less need for applications to open on Sunday to be scrutinised separately by boards.
Part III also provides the police with a power to enter registered clubs at any reasonable time without a warrant. The consultative review revealed overwhelming support for a general police right of entry to clubs and we trust that this power will be acceptable as a necessary form of control. It is in the public interest to maintain the standards of clubs and ensure that they are properly regulated.
Turning now to the remaining aspects of the Bill, Clause 39 gives effect to the Government's commitment to improving the non-custodial sentencing options available to the courts and enables the Secretary of State to meet the full cost of probation, social inquiry reports and supervision of released prisoners in accordance with national standards. Clause 40 allows him greater flexibility in the use of prison accommodation.
There are provisions in the Bill to allow an experiment to be carried out into the method of calculating fines with a view to relating them more closely to an offender's ability to pay, thus imposing a more appropriate sanction on the wealthier offender and, it is hoped, reducing the incidence of imprisonment for fine default among those less able to pay.
I now turn to the provisions of the Bill which relate to divorce and matrimonial interdicts. The more substantial of those provisions is based on recommendations made by the Scottish Law Commission. The effect of Clause 43 is to reduce the periods of separation required to establish the irretrievable breakdown of marriage. The reduction is from two years to one year where the other party consents to divorce and from five years to two years without the consent of the other party. That reflects the commission's conclusions that the present 174 periods of separation are unnecessarily long and have the effect of causing many divorcing couples to use behaviour or adultery grounds, with all their attendant unpleasantness and hostility, as a means of obtaining an earlier divorce. The Government believe that the modest amendment proposed by the commission, which received substantial public support in Scotland on consultation, will meet much of the criticism of the existing law without going beyond what is generally acceptable to the public.
Clause 45 and Schedule 4 to the Bill will establish a statutory version for use in Scotland of the draft Model Law on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law. Those provisions will apply to all arbitrations which fall within the definitions of an international commercial arbitration in Schedule 4. In addition, an arbitration agreement can provide that the model law arbitration procedures will apply even though the arbitration is not an international one. The availability of a comprehensive code for efficient arbitration will, I am convinced, be helpful to those wishing to do business in Scotland and will encourage the use of Scotland as a forum for international arbitrations. The provisions implement the recommendation of the Scottish Advisory Committee on Arbitration Law that the model law be adopted into Scots law.
The Bill demonstrates the Government's continuing commitment to the process of law reform and to the maintenance of a vigorous Scottish legal system. In that connection I should mention one further matter which was recently brought to my attention; namely, the absence in Scotland of any provision allowing evidence to be given through live television links from abroad. I am arranging for views to be obtained on this matter since a provision allowing that would, I think, be useful.
This is an extensive and important Bill. I look forward to listening to noble Lords' views and after Second Reading to those more detailed discussions which will necessarily follow at Committee stage. I am arranging for the Notes on Clauses to the Bill to be made available to noble Lords. I commend the Bill to your Lordships.
Moved, That the Bill be now read a second time. —(Lord Fraser of Carmyllie.)
§ 3.35 p.m.
§ Lord Macaulay of Bragar
My Lords, perhaps I may thank the noble and learned Lord, Lord Fraser of Carmyllie, for his detailed introduction to this important piece of legislation affecting many areas of Scottish life. I should say at the outset that I am pleased, as I am sure the House will be, that the topics have attracted a large number of eminent speakers, with no doubt varying viewpoints, including members of the Scottish judiciary and particularly the recently appointed Lord President of the Court of Session, the noble and learned Lord, Lord Emslie. His contribution to the debate, based on his vast experience as a practitioner, judge and administrator in the supreme courts of Scotland is keenly awaited by us all. That is not to say that we 175 shall all necessarily agree with what he says, but we shall treat comments from such an authoritative source with the respect that they deserve.
Before making any comments on the content of the Bill, perhaps I may say that I am not convinced —and I am sure that the House is not convinced —by the explanation tendered by the noble and learned Lord the Lord Advocate as to why the Bill should be in this form. I wish to make a protest about the fact that major issues relating to fundamental matters in Scotland are dealt with by means of the miscellaneous provisions procedure. The subjects raised cover multifarious aspects of Scottish life, ranging from charities to licensing, from divorce to major law reforms, covering rights of audience in the courts, conveyancing and confirmation procedures, judicial appointments and other related topics and reforms of the penal system. One has only to look at the Long Title of the Bill to see that it is absolute nonsense to bring all those matters before the House in one accumulated Bill.
As I understood him, the noble and learned Lord said that it would save noble Lords time in the House. As I see it from this side of the House, it will increase the time required to consider the Bill. I can assure noble Lords that they can look forward —or not look forward as the case may be —to a long and detailed Committee stage in considering the 49 clauses and six schedules, which represent major legislation and can in no way be said to be a tidying up process.
This is wholesale reform to which this type of legislation is completely unsuited. Miscellaneous provisions Bills have their uses, but, in my respectful view, this is an abuse of the system. Miscellaneous provisions Bills are notorious for burying pieces of amending legislation. It makes it extremely difficult not only for lawyers but for members of the public to see where the alterations to the law may be found. I say advisedly that to deal with those substantial issues in such a way is an insult to Scotland, and particularly to the Scottish legal system, which was one of the preserved areas in the Treaty of Union of 1707. The major reform should have been set out in a separate Bill, coupled with full public discussion prior to the publication of the Bill. We have had minimal discussion so far as concerns Scotland, and I ask: if it is good enough for England and Wales to have a Bill of their own, why are we in Scotland deprived of such a Bill when considering major legal reforms?
I do not know why the Government behave in that way. I suspect that it may be brought about by their inability to man Committees dealing with separate Scottish business in another place, so this has all been lumped into one piece, not for the reasons given by the noble and learned Lord, but for expediency on the Government's part in another place. If that is the reason, it is entirely unacceptable. The people of Scotland are entitled to an explanation of this omnibus approach to the matters covered in the Bill.
This side of your Lordships' House always welcomes any review which brings about beneficial changes. The Bill has parts which will not be opposed 176 in principle but, as is the tradition of this House, will be considered in detail during the Committee and Report stages when it is hoped that persons with an interest in the issues raised by the Bill will have made their views known in more detail. We shall be constructive and not obstructive in the hope that the Bill, like other legislation passed down from the Government for our consideration as a revising chamber, leaves this House in better shape than when it arrived.
Part I of the Bill, which relates to charities, is a forward-looking step with a view to controlling charities, informing the public of their existence and allowing the older and smaller charities, whose purpose is now of no relevance, to be altered or, if appropriate, to have their funds disbursed to a suitable substitute. There have already been suggestions that the charities will not be sufficiently identified and that information about their purposes, their accounts and the names of those involved in management, will not be readily, cheaply and speedily accessible to members of the public at points throughout the country.
There is no requirement on the Inland Revenue to keep a register for public inspection. It is a matter for the Government perhaps to consider whether, with modern computer processes, it would be possible to set up computer points at major centres throughout Scotland where people who wished to get at the information could do so quickly and cheaply. Such a facility should be central to the reform of the charity law. Any law which puts clamps on rogue charities and unsupervised collection of money by those who play on the good will of the public is to be encouraged. It can also be improved. It is to be hoped that reasonable amendments, designed to strengthen public involvement, if not accepted immediately, will be taken away for consideration by the Government. I give as an example the issue of the amount of information that may be made available.
Part II of the Bill deals with legal services. As one might have anticipated, it will provoke the most controversial reaction in view of the consequences for the legal system and, by inference, for the people of Scotland. Normally on this side of the House we should have agreed right away with many of the issues raised in Part II. But the more the changes are considered, the more we tend to the view that a system that might be suited to England and Wales is not suitable for the Scottish system of law. Questions have been posed more than once. Are the proposed changes in the first place necessary? In the second place, are they changes that will improve a system which, as recognised by the Government, has served Scotland well as part of its unique legal system?
Reading through the Bill, some very rich words strike one's eyes: rights of audience; conveyancing practitioners; qualified conveyancers; the Scottish Conveyancing and Confirmation Practitioners Board; confirmation practitioners; and so on. They sound very grand. But where is all that taking the legal system and how will it benefit the public? The answers to those questions are not easy to find. What is wrong with the present system in which solicitors practise in an open and competitive market and still 177 manage to provide the public with sound advice and help in conveyancing to a recognised high standard of integrity and independence—the two keynotes of legal practice not only in Scotland but, one would hope, elsewhere.
Those standards of integrity and independence and that sound advice must not be put under unnecessary threat. It is accepted that there is room for a form of qualified conveyancer who might operate within limited areas but under the supervision of the Law Society of Scotland so that activities are properly supervised.
The process outlined in Part II of the Bill has about it the ring of dilution of the profession which prides itself on the standards that it sets and the protection that it offers to the public. The Bill ignores the detailed educational and practical training which is demanded to qualify as a solicitor and the extra work needed to qualify as an advocate, as well as the penalties which the profession imposes upon itself. It is easy to see from the Bill where the dilution comes in. Having created new categories of person —conveyancers and licensed practitioners —the Government have to cover their backs, so to speak, in Clauses 15(9) and 17(9) by setting out rules of conduct and so on.
The rules of conduct do not have to be brought into the legislation before the practices commence. As I read the Bill, there is no obligation on the Secretary of State to make regulations because it says that he "may" make regulations. If the Government insist on making such regulations, I consider that they must change the word "may" to "shall". Before these diluted practitioners —if I may so call them —are let into the public domain, the public will have to know exactly what standard of conduct and what rules apply to them. Remembering in particular that they are dealing with people's money among other things, the public must not be left to guess what the Secretary of State might bring in at some time.
Time and again we have heard what is behind the Bill —the Office of Fair Trading. I venture to say that what is seen as fair trading between traders is not necessarily the best deal for the consumer. For the Scottish legal system, far from expanding the right of choice, which the noble and learned Lord said was a fundamental point of the legislation, the Bill will narrow the area of choice to both solicitors and members of the Bar. In Clause 21 we read that there will be extensions so that people who are not legally qualified at all can come in and practice, thus opening the door to accountants, surveyors and so on to be authorised to appear before the court.
As I read the Bill once again, it strikes me that one group has been ignored in this legislation; namely, the court. The court is entitled to a high standard of properly legally qualified people to present the legal aspect of the case, based on the evidence given by the experts within their own field. That is just another aspect of dilution.
As regards access to the courts, the same questions arise. Why is the Bill necessary? What will the new rights of audience achieve in improving the quality 178 and efficiency of the courts? How does this fit into the Scottish system? The answers to all those questions are in the negative. Advocates in the supreme courts after rigorous and demanding training and once they have acquired the basic legal qualifications provide a high standard of advocacy fearlessly and without commitment to any personal involvement with a firm or any close client involvement. The art of advocacy so practised by highly qualified practitioners is the best service that the client and the courts can obtain. The system serves Scotland well with the operation of the cab rank rule, which solicitors with offices and business commitments would have great difficulty in carrying out.
The quick and ready availability of counsel is a feature of the system. People who wish to have access to the supreme courts will have little difficulty in joining the Faculty of Advocates in our small country which has just over 250 practitioners in that field. If they want to practise the art of advocacy in the supreme courts, the door is open to them and there is very little obstruction.
In the past few years there has been an increasing number of ex-solicitors entering the Bar in Scotland. They seem quite keen to do so. There is an easy and relatively cheap two-way transfer between the two systems. We are worried about how discipline will be imposed over the members of faculty and over the new advocate solicitors. Is the dean of faculty to have power over both? If so, how will discipline be enforced and under whose rules? It is very difficult to see how that can be said to be an improvement of any kind.
I raise these matters at this stage to make a plea in general to the Government to think again about the provisions for rights of audience on the basis that they are neither relevant nor needed in Scotland. It is highly unlikely that the solicitor advocate, having attained his or her right of audience, will be able to service the courts in a way which will represent an improvement on the present system of servicing the supreme courts. Realistically, and having proceeded this far, we would be very surprised if the Government accepted my plea and took these matters away to think about them again.
The noble and learned Lord, Lord Fraser, asked about the attitude of solicitors towards this extension of the rights of audience. I can tell him that, from a personal point of view, and after discussing rights of audience with solicitors, it is difficult now to detect the apparent enthusiasm which prevailed when strident calls for the introduction of extended rights of audience were being made by the same people. It is now appreciated by practitioners that the responsibilities of being involved in the regular servicing of the supreme courts, sometimes literally on instant demand, and running an office generating business and so on, are not reconcilable functions.
I ask this question: would a solicitor advocate be guilty of misconduct if he refused to leave his office, because of the pressure of business, when asked to attend the High Court, as an advocate is asked and sometimes instructed to do, by the dean of faculty? If so, who will discipline him and on what basis? 179 Generally speaking, therefore, the rights of audience will not improve the efficiency of the courts.
I turn to the question of multi-disciplinary practices, the licensed conveyancers and the rights of advocates to form partnerships. I said at the beginning that choice was being restricted. All these matters will restrict choice. It appears that the institutions do not really want to be involved in conveyancing. However, once they are given the right it will be hard not to enter that market. Then the institutions, with their persuasive advertising, will inevitably attract house buyers and sellers away from independent solicitors. The commercial and profit motive will be reflected in the attitude of the institutions from time to time in the manner in which they advise clients.
If clients are taken away from the open competitive market of the solicitors, who obtain 40 per cent. of their income from conveyancing, that will not be a good thing for practising solicitors in Scotland. It could have a deleterious effect on many firms, particularly the small firms which have one or two partners. The result may be that some firms will be forced to close down while the institutions take over the conveyancing.
The system that we have in Scotland is too small, particularly as regards the Bar, to have partnerships formed and advocates joining in partnerships with other persons, particularly with other firms. We cannot afford to have a drain on our resources for commercial purposes. I suggest that that is behind the legislation which has been introduced. I do not wish to take up more of your Lordships' time because there are many speakers to follow. I wished however to make certain points with a view to seeing whether the Government will take another look at the proposals.
In a recent article in the Scotsman by a well respected lecturer-professor in law, the Bill has been described as the Scots' Law Abolition Bill. We trust that this is an educated exaggeration. Care will be required to ensure that that is not the effect which the implementation of the Bill will have on a legal system of which we are all justifiably proud.
§ 3.54 p.m.
§ Lord Evans of Claughton
My Lords, it is with an understandable feeling of trepidation and diffidence that I, as a Welsh solicitor practising in England, rise to speak in this debate. Unfortunately, for reasons that I am not aware of, Scotland has been particularly unlucky in having solicitor Peers. Today, I am following such distinguished lawyers as the noble and learned Lord the Lord Advocate and the noble Lord, Lord Macaulay. I hope that your Lordships will bear with me and not think that this is a small way for an English solicitor to get his own back on a Scottish Lord Chancellor for what he is trying to do to our English system.
Seriously, however, I believe that we who practice in England, and particularly those of us who concentrate on conveyancing, have a very great deal to learn from the existing Scottish system. Very frequently we hear that we should emulate the 180 Scottish conveyancing system and that it has a great deal to teach us. Attempts have been made to import parts of the Scottish law into the English system. It is on that basis that I speak this afternoon.
I intend to concentrate on Clauses 14 to 19 of the Bill. I am aware that from the outset of the period of consultation, when the Secretary of State for Scotland issued his consultation paper entitled The Legal Profession in Scotland on 13th March 1989, its terms were less positive, and more conducive to real consultation than the consultation paper for England and Wales of the noble and learned Lord the Lord Chancellor. However, when one reads it, it is becoming clear that the same questions are being asked as were asked by the noble and learned Lord the Lord Chancellor.
In due course the Secretary of State for Scotland issued his White Paper The Way Forward which I submit compared poorly with the response of the noble and learned Lord the Lord Chancellor to the English consultation paper which is entitled Legal Services: A Framework for the Future. I agree with the strictures made by the noble Lord, Lord Macaulay, that it is a pity that such important legislation for Scotland should be contained in a miscellaneous provisions Bill.
Though the proposals are in a much shorter form, apart from the restructuring of the work of the English courts, they are remarkably similar for both England and Scotland. I am encouraged by the attitude which has been adopted not only by my own Law Society in England and Wales but also by the Law Society of Scotland in welcoming some of the changes which are proposed. It would be wrong to believe, as many laymen do, that the legal profession opposes any change of any description. There are aspects of both Bills which deserve widespread support. Sadly however, and equally important, there are aspects of both Bills —I am here concerned with the Scottish Bill —which cause me, and I am sure very many others, very real concern.
It is worth while to look back over a period of five years. In 1984 the Government embarked on a consultation exercise and issued a consultative paper in Scotland entitled Conveyancing by Employed Solicitors in Scotland. The thrust of that paper was to consider whether it was appropriate in Scotland for banks and building societies to be entitled to offer conveyancing services to their customers through the medium of employed solicitors. The Law Society of Scotland responded robustly to that consultation paper. It suggested that the interests of the public would not be properly served; there would be inadequate protection and control; there would also be grossly unfair competition. The Law Society also felt that there was more than adequate competition from the then thousand-odd firms of private practitioners in Scotland.
At that time those arguments must have been very persuasive because the Government chose to permit licensed conveyancers in England and Wales as many of us know, and not so much to our cost, but with some regret. Through the Building Societies Act 1986, subject to rules which were never introduced by the noble and learned Lord the Lord Chancellor, banks and building societies were permitted to 181 provide conveyancing services. No such provisions were made for Scotland. Scotland does not have licensed conveyancers, and Scotland is specifically excluded from any provision at the moment relating to solicitors employed by banks and building societies providing services to their customers.
What has changed in the four years that have passed to convince this Government that it is now necessary for banks and building societies to provide conveyancing services?
I have searched in vain for any piece of evidence, public demand or change of circumstance which would justify the proposals set out in this part of the Bill. What has changed is that in Scotland, as in England, the provision of conveyancing services is more competitive than ever. The competition comes from 1,000 firms competing fiercely among themselves to provide a high quality of conveyancing service.
At the time of the Royal Commission which considered the delivery of legal services in Scotland, a survey carried out by that body disclosed, noble Lords may think surprisingly, that 75 per cent. of the public were satisfied with the quality of the services provided by their solicitors. That has now changed. The Scottish Consumer Council recently carried out a survey. The opinion poll showed that 87 per cent. of the public in Scotland were satisfied with the services that they received from solicitors in the conveyancing field.
That does not demonstrate a great need for substantial change. But who wants a change? —apart from the Government, very few people. The consultation process in Scotland produced a wide range of responses from many people and bodies involved in the delivery of legal services. Although I have not read them all, I am advised that only the Building Societies' Association, the Consumers' Association and the National Association of Estate Agents wanted a change in the status quo. However, it is significatnt to note those three bodies are based in England and have based their responses on their English experience and, perhaps one might add, their natural hunger for profits.
The other people and bodies in Scotland who responded almost unanimously supported the idea of the status quo or there was in the interests of choice and competition an admission that there might be a need for licensed conveyancers. I cannot imagine that my friends in the Law Society of Scotland will feel strongly if licensed conveyancers are permitted to enter the field. They have made little impression in England and have found that the competition from solicitors is pretty fierce.
What is most significant is that the Scottish Consumer Council, to which I have alluded, opposed the idea of authorised practitioners because it was concerned about the quality and delivery of service to individuals but, most importantly, the prejudicial effect that banks and building societies undertaking those services might have on the delivery of other legal services in rural areas. The noble Lord, Lord Macaulay, touched upon that matter earlier.
182 The banks and building societies did not wish to change, although they indicated that they might require to reconsider their position if competition forced them to do so. The Keeper of the Department of Registers in Scotland, a man who I am advised knows more about conveyancing and the quality of services than anyone else, expressed concern and caution on the grounds that conveyancing is not easy. Indeed, it is difficult and he is frightened that less well qualified people may find the whole system difficult and that it may create problems for his department and difficulties for the clients. I was greatly encouraged in my view when I read an article in Scotland on Sunday published on 28th January. It disclosed that not all the banks and building societies in Scotland wished to undertake conveyancing work.
Again I ask the question: who wants the changes? The answer is obvious; the Government want some kind of common practice on both sides of the Border. But the practice of conveyancing in Scotland has always been different from that in England. In the past the Goverment have recognised that fact and have seen fit to distinguish between the systems and not introduce in Scotland licensed conveyancers and even the possibility of banks and building societies undertaking the work. What the Government are now doing appears to be based on dogma rather than on public need.
I am not alone in holding those views because there is widespread satisfaction in Scotland with the services provided by the legal profession. It is significant to learn that the Halifax Building Society, the biggest building society in these islands, has indicated that it had no plans to offer conveyancing services to its customers in Scotland, as opposed to offering them to customers in England. The two biggest Scottish building societies, the Dunfermline and the Scottish, have stated publicly that they do not propose to provide such services for their clients and would rather stick to doing what they do well. I have little doubt that if Scotland on Sunday is to be believed, many other bodies will take a similar view.
Therefore, if there is no demand by the major players, what is the justification for the proposals? The Government would say that it is consumer choice. The consumer is not daft and he is capable of choosing for himself. It has been said before, and doubtless it will be said again, that the man in the street may have difficulty in differentiating between the expensive and expansive advertising of banks and building societies. From experience as a solicitor for many years, I can tell noble Lords that the prospective purchaser wants an assurance that he has funds at his disposal to buy the house and that he will have a good title when he has bought it. He is unable to judge the relative merits of the services of individual banks or building societies. But doubtless with a variety of inducements he will be persuaded that he can obtain a service from the banks and building societies. I suspect that he will not find it equal to that provided by the legal profession with its experience, knowledge and integrity.
In response to the Secretary of State's consultation paper, the Law Society of Scotland has submitted its 183 own response entitled Public Protection: Professional Independence. In Chapter 6 it set out its arguments against conveyancing by banks and building societies and recommends the retention of the status quo. I am happy to support the Scottish Law Society's approach. I commend it for its stance in principle. It is unwilling to accept the inevitable and try to negotiate but it wants to stand up and maintain its present legal position.
In Scotland there is no need for banks and building societies to undertake conveyancing work. The plain fact of the matter is that the institutions do not wish to offer it. In Scotland there are properly trained solicitors and adequate consumer safeguards. Under a recognised and regularly enforced code of conduct they practice in the best interests of the consumer. I believe that that is a good enough reason to reject Clauses 14 to 19 to which I have referred.
§ 4.8 p.m.
My Lords, I am deeply conscious of the privilege of rising in your Lordships' House to speak for the first time. I do so with diffidence and, I must confess, a degree of apprehension. I know that I must do my best to be uncontroversial about a subject on which noble Lords will not be surprised to hear I hold strong views.
I hope that the House will scrutinise with special care the provisions in the Bill which cause me anxiety. I have in mind the controversial provisions in Part II of the Bill and in particular those concerned with rights of audience in the Court of Session and the High Court and with partnership among advocates.
In a major way Clauses 20 and 23 innovate upon a system which for centuries has enabled the superior courts of Scotland to maintain high standards of judicial performance not only in the interests of the litigants but in the development of the law. I venture to suggest to your Lordships that a system which is good for the courts is a system which is good for the litigants and for the continuing vitality of the law.
I add to that suggestion a further suggestion that your Lordships' House may well be very slow indeed to permit any change in that system to take place if, as a result, the change would weaken the courts in the proper performance of their judicial function.
The system which I am talking about is that litigation in the Court of Session —I take that court as an example —is conducted within the College of Justice which was established in Scotland in 1532. The judges are the senators of the college and those who plead before those judges have been admitted by the court to the public office of advocate and membership of the college on completion of the final hurdle; namely, the vital training of pupillage, which is full time. Discipline within the college is positive and swift, and your Lordships' House may very well be aware of the important role which the dean of faculty plays in securing the maintenance of that positive and swift discipline in the interests of the court.
The strength of any court is not merely a reflection of the quality of its judges. It is, to a very significant extent, also a reflection on the quality of those who 184 plead before it. The Court of Session in particular—I can speak of that from long experience —is heavily dependent on the quality of its advocates and furthermore upon the mutual respect which exists between Bench and Bar and in the relationships of advocates to each other, relationships which involve a high degree of trust.
Of course, I do not suggest for one moment —and only a fool would —that all advocates measure up to the exacting standards required of them by the Court of Session and the High Court. Some do not or cannot. Those who fall into that category do not usually survive for long in significant practice and indeed will not or at least should not be chosen by sensible solicitors to conduct proceedings on behalf of one of their clients. However, the great majority, by their training, discipline and full-time devotion to the art of advocacy contrive to display a high standard of professional skill, competence and integrity; and (dare I say it?) the best can stand favourable comparison with the outstanding advocates in the common law jurisdiction.
It would be a mistake to assume that there is no material difference between the standard of pleading in the sheriff courts and that in the Court of Session and the High Court. Experience of a lifetime in the law of Scotland at all levels, including the sheriff court, has convinced me that the difference is real and striking. I do not say that in any spirit of criticism of solicitors, for in my opinion no one can really expect to acquire and develop the skills of superior court advocacy by practice in the sheriff court which is, of necessity, part time.
We are concerned with rights of audience. The question is: why are we concerned with rights of audience in this Bill? What is the justification for Clause 20? I am glad to hear that it is not suggested that the system which I have been talking about does not work well. I have not yet heard, although it may still happen, that particular attention has been given to the best interests of the courts. Indeed, the only justification, as far as I can tell, for Clause 20 is that if some solicitors are granted rights of audience in the Court of Session and the High Court, that will give to some clients at least a wider choice of representation. At the moment, your Lordships will understand that a client's choice is an informed choice, on the advice of his solicitor, of the full-time professional advocate who is best equipped or best suited for the conduct of the particular proceedings.
Is it perhaps likely to create a risk, if Clause 20 passes into law, that a litigant may find himself making an uninformed choice by allowing his own solicitor to conduct proceedings in the Court of Session? Your Lordships may feel that there is something in the view that in a matter of such importance an uninformed choice is hardly a choice worth having. Clause 20 envisages that those solicitors who wish to qualify for rights of audience in the superior courts must, among other things, undergo a course of training in superior court pleading and have had certain experience over a period of time in practice in the sheriff court.
A number of questions seem to arise and I shall suggest some of those to your Lordships. Is experience, over however long a period, of part-time 185 sheriff court practice likely to offer a fair basis on which to make a judgment of an individual's competence to plead in the superior courts? Can any academic course of training in advocacy, if such a thing can be imagined, be expected to match in any way the training of pupillage which advocates undergo, conducted as it is in connection with real and live work before the courts?
Does your Lordships' House find it in any way worrying that the Executive are taking so many new powers in relation to matters which hitherto have been within the province of the courts and the Lord President? Are solicitors who qualify —I echo in a sense what was said by the noble Lord, Lord Macaulay of Bragar —for those rights of audience to practise under the same rules of conduct as apply to advocates and are they to be subject to the same discipline?
In this speech all that I can do, since it is a maiden speech, is to suggest some of the questions which I believe must be answered. I shall stoutly resist the temptation to offer the obvious answers which at least commend themselves to me.
I pass over Clauses 21 and 22 and come very briefly to Clause 23, which is of some importance and significance. I wonder what is the justification for it in this Bill. I have always believed that advocacy is the function of a skilled individual answerable for himself alone. What are the implications for the cab rank in Scotland, which is no bigger than it should be, if advocates are able to form partnerships with each other, because, as a matter of law, partners cannot act against each other? What are the implications for the cab rank rule if advocates form partnerships with solicitors? What are the implications for the control of members of the faculty by the faculty if some are partners in solicitors' firms? What are the implications for many of the aspects of the vital and interlinked relationship between Bench and Bar about which I spoke earlier?
Those are just some of the questions posed. The noble Lord, Lord Macaulay of Bragar, has mentioned others, but perhaps the most important question of all for your Lordships' House is this. Is the combined effect of Clauses 20 and 23 likely to carry the risk of the disintegration of the College of Justice? If it does, it will be a very sad day for Scotland.
§ 4.20 p.m.
§ Lord Stodart of Leaston
My Lords, the noble and learned Lord, Lord Emslie, has been a Member of your Lordships' House since 1980. Thus many of your Lordships have waited for 10 years to hear an example of the wisdom which he has dispensed during his notable term of office as Lord President of the Court of Session. My thoughts are winging, as they often do, to certain rooms along our corridors where is available a certain magical product of Scotland. On certain bottles are the words "10 years old". Those who sip from those bottles invariably want more; we hope, therefore, that we shall hear many more contributions from the noble and learned Lord.
I cannot but regard this Bill as a joint runner with the English Bill which has occupied your Lordships 186 on several nights recently. It is true that the contents of this Bill are more widespread, taking in the parts about charities and licensing, but I am bound to say that I think the contents of Part II are surely of enough importance to merit a Bill on their own when one considers the prestige which the Scottish legal system enjoys. I want to deal with that particular part speaking as one of the many ordinary citizens, clients, consumers or customers, call them what you will, whom the Bill will presumably benefit. In fact I regard mine as the still small voice of the layman amid the heavy artillery of the legal barrage.
With all respect to the noble and learned Lord in what he said and the reservations that he has about solicitors appearing in the Court of Session, I would not take exception to my own solicitor having the right of audience in that court provided that he wishes it and provided that he is approved. Nor would I resent his receiving a judicial appointment to the supreme court, again if he were regarded as qualified. However, I find peculiarly few signs of any demand among solicitors for this. I do not know whether my noble and learned friend the Lord Advocate has witnessed any ranks of Writers to the Signet marching up the Mound brandishing their quill pens on their way to Parliament House. I am bound to say I have not, though I recognise that, as it often turns out, things may be different in Glasgow.
On that subject one solicitor has written a remarkably sensible letter to me on this subject in which he says:We country solicitors would prefer to continue with the existing arrangements where we are the GPs and the advocates are available to us as consultants. Our libraries are limited and it is convenient, and relieves us of a heavy responsibility if we can consult an advocate. So if the proposed reform means that there will be less work for advocates and therefore fewer of them I am not in favour for it will restrict my choice of consultants.Note that in any case the relationship between solicitors and advocates in Scotland is much less formal and not at all to be compared with the relationship between solicitors and barristers in England".What worries the solicitors, and country ones in particular, all across Scotland from Peebles to Perth and from Inverness to Ayr, is the invasion of the conveyancing field to which reference has already been made. I immediately ask why. They say, quite frankly, that it is their most profitable line of business. They make no bones about it. I therefore ask whether some competition would be a good thing. On the face of it, it surely would be, but we are talking here of the small firm in a country town where clients do not include the finance houses which rub shoulders in Charlotte Square with the fashionable Writers to the Signet.
A country solicitor's fees from conveyancing, so they say, enable him to cross-subsidise what he spends on making wills and advising on the problems which many individuals bring to him. If this method of financing his business is denied him. I am assured that many country firms will be unable to continue —this at a time when it is my impression that many people find that they get more personal attention from a firm of solicitors such as I have described than from the city firm with its 20 or 30 partners.
Perhaps I may make a further point. A bank or perhaps more likely still a building society will no 187 doubt assure a client that he can place total and absolute reliance on the advice which its solicitor will give him. I am quite certain that that will be said in all good faith, but there cannot but be a conflict of interests in such a circumstance. It would be the same situation which inevitably applies if I as a farmer am advised by a firm with a commercial interest as opposed to the local college of agriculture which has none.
I conclude by venturing to suggest what the client or consumer expects of our legal system. He wants any business which he transacts with his solicitor to be carried out efficiently, expeditiously and at reasonable cost. On the subject of cost, unless solicitors are in a class all on their own, with no experience of bank overdrafts, their costs must be influenced in these days by interest charges. I have been amazed how contented some solicitors seem to be not to send out a request for fees to be paid for months or even years.
Can speed and quality of advice be achieved? A case in which I had a family interest a few years ago involved three firms of solicitors. For once the Inland Revenue, was not involved. That department probably causes the biggest delays in settling legal matters. Documents and letters were sent to the three firms, from one to the other. Each firm kept the letters, before replying, for never less than two months. A resolution was not reached for between eight and nine years. That situation was totally unacceptable to me. I state that quite bluntly. The Law Society of Scotland, whose aid I tried to invoke, found it extremely difficult to help.
In the English Bill greater speed is being claimed by spreading the load more equally between the High Court and the courts below. Was this not done in Scotland some years ago when the sheriff courts were enabled to hear cases which previously had been limited to the Court of Session?
I echo what has already been said. What causes the change? Will it be beneficial? I only hope that the reason for the change is not in order to follow in the wake of English legislation. If that were the reason, I say quite frankly to my noble and learned friend that in these times it would be the most imperial political folly.
Finally I should like to say a word about the ombudsman, who is to have a wider remit than the lay observer. Will the powers be greater? I understand that for some reason they are not to be as great as those given to his or her counterpart in England and Wales. I recall that the first lay observer was Miss Herbison, whom many of us knew in another place. She and the most recent lay observer, on demitting office, both registered their disappointment that so few of their criticisms had been acted upon. I hope that the ombudsman has better luck.
§ 4.33 p.m.
§ Lord McCluskey
My Lords, I am delighted to be able to join the noble Lord, Lord Stodart of Leaston, in offering congratulations to the maiden speaker. It was my privilege in December 1965 to second the nomination of George Emslie to be Dean of the 188 Faculty of Advocates. For the last five years I have served under him as a judge in the Court of Session. No lawyer in Scotland is more distinguished or more knowledgeable than he. He has played a very large part in improving and developing the law of Scotland and in improving the delivery of services by reorganising the courts. We can look forward to his immensely valuable contributions in the course of the Committee stage of this sad and misbegotten Bill.
The Bill contains assorted provisions, some which I approve of and some which I think are quite wrong-headed. As the Chairman of a major national charity in Scotland, the Scottish Association for Mental Health, I welcome most of Part I. As a responsible citizen, I approve of the principle behind Part III, which introduces further controls over liquor licensing. As a supporter of stable social structures, I think that Clause 43, which deals with the periods of time before divorce is allowed, goes much too far. As a judge, I welcome the greater flexibility that is to be given to the courts in relation to probation and community service orders, unit fines and judicial factors.
However, as a Scots lawyer with a great respect and admiration for our distinctive legal system and traditions and the professional structures that we have fashioned over the centuries, I deplore utterly the victory of the competition theologists of the Department of Trade and Industry over that tradition —a victory which is made manifest in Part II of the Bill. As a member of your Lordships' House I am in an impossible position. The Bill is written round no single principle or set of principles which, by voting, I can approve or disapprove. Some of the provisions in Part II are of real constitutional significance. It is constitutionally obnoxious to put them all into one law reform (miscellaneous provisions) Bill.
At Second Reading we are permitted to talk about the Bill, but we are not permitted to vote against it. It may be said that we can come to Committee or Report stage and then vote against parts of the Bill. That is not a practical proposition. We are always told that in Committee we should not move wrecking amendments against the principle of a Bill. In any event, many noble Lords who practise law in Scotland, whether at the Bar, on the Bench or otherwise, are not able to attend a Committee stage in London. We are effectively deprived of our right to register our protest against particular parts of the Bill. It is entirely wrong that a form of Bill that is appropriate only to adjustments or reforms to the law should be used to effect changes in the constitution.
I shall concentrate my observations on Part II of the Bill. It is the most important part and the part which is likely to do real and irreversible damage to the legal system in Scotland. Part II confers on the Secretary of State no fewer than 20 new powers in relation to the legal profession, including the courts. He has powers to appoint people, to dismiss them and to pay them. He has the power to make regulations, to put a veto upon the regulations made by other persons and bodies, regulating the training, the conduct, the professional rules and the structures of those who are to practise in the courts or to 189 practise as lawyers or quasi-lawyers for the public. It confers powers upon the Secretary of State, if he is so minded, to put his own placemen into various boards and other bodies, in particular the Conveyancing Board. If he chooses to do so, he can appoint as temporary judges persons who have practised in the Court of Session and the High Court of Justiciary for only five years. In my view the new powers amount to a frightening extension of the power of the Executive over the legal profession and the courts. That extension of the power of the Executive in this field is unnecessary, unwarranted and dangerous.
I shall not repeat the objections in principle to the extension of rights of audience which I stated last year when we debated the legal profession in Scotland. I should like to repeat my conviction, which echoes a question that was asked rhetorically by the noble Lord, Lord Stodart. The Secretary of State would never have dreamed up these proposals for Scotland had it not been for the fact that, for reasons that had nothing to do with Scotland, the Government decided to reorganise the English legal profession. We have been sucked into a process which stems from problems and circumstances which are absent from the Scottish legal scene. Neither the White Paper nor the Green Paper referred to any evidence that the problems to which the English proposals were directed existed in Scotland. All that the Secretary of State could say in response to that undeniable fact was this, in a rather pathetic sentence in the White Paper:It is the function of Government not merely to respond to complaints or problems but also to take the initiative where there is an opportunity to improve on existing arrangements.Roughly translated into English, that means: "It is true that nobody wants these changes, but we have decided to make them anyway".
Clause 21 was not mentioned by the Lord Advocate when he introduced the Bill, no doubt because he is deeply ashamed of it. The wrong-headedness of the Government's proposals is most evident in Clause 21. Any professional or other body can apply for rights of audience in any court for any of its members. That applies to the Royal Institute of British Architects, the Scottish Citizens' Advice Bureaux, the Orange Lodge, the Showman's Guild and the Licensed Victuallers Association, all of which are from time to time concerned in litigation in our higher courts. All these bodies and their members are encouraged to think that if they produce a scheme they may be allowed to address not just the district court but the High Court of Justiciary and the Judicial Committee of this noble House.
The Lord President will have solemnly to consider each such scheme, however daft the whole idea may appear to him to be. As the Explanatory Memorandum makes plain, he is to receive no extra resources for this task and no extra staff to assist him in this or any of the other tasks that will be laid upon him. The Lord President has at the moment one personal private secretary, who is not a lawyer but is of the grade of junior executive in the Civil Service. He is assisted part time by two counsel in relation to his rule-making function. He is supposed 190 to undertake all these new responsibilities without additional staff. I want the noble and learned Lord the Lord Advocate to answer two questions when he comes to reply. First, will he confirm that I am right in saying that the Bill does not contemplate making extra resources available to the Lord President? Secondly, have the Government asked the Lord President whether he can perform this function with the resources available to him?
To continue with Clause 21, any decision of the Lord President under the clause is subject to judicial review. It is furthermore subject to veto by the Secretary of State. He can in important respects rewrite any scheme which is produced and approved by the Lord President under that clause. Even within this outstanding piece of folly we find something that goes even further. Laymen may be given the right to practise in the High Court of Justiciary. That is plain from the Bill. Can the Lord Advocate name one lay body in Scotland with non-lawyers as members whose members might suitably be given the right to conduct jury trials in the High Court of Justiciary? I hope that he will answer that question when he comes to reply. I hope that I am still able to be here when he does as I have to catch a plane back to Scotland in order to be able to perform my duties in Edinburgh tomorrow.
Even if accountants, tax consultants and town planners are to be given rights of audience, what will happen when they confine a case to a matter of taxation or town planning but the defenders raise questions of fraud or of prescription which are not within their field of competence? Are they then to continue the litigation, or are they not?
I should like to refer to the Hamlyn lectures given in 1964 by the distinguished American scholar Dean Griswold. He looked at the history of the introduction of laymen into the courts of the United States. When speaking of allowing laymen to plead in those courts, from 1790 through to the 20th century, he said:This overzealous democratisation may well be said to be the chief cause of the major problems which have confronted the law and the legal profession in the United States down to the present day".He quoted another distinguished academic, Dean Pound:The harm which this deprofessionalizing of the practice of law did to the law, to legal procedure, to the ethics of practice and to forensic conduct has outlived the era in which it took place and still presents problems to the promoters of more effective administration of justice".The author finished by saying:You are fortunate in the United Kingdom that you have been spared such excesses of democratic zeal".Alas, my Lords, we are to be spared no longer. The real truth is this. Clause 21, if it is enacted, will never be brought into force. No Secretary of State could be so foolish as to introduce such a provision. I trust that any self-respecting law officer, if the Secretary of State introduced it, would resign.
I have already explained why I disagree with Clause 20, which was mentioned by the noble and learned Lord, Lord Emslie. What I find particularly distasteful about the scheme in the Bill is that after the Council of the Law Society of Scotland has 191 drafted rules about training, experience, knowledge and conduct required of solicitor advocates, and the Lord President of the Court of Session has then studied and approved those rules, the Secretary of State can veto them after consulting the Director General of Fair Trading. An English lawyer and his fellow DTI civil servant can persuade the officials of the Scottish Home and Health Department to advise the Secretary of State to disapprove the rules which have passed the Council of the Law Society of Scotland and the Lord President of the Court of Session. That is an enormous shift of power from the judiciary and the legal profession to the Executive and to the consumer-oriented officials of the DTI.
I have great respect for Sir Gordon Borrie, whom I have known for many years. He himself delivered the Hamlyn lectures in 1984, entitling them "Bold Spirits and Timorous Souls". When he invited me to Birmingham University some years ago to speak on Scots law, he confessed afterwards that he knew as much about the Scottish legal system as he did about the laws of the Medes and Persians. We in Scotland have always felt that the DTI has displayed an unfamiliarity with, and a kind of hostility to, Scots law. It is a sad day for Scots law when the DTI can get to the Secretary of State's ear after the Lord President and the Council of the Law Society of Scotland have finished their task. The final decision on rights of audience in Scotland's courts, criminal and civil, is given to an elected politician advised by English lawyers and civil servants.
Subsections (9) and (11) of the new Section 25A amount in my view to a constitutional monstrosity. I hope and trust that they will be removed. We do not need Clause 22. I acknowledge that under the common market provisions there are certain reasons why one moves in this direction. But the legal systems north and south of the Border are quite different. It is already difficult in Scotland to preserve opportunities for people to advance both in industry and in the professions and to stay in Scotland. This provision allowing English and Welsh lawyers to practise north of the Border is likely to increase the power of the big London-based legal factories —the big firms—to diminish the range and quality of the work available to those who choose to stay in Scotland. Of course the common market allows German lawyers, French lawyers, Greek lawyers and Italian lawyers to come to Scotland, but they do not come. The English will come, and we will suffer for it. The Scottish legal system will suffer for it and will, through time, be severely wounded by this provision.
There are other matters which I would hope to address in Committee if it is possible for me to come. I should like to say a word about the other important provision mentioned by the noble and learned Lord, Lord Emslie. I refer to Clause 23 in relation to partnerships and multi-disciplinary partnerships. I know of no one —if the Secretary of State or the Lord Advocate can name anyone I shall be interested to hear it —who wants to see advocates entering into partnership with other advocates, solicitors, accountants, town planners or English 192 solicitors. The Faculty of Advocates put up an extremely powerful argument against this proposal after the Green Paper was published. The Council of the Law Society of Scotland put up similarly powerful arguments against the multi-disciplinary partnership proposal. These arguments have simply been ignored. The Secretary of State says on page 5 of the White Paper that he has considered them and that he rejects them. There is not a word as to why he rejects them.
The structure of Clause 23 is that any rule made by a professional body which prohibits or restricts such a partnership is to be of no effect unless it is positively approved by the Secretary of State. So again he has a veto to override the Lord President and the professional bodies, and again after consulting the Director General of Fair Trading.
Clauses 14 to 18 deal with conveyancing. They are deeply flawed. We are told nothing in the Bill about what has to be done to demonstrate competence, integrity and knowledge in order to prove that one is a fit and proper person, to quote the words of the Bill. The board, which has great powers, is a creature of the Secretary of State. He appoints and dismisses every one of its members. There are no rules in the Bill laying down the minimum or special qualifications for membership of the board. The very bareness of this part of the Bill shows that the matter has not been fully thought through.
In conclusion, perhaps I may say that my distaste for Part II of the Bill rests upon a judgment that it ignores history, tradition and common sense. The arguments of the profession and the conclusions of the Royal Commission —which I hope the noble Lord, Lord Hughes, will mention in his speech —have been swept aside. The Bill is doctrinaire in the worst possible sense. In my judgment it will do grave and possibly irreversible damage to the legal system. It will confer no discernible benefit upon the public, the profession, the litigant or the house buyer. The noble and learned Lord the Lord Advocate and the Secretary of State probably know that as well as I do. I regret that the Bill has been presented to the House in such a way that I cannot register my distaste by a vote.
§ 4.50 p.m.
§ Lord Hughes
My Lords, I shall begin by joining the noble Lord, Lord Stodart of Leaston, and my noble and learned friend Lord McCluskey in expressing pleasure that the noble and learned Lord, Lord Emslie, has broken his silence of the past decade. It is many more years than that since I first met the noble and learned Lord. It was when this House was considering a Scottish provisional order. He appeared for one of the parties arguing against the provisions contained in part of that order. It is perhaps an indication of the quality of his advocacy at that time that the committee in its entirety accepted the views he expressed and that that part of the order was not implemented. I too hope that we shall enjoy the benefit of his experience during the Committee stage of this Bill. 193 When I was a Scottish Office Minister I had the misfortune in three successive years of having to handle a legal miscellaneous provisions Bill. At that time I did not have the advantage of a Scottish law officer in the House. Of course, it would have been quite inappropriate to ask an English law officer to help out, because I have the feeling that had I done so he would probably have known even less than I did about the matter. However, the task was comparatively easy because these were just a ragbag of items, all of which in themselves were worth putting into legislation, but which would never have justified a Bill on their own account.
The noble and learned Lord the Lord Advocate justified the Bill as being a proper one, although it contains two major changes in the law of Scotland. I must agree with my noble friend Lord Macaulay of Bragar and other noble Lords who spoke against this type of legislation. My noble and learned friend Lord McCluskey mentioned the Royal Commission of which I was chairman. I do not intend to apologise for quoting from what the report said on two matters. It is upon those matters only that I wish to speak. The first matter is conveyancing and the other is rights of audience. In part I shall be agreeing with my noble and learned friend Lord McCluskey, and in part I shall be disagreeing with him. I say that because I am not sure that he agreed with the Royal Commission on conveyancing. However, it is obvious that he, the noble and learned Lord, Lord Emslie, and my noble friend Lord Macaulay of Bragar agree entirely with the view of the commission on rights of audience.
However, perhaps I may first refer to what the commission had to say on conveyancing. I shall start by referring to paragraph 9.37. It reads:Such information as we have been able to obtain suggests that conveyancing may be for many firms a very profitable part of their business. We see no compelling reason, however, why the buyers and sellers of houses should have to pay legal fees which in effect are subsidising other kinds of legal business. A somewhat different argument that has been advanced to us by the Law Society in oral evidence is that any high profits in conveyancing are made on the more costly houses and that these compensate for the low or nil profit made at the lower end of the market where the purchase of tenement flats, for example, often involves complicated or time-consuming conveyancing".However, times have changed; even a tenement flat is now not a low price item. Indeed, I had experience of that recently. I had a two-fifths interest in a house which was sold. My share of the sale price was £750; but what I received at the end of the day was £450. Therefore, there was no nil profit in that particular transaction.
The commission went on to say:The crux of the matter, however, is whether the public interest would be better served if the conveyancing monopoly were to be broken. The factors that we have examined in the immediately preceding paragraphs do not in our view justify retention of the monopoly. Before finally concluding in this sense, however, we felt it necessary to consider whether the breaking of the monopoly might lead to some legal firms, particularly in rural and relatively remote areas, losing some conveyancing work and thereby being forced out of business. We doubt very much whether this would happen; but even if it did, we would not regard this as a compelling argument in favour of retaining the monopoly. If it were in the public interest that a legal firm should be maintained in a particular area, this could better be secured through a State subsidy rather than by high charges for particular clients".194 The commission continues in paragraph 9.39 to say:Our conclusion is, therefore, that the case for the legal profession retaining the present monopoly has not been established".Further, paragraph 9.31 states that,We considered whether to recommend the establishment of a new profession of conveyancers to share the monopoly with solicitors. Admission to the profession would be conditional on the applicant satisfying prescribed standards of competence or obtaining a prescribed qualification. Members of the profession would, like solicitors, be required to practise independently of any other commercial undertaking. A new profession would, like any other profession, evolve rules about ethics and the handling of complaints as well as meeting requirements for insurance and for safeguarding clients' monies. In a country as small as Scotland, however, it seemed to us that evolution of such a new profession would take many years; and that in any event the end we had in view —the provision of conveyancing at competitive prices—could be more quickly and effectively achieved by other means. We decided, therefore, against recommending the creation of professional non-solicitor conveyancers who could set up in practice on their own account".Perhaps I may say at this stage that many of the recommendations of the Royal Commission were not directed towards action by government; they required action by the Law Society of Scotland —a body which, up to that point, would not have been entered as a candidate for speedy action in any direction concerning its affairs. However, I must say that when it comes to implementing the commission's recommendations, the Law Society has left the Government standing. Much of the competition which is now available in connection with conveyancing exists because of changes which the Law Society has made in the rules which make possible, for example, advertising by solicitors. There is also a degree of competition.
I remain convinced that the commission's recommendation that the monopoly should be broken is justified because, with their competitive attitude nowadays, solicitors are in a better position to stand up to competition from banks and building societies or any other professional organisation. I forbear from reading other parts of the report because I have given the Royal Commission's main conclusions on that point.
I turn now to rights of audience. The first part that I wish to read states:A considerable weight of legal opinion was, however, in favour of extending the rights of audience of solicitors to enable them to appear in the supreme courts".The noble and learned Lord the Lord Advocate said that he was surprised that the Law Society had had a sudden loss of enthusiasm for extending rights of audience. It has now; but in 1979, which is what I am now going to quote:We had the unusual experience of the Law Society, on the latter issue, submitting a divided view in their evidence to us; indeed, when they gave oral evidence to us on this topic, they included representatives who argued strongly in favour of extended rights of audience for solicitors, and others who as strongly and sincerely argued that this would be a retrograde step and not in the interests of justice. The majority view, however"—that is, the majority view of the Law Society —was in favour of extended rights of audience for solicitors who wanted it in the Outer House of the Court of Session and also in the High Court of Justiciary".Then:Those representatives of the Law Society who argued in favour of extended rights of audience conceded, as we understood it, 195 that solicitors would not operate the cab rank principle. We are not surprised at this. The nature of solicitors' business might make it impractical for them to do so. We think, however, that competition in the supreme courts between the two branches of the profession, one of which could pick and choose its clients and the other of which could not, might lead to undesirable results".Further:Finally, on this matter, we have considered the end result of extending rights of audience. It is impossible to predict what would happen with any confidence. It may be that very little use would be made of the right, in which case an alternative to the existing system would not be justified by any substantial results. It may be, on the other hand, that the right would be very widely used. If it were, the result would inevitably be some erosion and perhaps the eventual extinction of the Faculty of Advocates".It is nearly 15 years since the commission was set up and 10 years since it reached its conclusions. If I remember correctly, there was a strong demand, especially from Glasgow solicitors, to have rights of audience. Of course there are even more lawyers in Glasgow than there are in Edinburgh —perhaps that is not so, but they are running neck and neck at worst. I do not know how many practising advocates there are today, but when the Royal Commission met, out of some 300 advocates there were 139 practising in the courts. If some 20 or 30 Glasgow solicitors decided that they wanted to exercise their rights of audience, the advocates' profession would not meet death by a thousand cuts but there would be a sudden diminution of its rights which would inevitably increase as the years went by.
The Royal Commission decided unanimously against fusion. If we are to have fusion of the two branches of the profession it should be done deliberately and not by the accident of the passage of time.
Finally, our conclusions on conveyancing were carried with one dissentient voice; our conclusions on rights of audience were unanimous. The commission's membership included one senator of the College of Justice, one QC, two solicitors, a trade union official who had a Batchelor of Law degree but who did not practise and four laymen. So to have covered those two major subjects with only one dissension in one case and unanimity in the other shows that the long time spent on and the thorough consideration of those two items by the Royal Commission were justified.
§ 5.5 p.m.
The Earl of Selkirk
My Lords, it is a great pleasure to follow the noble Lord, Lord Hughes, who was chairman of a distinguised Royal Commission whose quality has been greatly underestimated. I should like to emphasise what the noble Lord, Lord Macaulay, said. The inclusion of a clause dealing with what I call constitutional issues in a miscellaneous Bill is utter nonsense and unworthy of the Scottish Office. I am sorry that it has been done.
So much wisdom has been spoken today that I can be extremely short. I should like to take up the quotation from the noble and learned Lord the Lord Chancellor which has been made before but which I believe is the key to where we stand. He said that the keynote of his movement was to improve access to justice for all concerned. There is no one in the 196 House who does not agree with those words, but what has happened? First, the Royal Commission has been ignored. We have been asked —I put it bluntly —to worship the god of competition. I am not against competition but competition does two things: it reduces price and it reduces quality.
If there is one thing that matters in the administration of justice, it is quality. One may pay too much for it, but that is nothing as compared with a loss of quality of justice. That point is supremely important.
When I thought about that I recalled the words of Hobbes, that strange philosopher during the great revolution, who said:Words are wise men's counters, they do but reckon with them. They are the money of fools".We can easily be led astray by words which sound nice.
It is an embarrassment in some ways when so many distinguished noble Lords have spoken, but I should like to say just a word about the law of Scotland. I remember the late Lord Cooper, who was Lord President after the war. He said that the big difference between Scots law and English law was that English law was based primarily on precedent and Scots law was built on principle. It is generally regarded that the principle is based substantially on Roman-Dutch law. There then come the institutional writers of whom Stair is the leading one, although there are others, who put together a story of enormous importance. We then come to the third stage to which my noble and learned friend Lord Emslie referred: the quality and the discipline of the Court of Session. Those standards have been maintained through some stormy years when the courts in Scotland and elsewhere were regarded with a certain degree of indifference. That is why the quality of discipline and conduct in the Court of Session, in the Inner House especially, is of the utmost importance.
I do not for one moment say that solicitors do not become admirable judges. We all know many who do and whom we greatly respect. There is no reason why they should not. However, one cannot possibly have a court with people with two different standards of discipline pleading in it. That is just not on by any standard whatever, and for that reason alone the matter should be stopped.
We attach importance to our law in Scotland. Indeed, one can find that in the poems of Robert Burns if anybody had any doubts about the extent of the respect with which it is regarded. We acquired three things from the union of Scotland with England and Ireland: our banks, our religion and our law. The banks have been largely subsumed by economic elements, as I understand they are in Australia and in England, but they remain. Religion remains. However, it is in the interests of the whole country that we should retain the standards of Scots law. I shall not quote the amount of legislation copied in England in recent years but there is a long list of matters introduced into English law straight from Scotland. We should not underestimate that fact, but we should recognise that it has happened and I believe that it will go on happening.
197 It has been a great pleasure to hear noble and learned Lords speaking today. It has brought home to the Government something which they will not forget.
§ 5.11 p.m.
§ Lord Jauncey of Tullichettle
My Lords, first may I apologise to the House for not being present at the outset of the debate, in particular to hear the remarks of the noble and learned Lord the Lord Advocate. Alas, I was detained on business in another part of the building. It gives me great pleasure to take this opportunity of congratulating my noble and learned friend Lord Emslie on his maiden speech. I have been connected in law with the noble and learned Lord for more than 40 years. I have appeared against him, I have appeared as his junior and I have served under him as a judge in the Court of Session for nine years. The association has always given me great pleasure and I very much hope that his immense experience and wisdom will now be available to your Lordships on frequent occasions in the future. This has been only the beginning of many more speeches
Perhaps I may also commend the noble and learned Lord the Lord Advocate for one or two matters in the Bill. I suspect that he is slightly short of commendations this afternoon, but I commend him first in relation to the retention and extension of the cy pres jurisdiction of the Court of Session under Clause 8. This seems to be admirable.
In addition, I cannot help but feel that the provisions which allow the Lord President and the Lord Justice Clerk to nominate judges to the Inner House cannot but be for the good and strength of the court. Finally, I wish to congratulate the noble and learned Lord the Lord Advocate on still using that fine old fashioned word "client". It is good to acknowledge that he has not yet been seduced by the honeyed words of the Department of Trade and Industry.
Much of what I proposed to say has already been mentioned by noble Lords, I therefore do not propose to say anything in the nature of a root and branch objection to the proposals. It has been far better said by noble Lords who have already spoken and it would simply be a waste of your Lordships' time if I were to repeat what they have said. However, that does not mean that I am not fully in accord with their views on the subject.
I wish to say a brief word on two matters. One concerns theoretical and practical training; the other, partnerships of advocates. Training is obviously of considerable importance in two respects. It is clearly of importance to the client. It is important that he or she should have a competent and experienced advocate. I use "advocate" in the generic sense now to cover anyone who appears in court to plead his case. It is also, although perhaps less obviously, of importance to the court. I anticipate that when one refers to the court some people will think, "Ah, the benefit of the court is just the benefit of the judges who happen to be sitting there at the time. It will make life easier for them". With respect, that is a complete and utter misconception. It is essential for 198 the administration of justice that the courts should receive the maximum help they can from whomsoever is appearing before them. Not only does this expedite proceedings but it enables the courts to be more likely to reach a correct decision. I need hardly point out that expedition of proceedings means more court time available to other litigants waiting in the queue to have their cases heard. So the interest of the courts in these matters is of great public importance.
As my noble and learned friend Lord Emslie said, to permit solicitors to appear in the High Court of Justiciary is a novel step in the law of Scotland. To permit other persons, whether professionally qualified or not, to do so is also novel, but to date rather more removed from what the courts have been used to.
At the moment advocates have a theoretical training and a practical training which consists of devilling to a practising member of the Bar who instructs them in pleadings, in the presentation of a case, and generally in what to do. If he is a good devill master, he also instructs them in what not do do, which is nearly as important as what to do.
Solicitors have a similar theoretical training, but their practical training is geared to the chamber side of the profession. In my submission, it is extremely important that solicitors who are to be given rights of audience in the higher court, the Court of Session and the High Court of Justiciary, should have some practical training in those courts. That is to say, they should have some period of attachment to a practitioner in the courts, to learn their ways.
It is perhaps surprising that whereas, under the Bill, the Lord President is to be involved in any rules of conduct for solicitors appearing in the higher courts, as I understand it and if I read the wording correctly, he is not to be concerned in relation to the training. Clause 20(5) referring to the new Section 25A of the 1980 Act empowers the council to make rules dealing with training. As I understand it, those rules do not have effect unless the Secretary of State, after consulting the Director General of Fair Trading, approves them. It appears that the rules do not require to be referred to the Lord President.
The noble and learned Lord the Lord Advocate shakes his head. Perhaps I have an out-of-date copy of the Bill. My reading is that the Lord President is concerned with rules of conduct but not with rules in relation to training.
§ Lord Fraser of Carmyllie
My Lords, if the noble and learned Lord will allow me to intervene, to ask him to look at Clause 20(8) and the reference back to Section 34(2), he will then appreciate the position of the Lord President in the matter.
§ Lord Jauncey of Tullichettle
My Lords, I am greatly obliged to the noble and learned Lord the Lord Advocate. This is a reference back to the Solicitors (Scotland) Act where the rules which he makes are mentioned. I am pleased that that is so; it is clearly a matter of importance. No doubt the Lord President will take these matters into account.
199 Regarding members of professional or other bodies, the problem seems to me much more difficult. Apparently what is envisaged is some form of limited licence for persons to appear in limited categories of cases and in specified courts. If one assumes that a particular type of case —let us say a revenue case —involves only questions of revenue law, it might be simple enough to decide what training should be given to such persons appearing. However, as my noble and learned friend Lord McCluskey has already said, that is not the case. Many revenue cases do not involve questions of tax at all, they involve consideration of a general law. Therefore it will be extremely important that persons who are given these limited licences to appear in courts in Scotland should have some appropriate knowledge of the general law, as well as of such specialised fields as they will appear in.
In my view they must have not only a theoretical training in their own field and in the general law, but also they must clearly have some practical training in the practice of the court. It would be almost unthinkable that an accountant should be allowed to appear in the Court of Session, let us say in an exchequer cause, having had absolutely no training whatsoever in advocacy.
I very much hope that in a matter of this kind the Lord President will be consulted, although not as proposed at present, and that he will come in on the ground floor. As I understand the provisions of Clause 21, the Lord President looks at a scheme prepared by an appropriate body with regard to the rules of conduct contained in that scheme, that is to say the code of practice referred to at Clause 21(2)(b)(ii). However, he does not have the opportunity of making observations in relation to the training requirements. He sees the scheme only after the matter has been referred to the Secretary of State. I suggest to the noble and learned Lord the Lord Advocate that that is not an appropriate course. The Lord President is far more able to determine the kind of training, both theoretical and practical, that other professionals and non-professionals should undergo than is the Secretary of State and any of his advisers, whoever they may be, even with the assistance of the Director General of Fair Trading if he is consulted.
I say no more about training, but I wish to add a few words to what has already been said about advocates in partnership. I should like to know whom these proposals are intended to benefit. It would not be possible to give a positive answer to that, but it would be very simple to give a negative answer. The negative answer is that the proposals are certainly not intended for the benefit of the client as he will have fewer advocates to choose from, and if those advocates are tied to big solicitors or multinational accountants the client will almost inevitably have to pay more for their services. The client will have to go to such solicitors or accountants in order to employ an advocate in the first place as his own solicitor will not be able to use those advocates unless he abdicates his role in favour of the large firms of solicitors.
All in all, it seems to me that partnerships of advocates, of whom there are only some 250 200 practising in Scotland, can do nothing to assist the client but will merely reduce the number of advocates available for a client, if he requires their services. I hope that the noble and learned Lord the Lord Advocate will explain to the House precisely why he considers that partnerships among advocates and between advocates and other professionals will be of benefit to the public. If he cannot give a proper explanation of that, I hope he will consider dropping this clause from the Bill.
§ 5.23 p.m.
§ Baroness Carnegy of Lour
My Lords, I, like other noble Lords, was fascinated by the maiden speech of the noble and learned Lord, Lord Emslie. I also listened with admiration and interest to the extremely eloquent speeches that other distinguished lawyers made in defence of the status quo of advocates and of the status quo regarding the way in which the courts work. I also listened with interest to the noble Lord, Lord Evans, in defence of the status quo regarding the way in which solicitors work in relation to conveyancing.
I wish to make some brief general comments on the Bill and then refer to three specific aspects of the proposals for charities, conveyancing and for the sale of alcohol in supermarkets based on my own much more limited experience. First, I shall deal with the criticism voiced mainly by lawyers outside this House and in the debate this afternoon that it is quite wrong to include important changes in the way lawyers work and on the matter of breaking their monopoly on conveyancing in the same Bill as other changes to Scots law, such as the law for charities, the law relating to divorce and the alcohol licensing laws. The noble Lord, Lord Macaulay, suggested that that was an insult to Scotland. I would simply say that all these are matters of immediate importance to us Scots. Clearly, there is time in each parliamentary Session for only a limited number of Bills. I would rather see the various matters dealt with now in this Bill, even if it is a little difficult for us to handle, than make the people in Scotland wait for one, two, three or more years for several separate Bills. In saying that, there is of course one important proviso; that is, that the business managers allocate reasonable time so that we can consider the Bill properly.
Another criticism which again has come mainly from Scottish lawyers' organisations is that the Bill proposes English solutions to Scottish problems. There is the counter criticism which has come from, for example, the Scottish Consumer Council that the Bill does not go far enough and not as far as the proposals for England and Wales in protecting the public, for example in relation to house buying and selling and in relation to the unscrupulous use of charity law. On that it must be said that the ways in which Scottish lawyers work, the ways we in Scotland buy and sell our houses and the ways charities are regulated in Scotland are very different to the ways those things are done in England. We are all proud of our Scottish legal system. As the noble Lord, Lord Evans, said, our house buying system is the envy of many south of the Border. However, that does not mean that our arrangements are perfect, that they 201 do not need updating as times change and that there is no room for improvement. As we examine this Bill it will be the needs of the people of Scotland and adjustments to our Scottish system that we shall consider, but for goodness sake do not let us fall into the trap of thinking that good ideas for adjusting to change in the modern world cannot ever cross the Border, southwards or northwards.
I shall now turn to Part I of the Bill, which concerns proposals for the regulation of charities. My own experience of working within and alongside charitable organisations in Scotland makes me agree with the Scottish Council for Voluntary Organisations that the general objective of this part of the Bill is a good one. It is very important that the public should be able to find out more easily what organisations have been accepted by the Revenue as charities and that there should be public confidence that charities are well run and that their status is not abused.
I have two concerns which are shared by the Scottish council. First, will it be enough, as proposed in Clause 1(3) for members of the public simply to be able to obtain from the Revenue the names of charities and their last known addresses? Should there not be more detailed information available, if possible locally, perhaps in public libraries? Secondly, it is desirable, as Clauses 1 and 3 insist, that charities should be required to provide information about themselves, if asked, to keep proper accounts and to publish annually a report and accounts. However, is that sufficient? Surely the information made available should include not just the deed setting the charity up but also the crucial facts about who is in charge and who the trustees, director and senior officers are. The Scottish council is concerned about these matters and we shall doubtless discuss them in Committee.
I have one question for my noble and learned friend on the Front Bench. Clause 1(1)(a) refers to activities and purposes which are not charitable. What is the definition of a charity? Where does the charitable nature of an activity or purpose begin and end in the eyes of the Inland Revenue? I cannot find any definition in the Bill. I should be grateful if my noble and learned friend could help me on that point.
Regarding Part II, I have been much impressed by the trouble taken by the Scottish Law Association, the Faculty of Advocates and other smaller law organisations and by organisations such as the Scottish Consumer Council and the citizens advice bureaux in apprising noble Lords of their views. I have never received higher quality briefing than I have received on the Bill. I am indeed grateful.
At this stage I want to pick up one important point on the proposed new arrangements for conveyancing. I am all for giving Scots more choice of conveyancers when selling a house. In that I follow the noble Lord, Lord Hughes, and his Royal Commission. However, I am concerned as to whether people will be sufficiently protected against conveyancers whose interest is not only in the seller of the property but also, directly or indirectly, in 202 who buys the property. The Bill seems imprecise in its definition of who will be allowed to provide conveyancing services. Clauses 15 and 16 say that it must be a "fit and proper person". What is fit and proper? Applicants will be required to make "suitable" procedures and arrangements. What is suitable? Are the Government confident that those definitions will do?
Secondly, and extremely importantly, I am anxious that there is not sufficient assurance on the face of the Bill that conveyancers or their associates will be forbidden to act for both seller and buyer at the same time. I do not believe that the present situation is good enough. I understand that the Solicitors (Scotland) Practice Rules 1986 govern solicitors who are conveyancers. Those rules state, in Paragraph 3, that:a solicitor shall not act for 2 or more parties whose interests conflict".However, those rules do not, apparently, preclude two solicitors in the same firm acting for buyer and seller respectively. In my view that is not good, especially in small rural areas where firms are small and other people's business is news.
The client or customer will be even more vulnerable when there are multi-disciplinary firms and banks, insurance companies, building societies and the like which can do conveyancing. It will indeed be tempting for a conveyancer acting for the seller of a house to advise in certain circumstances that the house be sold to a particular aspiring buyer if that purchaser is likely to bring business to the conveyancer's firm or associates through the provision of a mortgate with associated insurance policies and commission in the future.
On 19th July, in introducing his White Paper for England and Wales, my noble and learned friend the Lord Chancellor made an important statement of principle on those matters. He said at cols. 779 and 780 of Hansard:There will be a detailed code of conduct laid clown by statutory instrument by which authorised practitioners will have to abide. Moreover, authorised practitioners will be prohibited from providing conveyancing services to both the seller and buyer in the same transaction (except in very limited circumstances) and from providing estate agency services to the seller and conveyancing services to the buyer in the same transaction. Making the provision of one service conditional upon taking another (so-called 'tying-in') in connection with house purchase will be prohibited. Authorised practitioners will be required to charge for their services on a basis which is not less than the true cost of providing them".Perhaps I may ask my noble friend whether the Government stand by those principles for Scotland. I note that Annexe C to the original Scottish consultation paper offers a proposed code of conduct with sections on conflict of interest. Where has that gone? It is not in the Bill. All I can find in Clauses 15(9) and 17(9) is that the Secretary of State may, after consultation with the Director General of Fair Trading, make regulations and such regulations may have respect to conflict of interest.
A representative of the Scottish Law Agents Society took the trouble to fly down from Inverness last week and put that question to me. The Law Society of Scotland and others are also very concerned about it. They have taken the trouble to 203 explain their concern. Can my noble and learned friend tell me whether the Government stand by the Lord Chancellor's statement in so far as concerns Scotland? If so, why is it that the Bill is so noncommittal? Why is there no code of conduct on the face of the Bill?
Linked to that point, I should like to ask whether the Government will consider including in the Bill prohibition of the process known as "churning", a process which is referred to in Paragraph 7.3 of the Government's statement. I shall not spend time on that matter now, but the Law Society believe that it costs house-buyers tens of millions of pounds every year. Is there no way of preventing it in Scotland?
Lastly, I should like to say a word about Clause 37. Here, I am on very familiar ground. The clause makes it mandatory for shop assistants under 18 to be supervised when they sell alcohol in small shops. It provides that no one under 18 should sell alcohol at all in large supermarkets. As my noble and learned friend said, that matter was fully discussed before the Recess under the Private Member's Bill of the noble Lord, Lord Stallard, which fell for lack of time. I said then, and I stand by the view, that it is wrong that at supermarket checkouts people under 18 should have to judge whether or not their contemporaries are under age. The Retail Consortium and Marks and Spencer have written to say that they disagree with the Government. I believe that they are wrong. I welcome the clause. I do not believe that it will present insuperable difficulties for shops. I hope that it will pass into law.
With those comments, I commend the Bill for Second Reading.
§ 5.38 p.m.
§ Lord Grimond
My Lords, there is a great deal of dissatisfaction in Britain today with certain aspects of the law. I applaud the Government for trying to improve matters. My difficulty is that I do not believe that the Bill will improve matters. Indeed, I do not believe that it goes to the root of anxiety about the law.
Most of that anxiety has arisen in England or in connection with English lawyers. I have been astonished lately in this House by the complacency of senior English lawyers about the state of their profession and its standing in the public eye. We have had the Guildford case and the Wright case, and we have noted the contrast between damages for libel and for personal injury. The other day, an experienced merchant banker told me a horrifying story of the expense to which his firm had been put. It was a story of waste of money and delay. At the end of the day he thought that the case had been extremely badly handled.
I emphasise that most of those cases arise in England, but their effect rubs off on Scotland. The ordinary person finds that litigation in this country is far too expensive, uncertain and prolonged. If Scottish law is founded on principle, as we were told by the noble Earl, Lord Selkirk, we should apply our minds to those principles and try to ensure that they are the objects of the courts. On the other hand, if 204 we look at the procedure of the courts, it appears to be a gladiatorial contest in which the person with the most money starts with a clear advantage. That is why I am in favour of going over to the inquisitorial system. When I last mentioned that point, the noble and learned Lord, Lord McCluskey said that it would be even more expensive than the present system. Nevertheless, it would be based on reason and logic and I do not despair of the lawyers succeeding in making it relatively cheap. However, it is beyond the bounds of possibility that the Government would do anything so radical as to change from the present system to the inquisitorial system.
I welcome the idea that audience should be widened. The sheriff's court in Scotland is an extremely effective court, as far as is possible under the present system. In principle, I am not against widening the audience of solicitors to the superior courts, nor do I see that there is necessarily anything wrong in partnerships. I am impressed by the fact that those proposals —both the widening of audience and the proposition that partnerships or memberships of large conglomerations of lawyers or of lawyers and accountants should be allowed —have aroused the antagonism of highly accomplished and respected men in both countries. No one who listened to the speech of the noble and learned Lord, Lord Emslie, could have failed to be impressed by the fact that those proposals arouse great anxiety.
It is said that, if the proposals were to go through, the cab rank principle would go; the ordinary solicitor who, as has rightly been said, relies upon being able to go to an advocate to obtain advice, would find that much more difficult; the quality of advocacy among those appearing before the courts would deteriorate; and the cream of Scottish legal ability would go down to London or be absorbed in partnerships and memberships of companies and not available to the ordinary litigant. Those are extremely serious criticisms. I do not know whether they are true and I do not believe that the noble and learned Lord the Lord Advocate does either.
If the Bill is at all essential, it is in England that it is needed. If it were needed in Scotland, I should not support it but I would see the argument for the Government proceeding with it. The Bill would never have seen the light of day but for the English Bill. It is founded purely on the need, as the Government consider it, to do something about England. Its results in Scotland will do nothing to cure the system's faults. On the other hand, if the opinions that I have quoted are right, it will do incomparable damage which will be difficult to rectify.
I therefore suggest to the Government that since the Bill is not a matter of urgency —I do not believe that even the clauses on charities, which on the whole I support, or other parts of this curious rag-bag of a Bill are at all urgent; I have received few complaints about charities in Scotland —they should postpone it, or at any rate the second part of it, watch what happens in England and let the English go forward with their Bill. We shall see what happens to barristers and the general conduct of the courts in England. Although I do not agree with the Bill, 205 if there were any urgency in it, I would see the Government's point in going forward with it, but clearly there is none.
The Bill suffers from the usual defects of much of our legislation: it sets up another quango; it is extremely diffuse without being in the least accurate; it contains pages and pages of stuff which do not shed much light on what will happen; the powers which it gives to various boards are obscure; it is obscure as to who will be appointed to the boards; and it passes over even more power to the Executive. Above all, I must again object to the thread that runs through all these Bills, both in Scotland and in England; namely, that they are promoted by the Department of Trade and Industry. They refer to competition and consumers. I do not consume my lawyer, nor do I consume his advice. As has been pointed out again and again, it is a quite different relationship and it is extremely sinister that it continues to hover around these Bills.
Much of what is harmless in the Bill might be effected much more easily. As I understand it, if a solicitor wishes to appear in the High Court, he may become an advocate. That point was borne out by the noble Lord, Lord Macaulay. It is not difficult to become an advocate. If the Bill were passed, he could remain with his firm of solicitors. I am not sure whether it is necessary to set up new boards.
In principle I agree that a layman should be allowed to have whatever representation he likes. He might be very unwise, but he should not be debarred from having the advocate that he wishes. The courts-martial system worked well until the lawyers got at it. So long as the courts-martial were left to ordinary soldiers, they came, like most courts, to a conclusion, which was on the whole right, quickly and without much palaver. But when people like Grimond who had been trained in the law came on the scene, the business soon became much more lengthy and all kinds of little tricks were introduced.
I do not know what the phrase a "fit and proper person" means in relation to most of the Bill. I do not know what extra choice will be given to people under the Bill. Perhaps they will have their conveyancing done by a building society, but probably only because of the financial advantages. As my noble friend said, the building societies and banks do not show much enthusiasm for going into conveyancing. As for choice among lawyers, the number of lawyers in Scotland has risen greatly. The number of lawyers in the Inverness faculty, for instance, has more than doubled since the war. Many of them are in government employment, but there is nevertheless plenty of choice among lawyers. I do not think that the addition of building societies will make much difference to the ordinary person. The ordinary person wants a lawyer whom he can trust to advise him on all kinds of matters which are not strictly of a legal kind. I very much doubt whether building societies are suitable bodies to take confirmation. That is a human and personal matter.
It is Clause 2 which causes me most anxiety. I myself do not feel so strongly up against it as some people may feel. I simply do not know what its results may be. But I am influenced by what has 206 been said about the possible consequences of the change in the legal professions which it will bring in.
I finish by saying that the law is of immense importance in Scotland —far more important than it is in England. The law, the Church and education are the last vestiges of our nationhood. They present Scotland. We have no Parliament. They are what people mean when they talk about the Scottish tradition, Scottish customs, and so on. If we were to wreck what is possibly an unsatisfactory but certainly not disastrous method of carrying out the law, we should be very guilty indeed in the light of future generations.
As I said, it will be very difficult indeed to reinstate anything like the present position with the advocates in the courts if we once destroy it. I beg the Government at least to think again and, if this Bill is passed, possibly to postpone the date upon which the Act comes into operation. Let us see whether our forebodings come true. We shall see what happens in England. I do not think that much harm will be done and I believe that a great deal of good would result.
§ 5.51 p.m.
§ Baroness Elliot of Harwood
My Lords, I speak with some difficulty on this subject because I am not at all an expert in legal affairs. I shall speak very shortly and not detain the House for any length of time.
Having spent much of my life in charitable work with charitable trusts I should like to say a few words about that aspect of the Bill, which I strongly support. I entirely agree that all information about charitable trusts should be made available, including details of how the money is allocated and whom to approach. Such information is of great importance to those who raise money for good causes. Accurate information is vital so that no wrong action can be taken by anyone involved in an appeal. I think that that is a vital matter.
Such information should also be available to the public. It is available as a right to the secretaries of trusts but sometimes it is not clear who they are. I suggest that it should be available from public libraries and possibly in other reference areas where people can look it up. Perhaps it could be in a public list or report.
The trusts with which I have been associated, such as the Carnegie United Kingdom Trust and the Jubilee Trust, publish annual reports and accounts for everyone to see. That is right. It enables people to know the interests that trustees have. Any person who wants to know about such things should be able to discover them. They should be able readily to find out which bodies are recognised as charities for the purposes of tax relief.
The present Bill proposes to elicit a great deal of such information. I think that it should be followed up. However, there are one or two matters which have been made known to me through the Scottish Council for Voluntary Organisations, of which I was the president for something like 16 or 18 years. That association recommends that, if the Inland Revenue is to be given the powers indicated in the Bill, the 207 Secretary of State should name a person within the Inland Revenue in Scotland as registrar, keeper of records or similar title. The naming of such a post would do much to assist public confidence in the system and allow for a measure of public accountability. I believe that that is a very good proposal and I commend it to the Government.
I feel that there should be a requirement on the Inland Revenue to publish an annual report showing, among other items, the extent and scale of its activities with regard to the matters in this Bill, together with an analysis of the information held. A directory of grant-making trusts based in Scotland should be compiled and published. It would be of great help both to the public and to the Inland Revenue. That is something which the Bill might encourage and that the Scottish Council for Voluntary Organisations would certainly support. Legislation and arrangements for Scotland should be no less effective than those for England.
The other problem arising from the new Bill concerns the changes proposed for solicitors in Scotland with the introduction of multi-disciplinary practices. Whereas at present conveyancing of houses—buying and selling —is done by solicitors, it can in future be done through banks and building societies. It is suggested that in order to be able to continue to deal with such work solicitors may get together with banks and building societies to form a group practice which will eliminate competition. That is a danger about which we should be concerned.
Moreover, if a person who lives in a rural area wants individual legal advice, he may have to go elsewhere and travel possibly some distance at considerable expense to obtain that legal advice. It may cost him a lot of money and take a long time. That would be very unpopular. This information comes to me from the chief executive of Roxburgh District Council, who is also vice-president of the Scottish Law Agents' Society. I promised that I would mention it today in the debate.
I feel sure that the noble and learned Lord the Lord Advocate has heard these arguments before. I hope that he will forgive me for stressing those points but I had much information sent to me and felt that I had to mention these matters. As the noble Baroness, Lady Carnegy, said, the information is extremely interesting and very well produced. I hope very much that the Government will pay some attention to the criticisms, in that I am one of the people who support the Bill.
§ 5.57 p.m.
§ Lord Morton of Shuna
My Lords, my noble and learned friends have said so much so much better than I can that my speech can be relatively short. However, the noble Baroness, Lady Carnegy, seemed to think that it was a good idea that what the noble and learned Lord who was sitting on my left when the noble and learned Lord the Lord Advocate was speaking referred to as a dog's breakfast should all be in one Bill. Does she remember the Education Reform Act? Does she remember the Copyright, Designs and Patents Act? Each of those pieces of 208 legislation would have passed through this House and, I think, another place much more quickly and much better if they had each consisted of three Bills when going through the House, so that the separate issues could have been separately considered. That is the point that I think she ignores.
Contrast those marathons with the Evidence (Scotland) Act. My recollection is that it went through in a discussion totalling 20 minutes between the noble and learned Lord, Lord Cameron of Lochbroom, and myself, and that was that. It is no use adding together this collection of bits and pieces, putting a constitutional hat on the mess and hoping that it will be a good Act. I intend to say very little about the various parts.
On divorce, I suggest that the reduced periods are possibly far too short. When people separate it is often a traumatic business. It is necessary that they should be given sufficient time to know exactly what they want and what is best to do. All the modern research suggests that divorce causes serious damage to the children of the marriage that is being split up. Is it really a good thing to leap in this way from two years and five years to one year and two years? I suggest that perhaps periods of two years and three years would be better.
I turn to the subject of charities. The noble Baroness, Lady Carnegy, asked for a definition of charity. As a result of this Bill if it goes through, the answer is fairly easy: buy an English textbook. The Scottish law of charity disappears completely. I see the noble and learned Lord the Lord Advocate shaking his head. If he refers to various decisions of your Lordships' House made, I believe, in 1953 concerning the Glasgow Police Athletic Association, he will find that there is such a thing as the Scottish law of charity. It is different from the Inland Revenue view of charity based on the law of Elizabeth I.
What of the Scottish law of charity when only the Inland Revenue law of charity remains? This may concern only those who are interested in keeping treaty obligations entered into in 1707 or who are interested in the history and preservation of Scots' law; perhaps it does not amount to very much. The provisions of the Bill are of very little use. According to the Home and Health Department the purpose was to establish a system whereby,Any interested person can readily discover which bodies are recognised as charities for the purposes of tax relief and can ascertain the name and address of the charity and the names of the trustees, office bearers and directors".That is fine; we all agree with it. The difficulty is that the Bill does not say so. If it did, the Bill would be much clearer. Surely, in an era of data processing that should be possible. It is after all what is required. It is necessary to have lists available in major centres where one can see what are the charities dealing with a particular problem such as that of mentally deficient children. There is nothing in the Bill that provides any method of doing so, but that is what is needed.
I have the privilege of being the chairman of a charity, having succeeded in that capacity the noble and learned Lord the Lord Chancellor. The charity is concerned with children and families. Many 209 charities deal with the disadvantaged. On occasions they require to criticise the policy of government. Sometimes they have to be fairly vociferous on behalf of disadvantaged people. It is a difficult line to establish when a charity is working, in Inland Revenue terms, for charitable purposes only and when it becomes a political pressure group.
Is it right that the noble and learned Lord the Lord Advocate, as a member of the Government, should be the person who decides these kinds of issues? I suggest that it is not. I further suggest, as a matter of practical politics, that it does not work very well. It is suggested that eight people are to carry out this work under the supervision of the Lord Advocate. I understand that that happens to be the number of qualified staff vacancies in one procurator fiscal's office in Scotland which the Lord Advocate cannot fill. Is this charities' body to be filled with people who are not very good at prosecuting in district courts and who have to be moved somewhere else? Alternatively, are they to be people who really know something about the law of trusts and charities? I suggest that there is a case for an independent body consisting of people who are interested and knowledgeable regarding public trusts.
There is another major change for charitable trusts and trustees which the noble and learned Lord will no doubt say is deliberate. Until now a gratuitous trustee was only liable for wilful misconduct. The Bill refers not to wilful misconduct but to any misconduct or mismanagement. Has the noble and learned Lord any idea of the difficulties of finding people to fulfil the necessary social job of being a gratuitous trustee in these circumstances? Is it really intended that any mismangement or misconduct is necessary? This contrasts with the person who holds himself out to be a conveyancing practitioner. He is not liable at all unless he wilfully and falsely holds himself out to be a conveyancing practitioner. Why is "wilful" omitted from the mismanagement?
I turn to the legal profession. Here the approach seems, from recollection, similar to the philosophy behind the Financial Services Act. Now that that Act has been in force for some time, I fail to see why anybody should consider such philosophy the correct approach. The effect for the small consumer of financial services has been to reduce competition, to decrease the availability of independent advice and to increase the cost of services. I now apply that to the legal services.
The major users of legal services such as the banks and the insurance companies —organisations of that kind —are not the people who need protection and help. They can pay for whatever they want and sometimes do. It is the ordinary citizen requiring a lawyer perhaps two or three times during his life who needs to have a reasonable expectation that he will be able to obtain good service at reasonable cost. The Bill does nothing at all for the ordinary citizen.
The conveyancing and confirmation services are to be available largely from banks, insurance companies and building societies. If one returns to the Financial Services Act one discovers that bodies such as the SIB, the RPB and the SRO, were all to be financed by levies from members. If the Government 210 believe in the phrase "the level playing field", why does the Law Society, as conveyancers, finance its own body? On the other hand, the building societies, banks and others who are to become certificated practitioners, or whatever they are to be, are to be financed by the Government. Why are the banks and the insurance companies not paying for the service themselves by a levy? Is there some change in the approach or is it that the banks, the insurance companies and the building societies are not interested unless somebody else pays?
The rights of audience provisions have a massive omission. There is one matter of importance which is included. I speak from experience because I have been a solicitor. It is said that the codes have to show that the person has,appeared in civil proceedings in the sheriff court over such a period, in such categories of litigation, and with such frequency … as seems to the Council to be appropriate".I have done that. The effect of having 11 years of practice in the sheriff court is that I was required to unlearn almost all the procedure in order that I would get the Court of Session procedure right. So this provision is based on a complete fallacy.
The other oddity is that there is a code of conduct which advocates require. As a compulsory measure, people becoming advocates are required to pass an examination in that subject. There is not a word about rules of conduct or who is to enforce them in this education system.
When one turns to the question of the appointment of judges, one reaches the height of stupidity. It is proposed that after five years solicitor advocates may become Court of Session judges. How does that fit with the solicitor advocate, or solicitor, or advocate who must serve 10 years before he can be appointed a sheriff or a sheriff principal? How does that fit with a sheriff principal who, having served his 10 years, must serve five years as a sheriff principal before he is competent to be appointed?
It may be that the noble and learned Lord, the Lord Advocate will say that we must go back to Clause 19 of the Treaty of Union. He will read there that the clause specifically gives power to Parliament to change the period of time. If the noble and learned Lord goes back to Clause 19, why has he chosen the period of five years for advocates and not 10 years, which is the period for writers to the signet. Does he really believe that five years is adequate for qualification of appointment? What advocate has ever been made a senator of the College of Justice with a five-year qualification? Is it not better to change that provision rather than to have this absurdity?
In my view, the Bill is shockingly and badly drafted. The noble and learned Lord the Lord Advocate should insist that those responsible for the drafting come to the House tomorrow to hear the debate initiated by my noble and learned friend Lord Simon of Glaisdale, which I regret I shall not be able to hear. They might learn a great deal.
§ 6.12 p.m.
Lord Campbell of Croy
My Lords, I thank my noble and learned friend the Lord Advocate for 211 the way in which he introduced this miscellaneous provisions Bill. Indeed, it is miscellaneous, as previous speakers have said. When it reaches another place I am sure that less polite but entirely parliamentary descriptions will be given because that is the usual fate of such a Bill.
I shall deal briefly with different subjects in the order in which they appear in the Bill. As regards charities, I welcome the general change that is proposed. As a trustee and officer bearer in charities —some of which are based in Scotland and some in England and Wales, usually dealing with the United Kingdom —I am aware of the different systems. In Scotland the Inland Revenue decides whether there should be charitable status and not the Charity Commissioners who operate only in England and Wales.
My impression is that the Inland Revenue is very efficient and an organisation applying for charitable status receives an answer quickly. I am also certain that organisations which have failed to pass the test are unlikely to avoid paying income tax or other taxes. The Inland Revenue works behind the scenes and therefore it is possible for an organisation in Scotland to pose as a charity and pass itself off to the media and the public as having charitable status when that is not the case. In my opinion, the Bill should improve that situation.
As regards conveyancing, an important change is proposed in the Bill. It is the first move to disturb the solicitors' monopoly on conveyancing in Scotland. For several years licensed conveyancers have existed in England and Wales following the attempt of a Private Members Bill tabled in another place by Mr. Austin Mitchell. It applied only to England and Wales and when he withdrew the Bill the Government committed themselves to bringing forward provisions in their legislation.
A different situation exists in Scotland where traditionally the solicitors carry out a large majority of estate agency business. In recent years it has been as much as 80 per cent. The Bill aims to introduce a system under which properly qualified practitioners can operate without creating conflicts of interest. I suggest that that aim needs careful attention because solicitors in Scotland act as agents for their clients and have been more involved in the buying and selling of houses than have their counterparts south of the Border. Noble Lords will not be surprised to learn that the Law Society of Scotland representing solicitors there is strongly opposed to the Government's plan. It believes that banks and building societies will move in on the conveyancing business.
I must declare an interest. During the past 14 years I have worked in one of the largest building societies in the country. I am director on the main board and for some years I have been chairman of its Scottish board. The society carries out a considerably greater proportion of its business in Scotland than the population there within the United Kingdom would suggest. Reflecting the rapid developments which have happened in financial services, the building society is now a large financial services institution. 212 At present we are negotiating the purchase of Girobank. For several years I have also been a vice-president of the Building Societies Association.
With that background, I speak from a personal viewpoint. I do not believe that the large building societies will wish to move quickly or to a great extent into conveyancing in Scotland. Therefore, to that extent I confirm what has already been said in the debate. They will accept the flexibility now proposed and have it in mind if it can help some of their members or the public, to meet their convenience and costs. Although that is only a personal opinion, I hope that it will reassure those who are concerned about the proposed change.
It is interesting to note the attitude of the consumer organisations in Scotland. The Scottish Consumer Council and the Citizens' Advice Bureaux of Scotland, while both approving the proposals in general on the grounds of extending competition, are concerned that solicitors' firms in rural areas may have to close if they lose much of their conveyancing work. That aspect has also worried me and I am glad to see that the champions of competition and the consumers recognise that possibilty.
I turn to the legal profession and the courts. I am not a lawyer and therefore I shall be brief. I have a special interest because as Secretary of State in the Scottish Office I was involved in the reorganisation of the courts in Scotland during the early 1970s through the Scottish Courts Administration. I hope that the Government will listen to the wise words spoken today by the noble and learned Lord, Lord Emslie. During the early 1970s when I was Secretary of State he became Lord President; that is, head of the judiciary in Scotland. Although he has been a Member of the House for several years he has not sought to speak in debate until today, having recently concluded his distinguished tenure. He held the post of Lord President in a most distinguished way for 17 years. Before that time also he made an immense contribution to the legal profession in Scotland. I hope that the Government will heed the points that he has raised. He spoke about important issues contained in Part II of the Bill and with great skill avoided a controversial speech.
Part III of the Bill and its associated schedule seek to make changes and to bring up to date the Licensing (Scotland) Act 1976. I believe that the Government have presented us today with most of what is needed. I have only two or three points of improvement to suggest. As some noble Lords will remember, my special interest is that I appointed the Clayson Committee in 1971 which reported to me while I was still in office and I was able to start preparing the legislation which eventually became the 1976 Act. I was pleased that the Labour administration which followed in the Scottish Office continued that.
That reform has been vindicated in the survey carried out over the first eight years of its operation by the OPCS. The report found that drinking had become a more civilised pastime in Scotland, which had been the aim; that there was a reduction in drunken excesses and particularly that there were few, if any, people trying to drink as much as possible before an early closing time.
213 The two points which I suggest to my noble and learned friend for consideration at the later stages of the Bill are, first, that the Bill makes it possible for hours to be extended on Sundays until 11 p.m. As far as I can see, that is for every establishment except public houses. I ask the Government to consider whether I am right in thinking that hotels, clubs, off-licences and entertainment premises will be able to do that but public houses will not. That seems to create an anomaly.
Secondly, Section 64 of the Licensing Act 1976 does not allow an appeal to the sheriff from a licensing board's decision. That right exists in similar parts of the Act and it is now, in my opinion, more necessary than ever to bring Section 64 into line with the arrangements in other parts of the Act.
Those and other matters are clearly to be raised during the Committee stage and later stages. I hope that the Government will take into account the views which have been expressed both in this debate and outside your Lordships' House and that they will be flexible at those later stages.
§ 6.22 p.m.
§ Lord Robertson of Oakridge
My Lords, I should like to comment on Clause 43 of the Bill. It is with considerable diffidence that I speak in this debate on Scottish affairs. My chief claim to be connected with Scotland is that I had the honour of serving for nearly 20 years with a Scottish regiment.
As many of your Lordships will be aware, the only ground for divorce in Scotland —and the law is virtually the same in England —is the irretrievable breakdown of the marriage. That can be substantiated in the following ways: adultery, intolerable behaviour, desertion, no cohabitation for two years with the other party's consent to divorce or no cohabitation for five years where that consent has not been given. The provisions in Clause 43 would remove the reference to desertion and would reduce the periods of separation to one year with consent and two years without it. Those changes are in line with the recommendations of the Scottish Law Commission Report No. 119.
At this stage I do not wish to comment further on the details of the proposed changes in law. What really concerns me is that any change in the divorce law deals only with symptoms rather than the problem itself which, in this case, is the state of marriage. I should like to be reassured that at the same time as we alter the divorce laws, we do what we can to protect marriage as an institution from the pressures which beset it.
The pressures on marriage are obvious and need no rehearsing. One only has to see how, on television drama, unfaithfulness to one's marriage partner is portrayed as the norm. More and more people, some of them having seen the trauma of their own parents' divorce, are deciding that they will be unable to show the commitment needed to sustain a marriage in the face of those pressures. Those people are shunning marriage and avoiding making promises to their partner.
That would not matter so much were it not for the children affected by the break-up of the 214 relationship. I know that we talk too much about people's rights but I believe that a child has the right to two parents wherever possible, one of either gender committed to each other and to their children. I should add that the words "wherever possible" refer to two parents and not to "one of either gender." For two people to run away from mutual commitment and yet to have children is to indulge in an extreme form of selfishness and irresponsibility. There is a need to reassert the traditional value of marriage as something which, from the beginning of time, has been given to us by God for our mutual benefit.
If we do not do that, marriage will become the exception and family life will be devastated. Parliament and the Government in particular can play a crucial role in developing a sound attitude towards marriage. Recent changes in tax relief on mortgages and taxation changes for married couples coming into force very shortly are steps in the right direction. A further opportunity will come next week on the embryo Bill when we debate whether fertility treatment should be made available only to women who are married.
Whatever the merits of the changes proposed in Clause 43, the shorter period of separation will diminish the public perception of marriage as a serious long-term commitment. That makes action to buttress marriage all the more important. Much was said on that subject in your Lordships' debate on the family on 29th November last year, not least by the right reverend Prelate the Bishop of Chester and the noble Viscount, Lord Brentford. They rightly emphasised the need for education on marriage in schools and the importance of marriage preparation by churches. The right reverend Prelate also suggested that similar preparation should be given or offered to those to be married in registry offices. I hope that his suggestion is being looked at.
Furthermore, there is a need to develop improved conciliation and reconciliation services to help those whose marriages are running into difficulty. Those wider aspects of marriage appear to have been outside the scope of the Scottish Law Commission report. However, I hope that I have said enough to underline the fact that piecemeal alterations to the divorce law will do little to solve the basic problem which requires a reassessment and re-establishment of the position of marriage in our society. I ask the noble and learned Lord the Lord Advocate for an assurance that those wider aspects are under consideration by the Government as a matter of priority. If not, I fear that Clause 43 will be a relatively pointless and potentially damaging exercise.
§ 6.28 p.m.
My Lords, my justification for contributing to this Second Reading debate is perhaps even less than that of the noble Lord who has just spoken. In fact, it hardly bears examination so I shall leave that alone. However, it behoves me to be extremely brief and that, I can assure noble Lords, I will be.
It came as no surprise to me that the Law Society in Scotland, as noble Lords will know from listening 215 to those who agree with its views, supported with enthusiasm all matters in the Bill which did not appear to tilt at the status quo of the provision of legal services in Scotland. Indeed, the burden of the speech of the noble and learned Lord, Lord Emslie, whose maiden speech I enjoyed immensely, was simply, "If it ain't broke, don't mend it". However, I believe from a variety of experience that however something may be perceived to be a success, that does not necessarily mean that there cannot be an improved way of going about it.
I believe passionately that that must be right and for that reason I support Her Majesty's Government in particular in regard to Part II of the Bill. The overall responsibility for developing and monitoring the administration of justice to suit modern needs must not lie alone with those who practise the law or who preside over the courts. The Government must always look to the best interests of all those they govern and not just those who practise or administer the law.
Your Lordships will not be surprised to learn that I have ceased to be surprised at the lengths to which some will go to suggest that the interests of justice must, by their nature, run parallel to maintaining the interests of lawyers. If broadening the opportunity of choice for those who seek access to the law means, as some have suggested, inter alia that the riff-raff will be granted rights of audience before the courts, I fail to see that lawyers have anything to fear.
I strongly believe it should not be left to lawyers alone to determine how justice should be administered or found. It is a proper role for government to determine those issues on behalf of and, above all, with the advice of, those whom they govern, ever bearing in mind the interests of justice and that the law is for the people. It is not to be seen —as it is unfortunately so often perceived by ignorant laymen —as nothing other than a plaything for academic and practising lawyers.
§ 6.32 p.m.
§ Lord Carmichael of Kelvingrove
My Lords, I am sure other noble Lords will have experienced speaking late on the Second Reading of a Bill having ticked off all the points made by a large number of earlier speakers. Imagine the situation now when not only is that the case but also when the points have been made by some of the best legal brains in Scotland. That makes my task even more difficult. I have no intention of trying to repeat in my own words those of such able advocates.
We were all anxiously awaiting the maiden speech of the noble and learned Lord, Lord Emslie. I do not think anyone was other than delighted to have been here to hear it. He made some very pertinent points about the Bill from his great experience. It is true he managed to be overtly non-controversial, but I do not think anyone can doubt that the real anxiety that people feel about the Bill —an expression used by the noble Lord, Lord Grimond —was present in the speech of the noble and learned Lord.
It is not just a pious hope to say that we look forward to hearing the noble and learned Lord often. 216 I hope especially that he will be able to attend the Committee stage of this Bill as often as possible. The noble and learned Lord the Lord Advocate may not appreciate that there will be a fairly long Committee stage for this Bill. I hope the noble and learned Lord, Lord Emslie, is able to be with us to give his guidance and the benefit of his experience. We all enjoyed hearing his speech.
With regard to the Bill, I merely repeat what everyone has said. It is a hotchpotch; it has everything in it. The legal part is obviously so important that it should be a separate Bill of its own. What worries me about a miscellaneous provisions Bill is that I was always taught as a child that ignorance of the law is no excuse for doing something wrong. How anyone can find their way through Scottish law now, with all the miscellaneous provisions we have had over the last few years, is beyond me.
Some parts of the Bill are good tidying up measures. Charities, as everyone has said, need a lot more definition. I am not however happy about the Charity Commissioner system operating in England; certainly it seems to be underfunded. I believe it is impossible in England to find out whether a charity is still in existence or what the state of it is. There is underfunding and records are in a very bad state. I hope in Scotland we will be able to put into practice all the proposals in the Bill. If so we will easily be able to ascertain where a particular charity stands, its status, its funding and its membership.
The question of legal services has been dealt with very thoroughly; but I should like to hear a great deal more about whether or not conveyancing should be let out to other bodies. The noble and learned Lord, Lord McCluskey, in an extremely powerful speech, said that the background to it all was inspired by competitive theologists of whom there are one or two on the political side in the Scottish Office.
The noble and learned Lord, Lord Morton of Shuna, spoke pungently about charities. He pointed out that charities occasionally and necessarily tend to be anti-establishment, anti-government and opposed to legislation that is going through. We all agree that charities and pressure groups—because charities have to be pressure groups periodically —naturally tend to lean more on the Opposition than on the Government. Whichever party is in power the Opposition are most likely to hear from them and perhaps put their point of view. Consequently, we should be very grateful to charities. We need them to advocate particular causes. They are specialists in their own fields. Without the briefings that charities give us, I often wonder how well we would get on in this House.
The noble and learned Lord, Lord Morton, also referred to divorce. I feel incompetent to speak on the subject because I have had absolutely no representation from the Churches, the women's organisations, marriage guidance counsellors, individuals or even —and I do not decry them —the newspaper agony aunts who receive enormous correspondence. I do not know whether anything will come from those sources: at the moment I prefer to bide my time and take the view of the 217 Government. Perhaps one year and two years as proposed in the Bill are reasonable amounts of time. One must remember that the marriage may have lasted for 20 years before that point, so it is not as though people are not familiar with each other. When the point is reached of an irretrievable breakdown of marriage or a mutual decision to part there may be a case for one year. As I say, I should like to hear more from some of the organisations involved.
The noble Lord, Lord Campbell of Croy, spoke about the Clayson Report. I was very much involved in another place in the discussion and the arguments on that report. There is no doubt that it was a great step forward in taking away the old image of Scottish drinking. It may not be easy to judge its real effect because the relative cost of alcohol has gone down so much. Looking at the situation pre-Clayson and post-Clayson, one is not on the famous level playing field. However, I believe there is a great deal more civilised drinking in Scotland, though there may be some other kinds of which we are not proud.
A number of points on licensing have been raised by the licensing trades association and by the Retail Consortium. These will require answers by the noble and learned Lord the Lord Advocate when we reach Committee stage. I shall not go into those matters in detail. They have been dealt with by other noble Lords.
There is the question of public houses being particularly restricted on a Sunday, and the question of off-sales. One matter which has more substance is whether there should be an appeal beyond the licensing court. One is on delicate ground in this respect because local licensing courts know their business better than anyone. There must be a method of appeal for someone who wishes to be a licensee and who thinks that he is being discriminated against in some way. That matter should be looked into carefully at Committee stage.
Finally, I should like to speak about the treatment of offenders. As a past chairman of SACRO, that is a matter with which I am particularly concerned. A number of provisions in the Bill take the matter forward. Generally speaking, SACRO and I support those points. The general drift of the Bill is correct, but there is a feeling that the wording is unclear and unduly convoluted. I hope that some amendments will be accepted which would clarify the types of reports that should be obtained from social workers.
The same situation applies to community service orders where it is difficult to understand what powers will be given to the sheriffs in extending the use of community service orders. Having said that, I doubt whether there will be a large change in the number of orders. It may be possible to reword the Bill so that the sheriffs have more liberty to impose community service orders and fines instead of imprisonment.
Those are Committee points. I have found the debate extremely enjoyable. I think that we will have a very serious Committee stage. As one noble Lord who is not a member of my party said to me: "By gum, the Government are going to need a three-line Whip during the whole of this Committee stage". I 218 am pleased that the Leader of the House is sitting here and has heard that comment. It will be a fairly stormy Bill. We can all look forward to it. We can take the good parts of the Bill, and perhaps with a little pressure from very powerful groups who are allied against the Government some important changes may be made.
§ 6.45 p.m.
§ Lord Fraser of Carmyllie
My Lords, I should like to join in the compliments that have been paid to the previous Lord President of the Court of Session, the noble and learned Lord, Lord Emslie, on his maiden speech. With great skill he avoided breaching the conventions of this House, but it would be unwise of me not to discern opposition on his part to certain provisions in the Bill. I hope that I shall be able to reassure him on one important matter. The noble and learned Lord made a remarkable contribution to the substantive law of Scotland during his time as Lord President, but it is less frequently acknowledged how much he did by way of contribution to the efficient organisation and disposal of work in the Court of Session. He has given us a lasting legacy.
I am grateful to the noble Lord, Lord Macaulay, for his hand-me-down objection on miscellaneous provisions Bills. I am sure that his noble friend is aware that every single miscellaneous provisions Bill has attracted much the same kinds of objection.
I was a little taken aback by the comment made by the noble and learned Lord, Lord McCluskey, from his position as a serving judge on the Cross Benches. I thought that it went beyond what is proper for a serving judge to describe someone whom the Secretary of State nominates as a placeman. If I have misunderstood the limits of the convention, I have no doubt that the noble and learned Lord will correct me at a later date.
The noble Lord, Lord Grimond, has once again made his plea for the introduction of a more inquisitorial system of justice in the United Kingdom, particularly in Scotland. I am intrigued by that plea. The Italian criminal code which, after 24 years' gestation has just seen the light of day, goes out of its way to reduce the inquisitorial character of the procedure that Italy has enjoyed for a long time. I understand that similar movements are under way in Spain and France.
In spite of the last remarks made by the noble Lord, Lord Carmichael in regard to the character of the Bill, I recognise that there are very strongly held views about Part II and about the matrimonial proposals. There are points that require to be clarified and debated at Committee stage on the other parts, but in substance there were no objections to Part I or Part III. Indeed they were welcomed, along with other parts of the miscellaneous provisions. Accordingly, it is with some apology that I need to find an artificial excuse for introducing a matter that I did not mention in my opening remarks in regard to licensing. Government amendments will be introduced to allow licensees to apply for a special children's certificate and to impose certain restrictions on wholesale dealers in alcoholic liquor. I apologise for my failure to mention that point.
219 I should like to turn to the Scots law of charity, which was a matter raised by the noble and learned Lord, Lord Morton of Shuna. We are not touching on Scots law. Whatever this Bill does, it does not alter the definition of a charity; nor will it be for me to decide what is a charity. I am concerned about issues of mismanagement, not with disputes as to whether a matter is a charitable objective or not. Mismanagement is the trigger for me to consider whether or not I need to take issue.
If there was a central theme to the points raised on Part I, it was the exploration of the opportunity that there might be to obtain yet more information from the Inland Revenue about charities that it recognises. Very reasonable points were made concerning issues as to whether there should be a directory and local access points to the Inland Revenue in order to discover these matters, which are clearly of interest to many of us.
The first priority is for a list to be established and the information transferred to microfiche. It may prove possible for copies of the microfiche to be made available at several outlets. The Inland Revenue will be happy to respond to telephone enquiries, as at present. The noble Lord, Lord Campbell, suggested that in due course a directory might be produced. It does not follow that that would have to be done by either the Inland Revenue or the Government. The voluntary organisations in Scotland may wish to take that on. There were few points made in regard to the question of charity. I shall listen carefully to any proposals which are made.
I should like to turn to matters of conveyancing. The noble Lord, Lord Evans of Claughton, paid a compliment to the practice of conveyancing in Scotland. When I am this side of the Border, the high regard for the Scottish system tends to focus on the fact that we have concluded missives at an earlier stage. Therefore the practice of gazumping is effectively excluded. The conclusion of binding missives between purchaser and seller is not within the monopoly that is allowed for in Scotland and exclusively reserved to solicitors. Anybody can arrange that part of the transaction without breaching any law. He might be ill advised to do so unless he were a good lawyer but there is no necessary rigidity or restriction on him doing that.
The noble and learned Lord, Lord Morton, felt that, especially in regard to conveyancing, the Bill did nothing to help the ordinary citizen. While I accept that bodies such as the Scottish Consumers' Council and the Citizens Advice Bureau have their misgivings about the extent to which there is a lay involvement in the conveyancing board and in other areas, I took from their observations that in principle they approved of our arrangements. I accept the concern expressed all over Scotland that it would be undesirable if these changes led to the absence of solicitors in the rural areas of Scotland. I am not convinced that the risk is anything like so great as some have suggested. Even if there were some difficulty, I would say to my noble friend Lord Stodart that if I were a first-time house purchaser living in North Berwick I should not expect what I 220 had paid in conveyancing fees to be used in any way to cross-subsidise the legal services that might be extended to him, if he were to ask his practitioner, living as he does in a rural area, to provide services on agriculture or whatever else it might be. It is important that we do not confuse the matter.
My noble friend Lady Carnegy asked about the prohibition on tying in. This will be prohibited in Scotland by virtue of Clause 72 of the Courts and Legal Services Bill. This is because the matter needs to be covered on both sides of the Border. Furthermore, it is not a matter to be restricted to lawyers alone.
The noble and learned Lord, Lord McCluskey, was anxious that, in regard to the conveyancing board, the test of a fit and proper person was in some respects too wide. The same test is applied in Section 6 of the Solicitors (Scotland) Act 1980. The composition requirements for the conveyancing board are to be found in paragraph 4 of Schedule 1 to the Act. The greatest point of concern on conveyancing, as has been reflected also in the representations received by noble Lords, arises on the provision of a code of conduct for conveyancing practitioners, which, as Clause 15 makes clear, is to be prescribed in regulations. Clause 16 sets out the areas of practice which such a code will cover, including that of conflict of interest.
While I am aware that some would argue that the code should appear in primary legislation, I am sure that the Law Society of Scotland will recall that during the passage of the Legal Aid (Scotland) Act 1986 it pressed for certain matters to appear on the face of the Bill. But within months of the Act coming into force it was pressing the Secretary of State to seek to change that by means of regulation. If five years ago one had drawn up primary legislation to include a code of conduct on conveyancing, I doubt very much whether the issue of "churning" would have been addressed. Practices and conduct in carrying out these matters tend to change. It is useful and flexible to leave it to regulation while nevertheless acknowledging that there should indeed be a statutory code to cover these matters.
§ Baroness Carnegy of Lour
My Lords, my noble and learned friend said that there is a list of the various aspects which will be included in the regulations. With respect, the problem is that the Bill says that they "may" be included. Is my noble and learned friend prepared to correct himself on that?
§ Lord Fraser of Carmyllie
My Lords, the clause uses the word "may". If these matters are set out as clearly and as separately as they will be, it is to be anticipated that they will be within the code of conduct that emerges. If that fails to happen I have no doubt that my noble friend will be the first person to make the sharpest objection to the Government.
My noble friend specifically referred to churning. I think it will be agreed on both sides of the House that everything should be done to discourage it. However, it is primarily a matter to be dealt with by the Securities and Investment Board under the Financial Services Act 1986. As my noble and learned friend the Lord Chancellor has already 221 indicated, this matter has been drawn to the board's attention and new rules are being considered to prevent this kind of market abuse.
I turn now to the changes in the legal profession and rights of audience. The noble Lord, Lord Macaulay, speaking from the Opposition Front Bench —I take it in the capacity of Front Bench Official Opposition spokesman —indicated that the Opposition are opposed to changes in the rights of audience set out in Part II of the Bill. I confess that I had not appreciated that the Official Opposition had taken such a firm view on this point. I am grateful to him for spelling that out so clearly for us.
As one looks to the extension of rights of audience one is not looking at the issue of fusion. That is not the Government's aim. In my opening speech I went out of my way to say that the continuation of an independent Scots Bar is considered desirable and that I was confident that that independence would be maintained, notwithstanding the changes we propose. I want to reiterate that that remains the Government's view. The noble Lord, Lord Hughes, referred to his work on the Royal Commission, which rejected extended rights of audience for all solicitors. With respect to him, our approach of conferring rights of audience only on a particular group of solicitors who have demonstrated by way of training and otherwise that they are fit to appear before the Supreme Court is rather different from the approach set out at the time of the Royal Commission.
The noble Lord, Lord Macaulay, was concerned that there was no cab rank rule equivalent for solicitors. That is right. There is nothing approximating entirely to that shorthand description of the Faculty of Advocates' rule. But the Law Society of Scotland is to make rules to ensure that any person requiring a solicitor in the Supreme Courts does not go unrepresented. The precise mechanism it uses to achieve that will be up to the society.
I hope I satisfied the noble and learned Lord, Lord Jauncey, that the Lord President has a part to play in the training regulations, although I accept that it is tucked away somewhat obscurely in that reference to Section 34 of the Solicitors (Scotland) Act 1980. It was unfair for the noble and learned Lord, Lord McCluskey, to say that the Bill changes the Constitution, with 20 new executive powers for the Secretary of State. The Secretary of State can appoint the ombudsman. But I should have thought that the noble and learned Lord would have welcomed the appointment of an independent ombudsman. He can appoint a new board and, as will be appreciated, he appoints members to many boards. There is nothing constitutionally wrong with that. Moreover, he can insist upon consumer safeguards, which does not appear to me to be surprising, and can also arrange for English lawyers to have the same rights in Scotland as French, Italian and Belgian lawyers enjoy in the European Community. Again, that fact may not be welcomed by one and all; but it would scarcely seem to me to be a matter which indicated the wholesale removal of powers from the judiciary to the extent implied.
The Earl of Selkirk
My Lords, did the noble and learned Lord say that the Scottish Office has the right to make rules as regards the conduct of business in the Court of Session?
§ Lord Fraser of Carmyllie
No, my Lords; the powers which the Lord President has are not altered by the provision. Indeed, in many respects he is brought into the matter to play an important part. In Clause 21, although I appreciate that it is not much liked, it is readily recognised that the Lord President has a critical role to play in the matter of the Court of Session.
§ Lord McCluskey
My Lords, perhaps the noble and learned Lord will permit me to intervene as he has mentioned me twice. I hope that he will be good enough to read what I have said in Hansard. If he does so, he will discover that what I said was that the Bill gives power to the Secretary of State —and that means any Secretary of State —if he is so minded, to appoint his own placemen to various posts. Is the noble and learned Lord saying that I misunderstood the Bill in that respect?
§ Lord Fraser of Carmyllie
No, my Lords; that is not what I am saying. However, I think it was mischievous of the noble and learned Lord to suggest that because this wide range of opportunities is being given to the Secretary of State such powers are in some sinister fashion an unacceptable extension of the power of the Executive. I certainly take exception, as I have already indicated, to his use of the word "placemen". However, I may be unduly sensitive in that respect.
So far as concerns Clause 21, I do not envisage that the effect of the clause will allow laymen to act in jury trials in the Court of Session by this most indirect of routes. It would appear to me that we have taken enough bulls by enough horns as regards this particular set of provisions. However, if that had been what we wanted to achieve, we could have done so in a much simpler way. It is seen that there may be circumstances in which restricted groups of people will seek to have rights of audience, but there are provisions in place under Clause 21 to involve the Lord President in the way the scheme is put forward. I should like to qualify that statement by saying that I am most grateful to the noble and learned Lord, Lord Jauncey of Tullichettle, for what he said about the role of the Lord President under that clause. Moreover, I should like to look again at the manner in which he is involved therein.
Finally, on the issue of rights of audience, I should say that if any part of this Bill caused great fury, it was undoubtedly the provisions as regards partnerships under Clause 23. In this respect I address my remarks principally to the noble and learned Lords, Lord Emslie and Lord McCluskey, and the noble and learned Lord, Lord Morton of Shuna, who are clearly very anxious about these provisions.
Perhaps I may approach the matter in this way. Had the Government intended to abolish the rule that now exists in the Faculty of Advocates which states that members cannot form partnerships 223 between themselves, or, indeed, with any other people, the clause could have been drafted simply to abolish that rule. Instead, the clause allows the faculty, if it so wishes, to make a rule against professional partnerships, and the rule will be perfectly valid if the Lord President and —I accept —the Secretary of State approve it. The Secretary of State must first consult the Director General of Fair Trading, but the present director to whom the noble and learned Lord, Lord McCluskey, referred —namely, Sir Gordon Borrie —has already publicly supported the idea of an independent Bar without partnerships. In such circumstances, it would seem to me that he was hardly the man to consult if the Government were hell-bent on introducing partnerships into the Faculty of Advocates.
Moreover —and, I stress this point —once the Secretary of State acting in the public interest approves any rule on partnerships, that will remove the rule from the direct supervision of the planned competition authority. Again, that is impossible to reconcile with a DTI scheme to stifle the independence of the profession. Further, in discussions with the learned Dean of Faculty and other members of the faculty it was, I thought, sufficiently understood by them why it was considered appropriate that the provision should be approached in this way. I emphasise, as best I can, that the provision is not there with the express purpose of getting rid of the Faculty of Advocates by way of requiring it to remove its rule on prohibition of partnerships.
I shall now deal briefly with matters in relation to licensing. It would seem to me that there were no substantial points of concern in this respect. The noble Lord, Lord Campbell, asked many questions. He asked first why there is no appeal against decisions by licensing boards on late night extensions. It was considered that licensing boards were best placed to make such decisions on the basis of detailed local knowledge. With some perception, the noble Lord indicated that he appreciated the fact that public houses are in a somewhat anomalous position, being the only group which will not be allowed to open on Sunday afternoons when all other types of business are so permitted.
I am grateful to those noble Lords who indicated their approval regarding what we are doing as regards matters of fines and sentencing. I trust that, although we shall have some interesting discussion on the issue, there will be little heat in it.
Finally, there is the matter of divorce. I appreciate that there are those who feel most strongly that the "hardback" should be left on the marriage certificate. However, we have sought to look at what the Scottish Law Commission concluded, having carried out some research on the matter. As the noble Lord, Lord Carmichael, said, the proposal seems to have generated a little heat in Scotland. It is not a measure which is designed to encourage people to divorce more frequently or more readily. Indeed, we understand and appreciate as well as the noble Lord, Lord Robertson, that marriage is the basis of much good in our society.
224 However, we are concerned that if there is too much difficulty in the way that divorces can be achieved once the marriage has broken down, then, instead of settling arrangements for the children for whom they have concern and coming to a proper arrangement on financial matters, the parents will be involved in protracted and mutually destructive arguments about the divorce.
Despite the threat made by the noble Lord, Lord Carmichael, at the end of his speech that we are in for a long period of debate in Committee, I trust that after the explanations I have given there will at least be a constructive basis upon which to approach the matter.
On Question, Bill read a second time, and committed to a Committee of the Whole House.