Lords Sitting of 1 May 1990

Preamble
The House met at half-past two of the clock: The CHAIRMAN OF COMMITTEES on the Woolsack.
Prayers—Read by the Lord Bishop of Salisbury.
Lord Inchyra Lord Inchyra —Sat first in Parliament after the death of his father.

Orthoptists' Training: Funding
Lord Oram Lord Oram asked Her Majesty's Government:
What proposals they have for financing on a national basis the training of orthoptists as undertaken in paragraph 6.11 of Working Paper 10 (Education and Training) issued in conjunction with the White Paper Working for Patients.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Hooper): My Lords, the Government propose that from 1992 orthoptic training will be financed on a national basis and located an two or more universities in England and one college of further education in Scotland. Negotiations are in progress with a number of universities and we hope to reach agreement on financial arrangements in good time for the next financial year.
Lord Oram: My Lords, I thank the noble Baroness for that helpful reply. I hope that there will be a good outcome to the discussions that are going on. However, is she confident that this matter is being approached with a sufficient sense of urgency? I understand that there is considerable danger that the deadline: for publication of the degrees is February next year. A great deal of preparation has to be undertaken before that properly can be done. Can the noble Baroness give the House the assurance that sufficient money for those degree courses will be forthcoming, and in good time?
Baroness Hooper: My Lords, I certainly hope that we shall be in a position well before February next year to publish the results of the negotiations which are now being carried on. The universities' requirements for capital funding in order to refurbish accommodation and to purchase equipment are central to the discussions. We are exploring exactly what these costs will be and how best they may be met.
Lord Ennals: My Lords, I warmly welcome the Minister's assurance that negotiations are going well. Is she aware that there is a good deal of concern particularly within the British Orthoptic Society? The society seems to think, despite the upbeat approach of Working Paper 10 (Education and Training) , that the required sum of a quarter of a million sounds has somehow been lost, withdrawn or become unavailable. Since there is such anxiety, will the noble Baroness or an appropriate Minister
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get in touch with the society to ensure that the uncertainities in its mind are removed?
Baroness Hooper: My Lords, I shall certainly pass on the remarks that have been made in the course of this Question. Officials are in close and regular contact with the British Orthoptic Society, the relevant universities, and the College of Ophthalmologists.
The working paper to which the Question on the Order Paper refers went out in October of last year as a consultative document. We are now considering and assessing responses with a view to issuing guidance.
Lord Taylor of Blackburn: My Lords, where will the funding come from? Will it come from the Universities Funding Council or from the DHSS?
Baroness Hooper: My Lords, perhaps I can best quote the White Paper. It states that from the date when the new arrangements take effect the department will top slice centrally for the cost of orthoptists' training although it will look to the regions within which the centres are situated to manage the training and contracts.
Lord Orr-Ewing: My Lords, will my noble friend help my education and possibly that of others in the House by telling us what orthoptists are?
Baroness Hooper: My Lords, I am grateful to my noble friend. Orthoptists form one of the professions allied to medicine. They have traditionally been concerned with the diagnosis and treatment of muscular conditions of the eyes, in particular squints, but their role has widened and expanded over the years. Their main clients are children. Increasingly, they undertake vision screening for young children, and also work among the elderly, including stroke and glaucoma victims. They work closely with ophthalmologists and increasingly act as the first point of referral for patients from a variety of sources.
Lord Tordoff: My Lords, will the noble Baroness further assist us by explaining what is meant by top slicing centrally?
Baroness Hooper: My Lords, it means withholding allocations which would otherwise be made direct to the regions for the purpose of a particular need.
Lord Dean of Beswick: My Lords, is there an established need for an increase in the number of orthoptists? If so, do government proposals take that sufficiently into account?
Baroness Hooper: My Lords, I am not aware of any particular pressure to increase the number of orthoptists. I understand that there are about 150 orthoptists undergoing training at any given time and that there are some 650 working orthoptists. I am not aware of any great demand to increase numbers.
Lord Oram: My Lords, is it not the case that the present training units are being phased out? Is there not a danger that they will be phased out before a satisfactory alternative arrangement is made? Will the Minister ensure that that dilemma is avoided?
Baroness Hooper: My Lords, yes. The negotiations taking place are intended to cover everything, including detailed arrangements for the closure of schools. Our intention is that intakes of new students to existing training schools will cease from the autumn of 1992 by which time we expect to have the new arrangements in place.

The Baltic States and Lithuanian Government
2.45 p.m.
Lord Wyatt of Weeford Lord Wyatt of Weeford asked Her Majesty's Government:
Whether annexation of the Baltic States by the Soviet Union in 1940 affected their right to recognition as independent nations; and whether they recognise the recently freely elected President and Government of Lithuania.
The Minister of State, Foreign and Commonwealth Office (Lord Brabazon of Tara): My Lords, we have never recognised the legality of the incorporation of the Baltic States into the Soviet Union in 1940. The question of the recognition of Lithuania as a state is, however, a separate issue. Lithuania does not at present satisfy the long-standing criteria which we apply to the recognition of a state.
Lord Wyatt of Weeford: My Lords, is the noble Lord aware that this morning in Red Square thousands of demonstrators demanded the immediate return of independence to Lithuania and the Baltic States and the ending of the illegal blockage, and booed Mr. Gorbachev off the May Day platform? Also, can we not send some encouragement to Lithuania and the Baltic States and stop urging them to give in to whatever Mr. Gorbachev wants in the way that we told Czechoslovakia to give in to Hitler? Can we not at least send some humanitarian supplies to Lithuania to lift the blockade, because Lithuania is still a sovereign nation and we have never said that it is anything else?
Lord Brabazon of Tara: My Lords, although I have not yet seen the film of the demonstrations, I am aware of what took place in Red Square this morning. We and our Western allies are deeply concerned about the future of Lithuania but nobody, including the Lithuanians, would profit from a deterioration in East-West relations at a stage when crucial negotiations on European security are taking place. We underline the need for a purposeful dialogue between the two parties aimed at reaching an agreement acceptable to all concerned.
As regards aid, the EC is keeping in close touch with partners over possible responses to the current situation.
Lord Cledwyn of Penrhos: My Lords, while we sympathise with the aspirations of the Lithuanian people, we recognise also the difficulties which confront President Gorbachev. We further recognise that Lithuania would not be in a position to seek independence today were it not for the policies of Mr. Gorbachev over the past four years. Can the noble Lord say what diplomatic steps Her Majesty's Government have taken with the United States in particular, which is independently seeking a compromise, and through the European Community?
Lord Brabazon of Tara: My Lords, I agree with what the noble Lord the Leader of the Opposition said in the first part of his question. Of course we should not be in the present situation were it not for the recent measures which Mr. Gorbachev has taken.
As regards consultation with the United States and our other allies, we are keeping in close and regular contact with our allies and European partners as the situation develops. The most recent statement by the Irish presidency on behalf of the Twelve was made on 21st April followed by a demarche by the Irish ambassador in Moscow. That was at our initiative. I assure noble Lords that we are keeping in close touch not only with our partners in the EC but also with the United States as to what is happening there.
The Earl of Kimberley: My Lords, does my noble friend not agree that in spite of all the honeyed words he has used it is time that we took a lead on this issue and made ourselves more purposeful over the matter of Lithuania? My noble friend says that the long-standing criteria have not been reached. Can he explain what are the long-standing criteria?
Lord Brabazon of Tara: My Lords, I was referring to the criteria for the recognition of states. As I said, that applies to the recognition of Lithuania as an independent state. Those criteria are that a state should have and should seem likely to continue to have clearly defined territory with a population, a government who are able to exercise control over that territory and independence in their external relations.
Lord Bonham-Carter: My Lords, does the noble Lord agree that Her Majesty's Government should associate themselves with the initiatives taken by Mr. Mitterrand and Mr. Kohl in which they suggested that negotiations were the right way out of this particularly difficult problem? Does he also agree that in the case of independent movements within the USSR to which President Gorbachev has given his assent, structured independence by means of negotiation is the right way forward rather than unilateral declarations?
Lord Brabazon of Tara: My Lords, I agree with the latter part of the noble Lord's question. The letter from Chancellor Kohl and President Mitterrand reflects the wishes of the West to see a constructive dialogue started as soon as possible. Both sides must move if that is to happen; and we certainly agree with the sentiments expressed in that letter.
Lord Jenkins of Putney: My Lords, in addition to what the Minister has already said, perhaps I may ask this question. Will he take the opportunity of reminding the noble Lord, Lord Wyatt, that if the Soviet Union had not occupied Lithuania in 1939, it is highly likely that the Nazis would have won World War II and we probably would not be sitting here discussing Lithuanian independence or anything else?
Lord Brabazon of Tara: My Lords, I am not certain that I wish to indulge in that sort of speculation. I am sure that the noble Lord, Lord Wyatt, heard the question from the noble Lord, Lord Jenkins; but I do not intend to comment on it.
Lord Wyatt of Weeford: My Lords, as the Government of the Soviet Union have at last admitted to lying when they said that the Nazis massacred the Polish officers at Katyn, can we not persuade them to admit that they are lying when they say that the rape of the Baltic States by agreement with Hitler did not end the sovereignty of those nations which at the time were members of the League of Nations?
Lord Brabazon of Tara: My Lords, as I said in my original Answer, we have never recognised the legality of the incorporation of the Baltic States into the Soviet Union in 1940. The Soviet Union is well aware of our attitude to that matter.
Lord Molloy: My Lords, bearing in mind that many of us can remember the events of that time, perhaps I may say this. We are not so concerned with the Government of the Soviet Union in the years 1940 until 1945, but with the tremendous effort the Soviet people made in support of us. The support that we had from America and the Soviet Union contributed to the destruction of Nazi Germany. Bearing in mind that Mr. Gorbachev has softened his sanctions, encouraged by President Bush, ought we not to recognise that and, together with the Americans, continue to make sensible representations to President Gorbachev in order to help him and thus ultimately all the Baltic States?
Lord Brabazon of Tara: My Lords, there is much that I agree with in what the noble Lord, Lord Molloy, says. We should like to see Lithuania regain its independence, which was illegally taken away in 1940. The best way to do that is by peaceful negotiation with President Gorbachev and the Soviet Union. The fact that Lithuania is in difficulty at the moment with the blockades and so on, proves that it is no: that simple just to declare independence.
Lord Jenkins of Hillhead: My Lords, is the noble Lord aware that some of us regard the suggestion that the Soviet occupation of Lithuania in 1939-40 was crucial to the Allied victory in World War II is as far fetched as the comparison between Hitler in 1938-39 and Mr. Gorbachev today?
Lord Brabazon of Tara: My Lords, we shall be best occupied in looking to the present time and the future rather than going back into the history to which the noble Lord referred.
Lord Kennet: My Lords——
Viscount St. Davids: My Lords——
Noble Lords: Order! Cross-Benches!
The Lord Privy Seal (Lord Belstead): My Lords, perhaps the noble Lord, Lord Kennet, would like to ask his question; he has tried to ask it many times. The noble Viscount can then ask his question, and then perhaps the House will move on.
Lord Kennet: My Lords, I am grateful to the Leader of the House. Is it not the case that the Soviet constitution permits constituent republics to secede, and has permitted that for decades? Are we therefore discussing not whether Lithuania has the right to secede, but what is the best and most peaceful way to do that? Given the fact that the first action the Lithuanian Government took after proclaiming its secession was to ask all Lithuanian soldiers in the Soviet army in Lithuania to leave the Soviet army and join a national Lithuanian army, it would have been extremely difficult for Moscow to do anything except what it did.
Lord Brabazon of Tara: My Lords, I am not sure that I can comment on the details which the noble Lord, Lord Kennet, asked in his question. It is true that there is the possibility of secession under the law of the Soviet Union, and that is the path which Lithuania should be adopting.
Viscount St. Davids: My Lords, has the noble Lord noticed the similarity to the occasion when Russia invaded Finland? Then the United States said that it sympathised and the Finnish ambassador in Washington, in somewhat unambassadorial frame, said how pleased he was that the United States, with its vast resources of men, money and materials had sent its sympathy.
Lord Brabazon of Tara: My Lords, I am sure that that is of great interest to the House. I do not think that we are in a position to take any military action to assist the Lithuanians, even if we wished to do so.

Diplomatic Service: Language Training
2.56 p.m.
Lord Rodney Lord Rodney asked Her Majesty's Government:
What language qualifications are required by applicants to the foreign service.
Lord Brabazon of Tara: My Lords, no language qualifications are required by applicants to the diplomatic service. The service looks for candidates to show aptitude and interest in learning languages, which are then brought on as necessary with targeted language training.
Lord Rodney: My Lords, I thank my noble friend for that Answer, which on the face of it does not seem very satisfactory or reassuring. Can he say a little more about the policy of the Foreign Office

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and the ability of its members to speak foreign languages? Can he say what procedure they follow to ensure that the majority of our diplomats speak foreign languages?
Lord Brabazon of Tara: My Lords, the reason we do not restrict applicants to the diplomatic service to those who already have a language qualification is twofold. First, it would considerably restrict our recruitment at a time when competition for high quality graduates is intense. Secondly, there is no evidence that language students make better diplomats than non-language students. It is easier to train a recruit who is good in other respects to learn a language than it is to turn someone with a language qualification into a diplomat if he does not have the basic characteristics for diplomacy.
All administrative grade applicants who are successful at the Civil Service selection board are tested for the aptitude to learn languages before attending their final selection board. Once they are accepted into the diplomatic service, there is an intensive programme of language training, depending on where they are to be posted. Approximately 50 per cent. of the administrative grade are given intensive language training for specific postings after their first year or two in the diplomatic service.
Lord Tordoff: My Lords, is it a qualification that those applicants should speak English?
Lord Brabazon of Tara: Certainly, my Lords. I should hope that as they are all graduate entrants they should be fully qualified to speak English.
Lord Cledwyn of Penrhos: My Lords, while accepting the proposition in the first part of the noble Lord's Answer, I should like to ask this question. Will he tell the House the level of graduates in languages that are recruited by the Foreign Office every year, and also what resources are allocated to language training for existing Foreign Office employees?
Lord Brabazon of Tara: My Lords, I can answer both questions. Last year 32 per cent. of administrative grade new entrants had pure language degrees, and a further 5 per cent. had degrees involving languages. With regard to resources allocated to training new staff, as I have said, 50 per cent. of the administrative grade new entrants are given intensive language training for specific postings after their first year or two in the diplomatic service; others receive training at a later stage in their career. All officers are given pre-posting language training as necessary, which involves training in the United Kingdom and may involve immersion training depending on the language and the level the officer is required to reach.
I shall give two examples. Someone being posted to Italy would receive four months' training in Italian in the UK, followed by one month's immersion training in that country. For a more difficult language, such as Chinese or Japanese, he would receive 10 months' training in the United Kingdom
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followed by 12 months' training in that particular country.
Lord Jenkin of Roding: My Lords, my noble friend mentioned Japanese. Is not the justification for the Foreign Office's sensible policy that he outlined to the House the fact that for many years in our embassy in Tokyo we have had far more fluent Japanese speakers than are to be found in the embassies of any other European country, and, I suspect, of any other country in the world?
Lord Brabazon of Tara: My Lords, I am grateful to my noble friend for his observation. I know that he takes a close interest in Japanese matters. As I said, new entrants have 10 months' training in the United Kingdom followed by 12 months' training in Japan, providing unique qualifications compared with others.
Baroness Ewart-Biggs: My Lords, can the Minister say whether diplomats' wives are automatically given language training? Is it not important for the wives also to be well versed in the language of the country to which their husbands are accredited?
Lord Brabazon of Tara: My Lords, nowadays we refer to them as spouses, of course. All officers and their spouses are entitled to 100 hours' tuition in the language of the country to which they are to be posted, and also tuition in French, German and Spanish.
Lord Jenkins of Hillhead: My Lords, is the noble Lord aware that while it is highly desirable that we should improve our British linguistic qualifications (which, alas, are not high) in my experience by far the most distinguished British diplomat of my generation—judged by posts held and results achieved—was almost as bad a linguist as myself?
Lord Brabazon of Tara: My Lords, without wishing to ask the name of the person to whom the noble Lord refers, there is not much I can say in reply to his question.

The Blandford Fly
3.1 p.m.
Baroness Sharpies Baroness Sharpies asked Her Majesty's Government:
Why, when the preliminary trials to control the Blandford Fly were successful, permission was not given for a full-scale treatment on the River Stour in April.
The Minister of State, Department of Trade and Industry (Lord Trefgarne): My Lords approval for full-scale treatment of the River Stour was issued on 12th March.
Baroness Sharpies: My Lords, I thank my noble friend for that unexpected reply: my information is somewhat different. Can my noble friend say how many sites on the River Stour will be attacked with BTI and how much the cost is estimated to be?
Lord Trefgarne: My Lords, approval has been given for treating eight sites on the River Stour at an estimated cost, I understand, of £70,000.

Business
3.2 p.m.
Lord Denham: My Lords, at a convenient moment after 3.30 this afternoon my noble friend the Leader of the House will, with the leave of the House, repeat a Statement that is to be made in another place on the informal European Council Meeting in Dublin.
It may be for the convenience of the House if I announce that the Committee stage of the Law Reform (Miscellaneous Provisions) (Scotland) Bill will be adjourned at about 7.30 p.m. for about one hour and that during this adjournment the Northern Ireland (Emergency Provisions) Act 1978 (Amendment) Order 1990 will be taken.

Business of the House: Debates, 9th May
Lord Belstead: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the debates on the Motions in the names of the Earl of Shannon and the Earl Baldwin of Bewdley set down for 9th May shall each be limited to 2½ hours and that Standing Order 35 and paragraphs 10 to 13 of the Rules for the Conduct of Short Debates shall apply to each debate.—(Lord Belstead.)
On Question, Motion agreed to.

Law Reform (Miscellaneous Provisions) (Scotland) Bill [H.L.]
3.3 p.m.
The Lard Advocate (Lord Fraser of Carmyllie): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Fraser of Carmyllie.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 286G:
After Clause 42, insert the following new clause:
("Drug trafficking confiscation orders
Registration and enforcement of external confiscation orders.
The following sections shall be substiuted for section 30 of the Criminal Justice (Scotland) Act 1987—
"Enforcement of other external orders.
30.—(1) Her Majesty may by Order in Council—
(a) direct in relation to a country or territory outside the United Kingdom designated by the order ("a designated country") that, subject to such modifications as may be specified, this Part of this Act shall apply to external confiscation orders and to proceedings which have been or are to be instituted in the designated country and may result in an external confiscation order being made there;
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(b) make—

(i) such provision in connection with the taking of action in the designated country with a view to satisfying a confiscation order; and

(ii) such provision as to evidence or proof of any matter for the purposes of this section and section 30A of this Act: and

(iii) such incidental, consequential and transitional provision, as appears to Her Majesty to be expedient; and

(c) without prejudice to the generality of this subsection, direct that in such circumstances as may be specified proceeds which arise out of action taken in the designated country with a view to satisfying a confiscation order shall be treated as reducing the amount payable under the order to such extent as may be specified.
(2) In this Part of this Act—
"external confiscation order" means an order made by a court in a designated country for the purpose of recovering payments or other rewards received in connection with drug trafficking or their value; and
"modifications" includes additions, alterations and omissions.
(3) An Order in Council under this section may make different provision for different cases or classes of case.
(4) The power to make an Order in Council under this section includes power to modify this Part of this Act in such a way as to confer power on a person to exercise a discretion.
(5) An Order in Council under this section shall not be made unless a draft of the Order has been laid before Parliament and approved by a resolution of each House of Parliament. Registration of external confiscation orders.
30A.—(1) On an application made by or on behalf of the Government of a designated country, the Court of Session may register an external confiscation order made there if—

(a) it is satisfied that at the time of registration the order is in force and not subject to appeal;

(b) it is satisfied, where the person against whom the order is made did not appear in the proceedings, that he received notice of the proceedings in sufficient time to enable him to defend them; and

(c) it is of the opinion that enforcing the order in Scotland would not be contrary to the interests of justice.

(2) In subsection (1) above "appeal" includes—

(a) any proceedings by way of discharging or setting aside a judgment; and

(b) an application for a new trial or a stay of execution.

(3) The Court of Session shall cancel the registration of an external confiscation order if it appears to the court that the order has been satisfied by payment of the amount due under it or by the person against whom it was made serving imprisonment in default of payment or by any other means.".").
The noble and learned Lord said: In moving this amendment it might be convenient if I indicate at this stage that I am speaking also to Amendment No. 304AA which is consequential. Although at first sight these amendments look formidable they are in fact purely technical. They correct a deficiency in the Criminal Justice (Scotland) Act 1987 with regard to requests from overseas countries for the confiscation of proceeds of drug trafficking.
The problem of drug trafficking is of concern to governments world wide. With a view to assisting enforcement authorities in other countries in the fight against drug trafficking, this Government have been concluding agreements with various foreign countries on mutual assistance in tracing, freezing, and confiscating the proceeds of drug trafficking. Agreements have been signed with a number of countries including the United States of America, Mexico and Spain. Unfortunately, because of the deficiency in the Criminal Justice (Scotland) Act 1987, it is not possible for us to make an Order in Council extending these agreements to Scotland. The

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amendments before the Committee would rectify that position and bring Scotland on course to take a full part in the fight against this evil trade. I beg to move.
Lord Macaulay of Bragar: We on this side of the Chamber welcome this reform to law in connection with drug trafficking. We agree with the noble and learned Lord that it is an evil trade and that we must do what we can to stamp it out all over the world.
On Question, amendment agreed to.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 287:
After Clause 42, insert the following new clause:
("Amendments to s.8, Administration of Justice Act 1982.
Section 8 of the Administration of Justice Act 1982 shall be amended as follows:—

(a) in subsection (1) for the words "have been rendered" there shall be substituted "have been or will be rendered";

(b) in subsection (1) for the word "repayment" there shall be substituted "payment"; and

(c) in subsection (1) after the word "incurred" there shall be inserted "or to be incurred".").

The noble and learned Lord said: The amendment is designed to correct a minor defect in the Administration of Justice Act. This provides for compensation to be awarded where services have been rendered to an injured party by a relative. The difficulty is that, unlike in England, damages can only be awarded where services have been rendered and therefore do not cover the future. Often in the most tragic cases it is the future that has to be considered as the more heavy responsibility.
I am aware that the noble and learned Lord's learned friend the Solicitor-General for Scotland discussed the amendment with the Law Commission but I am not aware of the result. Therefore, I merely move the amendment in the hope that the noble and learned Lord will be prepared at least to take it away and think about it. I beg to move.
Lord Fraser of Carmyllie: As the noble and learned Lord said, the Scottish Law Commission, on whose recommendations Section 8 of the Administration of Justice Act 1982 is based, is currently considering this question in the light of the recent case of Forsyth's Curator Bonis v. Govan Shipbuilders 1989. My right honourable friend the Secretary of State for Scotland has asked the commission to provide advice on this important matter and it has undertaken to give it priority. The matter has already been discussed with the Solicitor-General for Scotland, as the noble and learned Lord said.
My right honourable friend the Secretary of State for Scotland will give urgent consideration to the Law Commission's recommendations and, if appropriate, will consider bringing forward a government amendment at a later stage of the Bill. From what I understand, the commission is likely to take a slightly different approach to that advanced by the noble and learned Lord, but the end purpose is precisely the same. Given that assurance, I hope the noble and learned Lord will feel able to withdraw his amendment.
Lord Morton of Shuna: I am pleased to hear what the noble and learned Lord said. I therefore ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 43 [Restriction of periods of non-cohabitation required in relation to actions of divorce]:
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 288:
Page 47, line 9, leave out paragraph (b).
The noble and learned Lord said: In moving this amendment I speak also to Amendment No. 289. At Second Reading I raised the question of whether the reduction in the period of non-cohabitation meant that divorce would become too rapid a process. The effect of the Bill would be that, with consent, divorce would be granted after a separation of one year, changing from two years. Where there was no consent the period of five years would be reduced to two years.
Separation leading to divorce is a traumatic experience for the parties concerned. I suggest that sufficient time should be allowed for the parties to be sure that they are doing what they really believe is correct. If there are children of the marriage it is important that proper arrangements are arrived at which are suitable and accepted by the parties in the best interests of the children.
Often the conciliation services are able to help; but it all takes time. In moving this amendment I suggest that the periods of time in the Bill are too short. I propose through Amendment No. 288 that we retain the period of two years and through Amendment No. 289 that we change the five years to three years instead of the two years specified in the Bill. I beg to move.
Lord Campbell of Alloway: I support this amendment, to which my name is attached. I originally tabled it as a probing amendment. Since then the Lords' and Commons' All-Party Family and Child Protection Group has expressed considerable concern. Clause 43 as it stands might well adversely affect the public concept of marriage and devalue the institution of marriage to an unacceptable degree.
It is in that spirit that I hope my noble and learned friend may be able to take this amendment on board and reconsider it in the light of the reasons given by my noble and learned friend Lord Morton of Shuna and the concern expressed by the all-party group.
Lord Macaulay of Bragar: We on this side of the Committee also support this amendment. It is necessary that people should have time to think matters through properly rather than rush into the ultimate stages of divorce. I do not wish to sound pompous, but it is one of the sad facts of life today that I have received no representation from any church organisation as regards the changes being made in the divorce law. Perhaps that is a sign of the times. It may be that the institution of marriage is becoming out of date and the cheapest thing may be to destroy it. I say that in a rather flippant way.

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However, it is rather sad that, as I have said, neither I nor my noble friend Lord Carmichael has had any representations from any church organisation on this matter.
Lord Hailsham of Saint Marylebone: I hope that the Committee will forgive me for intervening in this Scottish domestic dispute. Ever since the Act of Union there have been many reasons why the Scots have desired to have their own separate system of law. That system has served them very well to the present day. I venture to suggest both to my noble and learned friend on the Front Bench and to Members of the Committee who have spoken in this debate that the institution of marriage should be common to both parts of Great Britain. It is not really conducive to respect for the institution of marriage to have different periods of time affecting the continuance of marriage and divorce. Perhaps the way forward is to try to keep the two periods in step with one another.
Lord Mackie of Benshie: I hope that in his reply the Minister will be able to give some reasons and, for example, give the number of marriages which can be saved by conciliation after a year. If there is no conciliation after a year it is unlikely that further efforts will be successful. After all, the break-up of a marriage is itself a terrific decision. If there is no conciliation within a year I should like to see figures showing the success rate before agreeing with the amendment.
The Earl of Perth: I agree with those who advocate a longer period. I am ashamed to say that I am not aware of the rule in England. I hope and suspect that it is two years. In any event, one year is an awfully short time. I very much hope that this matter is not a question for dispute. I hope that the Government will bear in mind how all sides of the Committee have advocated leaving the period at two years and changing from five years to three years.
Baroness Phillips: In supporting the amendment I say to the noble and learned Lord, speaking as an Englishwoman, that we all know that the Scots have frequently led in the field of law as they have in education. Surely the sensible course would be for us to accept the amendment and then to change the English law.
Lord Campbell of Alloway: I wish to put the record straight about religious associations. I think the Committee knows that I am a Protestant. I have received a letter from the Catholic Press and Media Office as regards Amendment No. 289. It reads:
"I write to assure you of our support for the Amendment".
I understand that the Catholic press service was established by the bishops of Scotland.
The Earl of Balfour: I cannot support Amendment No. 288 because that is where both parties have agreed 1o a divorce. As regards Amendment No. 289, there is one factor that should be taken into consideration. Unfortunately, from time to time men and women have a change of life. A man or a woman can be very unstable for a period of up
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to three years. That difficulty can be helped by gynaecological medicine. As regards Amendment No. 289, a marriage may be saved if the period is set at three years as opposed to two years.
The Earl of Selkirk: I support what the noble and learned Lord, Lord Morton of Shuna, has said. I was responsible for bringing in the 1975 Act which introduced the principle of the breakdown of marriage. I am sure that that principle is right and that we all accept it today. The Scottish Law Commission has gone a little too far. I have great respect for that body. I recall that when the late Lord Gardiner introduced this system I was very critical of it. I did not know the form that it would take. I now regard it with the greatest respect.
In the course of the arguments a little too much attention was paid to people who had already been through the divorce procedure. If one gets caught up in divorce there is much to be said for making the procedure simple, straightforward and short. However, let us be quite frank: two-thirds of the people of Scotland have never had anything to do with divorce. To my mind they are more important than those who have been involved in divorce.
The longer period which has been mentioned is particularly important. Whatever the future may be for this matter, we will not again lengthen the period of waiting. We should go slowly on this issue. I say to my noble and learned friend Lord Hailsham that there is a big difference between two years and three years. There are occasions when both husband and wife agree that the marriage has broken down and they have come to that conclusion within two years. However, there are very often reasons why one party does not agree. In those circumstances there must be a reasonable time. Three years is not an excessive period in that respect. There may be all kinds of reasons for wanting extra time. There may be financial problems and the question of the house and the children which may make one party anxious for divorce and the other not so willing to take that step. I support this amendment. It goes as far as it is wise to go at the present time.
3.15 p.m.
Lord Fraser of Carmyllie: Amendment No. 288 tabled by the noble and learned Lords, Lord Morton and Lord McCluskey, seeks to retain two years as the period of separation for divorce with the consent of both parties instead of the reduced period of one year proposed in the Bill. In making these proposals to alter the periods the Scottish Law Commission, on whose recommendation these proposals are based, stated the situation shortly and simply. It said that the periods chosen are arbitrary within a certain range.
I immediately accept that there is no absolutely correct figure to be settled. As regards Amendment No. 288, it is worthy of note that when the Law Society of Scotland considered this matter and offered its view to the Scottish Law Commission it indicated that where there was consent the period, far from being restricted to one year, should be six months. I mention that not because I agree with it but because it gives some indication of the range of

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opinion that has been expressed in relation to this matter.
Amendment No. 289 proposes extending the period of divorce without consent from two years, as the clause proposes at present, to three years. Members of the Committee will have observed that if Amendment No. 288 is agreed to and Amendment No. 289 is not, the two separation periods will be the same irrespective of whether there has been consent. Interestingly, the Scottish Law Commission considered but rejected that possibility in its report. However, that does not appear to be the result that the noble and learned Lords' amendment seeks to achieve.
While I accept what my noble and learned friend Lord Hailsham had to say about matters of consistorial law, one would not want Scotland to march significantly out of step with England and Wales. We have diverged in the past and periods have been different. As I understand matters, the approach that the Law Commission on this side of the Border may be taking as it looks again at divorce may be very different from what is being proposed here. Although there is some desirability in keeping things the same, it would be a wrong approach simply to suggest that, if England and Wales wish to go in a wholly different direction on divorce, Scotland should be stuck with what is essentially the position in England and Wales at the present time.
The main criticism of the existing law is that the present periods of separation are unnecessarily long and have the effect of causing many people to rely on proving unreasonable behaviour for the sole purpose of obtaining an earlier divorce. This can frequently involve making allegations of an unpleasant and exaggerated nature against the other party, which in turn makes negotiations more bitter, prolonged and expensive and settlements harder to reach. I spent some time in private practice dealing with these matters. Nothing is more unattractive and difficult than that there should be a divorce in which parties make extraordinary and exaggerated allegations against each other. There is a group in the middle which suffers as a consequence—the children of the marriage in question.
The Scottish Law Commission carried out consultations and research which indicated that a shortening of the separation periods would be widely supported. Its consultations included obtaining comments from some 30 organisations on the commission's earlier discussion paper and conducting a public opinion survey involving some 696 persons. The noble Earl, Lord Selkirk, is correct that probably some two-thirds of the people in Scotland have managed to avoid the unhappiness of divorce, but 64 per cent., having had no experience of divorce, supported the proposals put forward by the Scottish Law Commission as a recommendation in the Bill.
There emerged a view on consultation that separation periods of one year with consent and two years without consent would be fairer than the present two-year and five-year periods which public opinion, certainly in Scotland, regards as unduly
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repressive. Such reduced periods should reduce the number of acrimonious disputes generated by recourse to behavioural grounds but will be long enough to prevent the risk of precipitate divorce and the undermining of marriage as a serious lifelong commitment. No one wants to take the hardback off the marriage certificate, but once the marriage has broken down there is little purpose in unduly prolonging the period before divorce can be achieved.
While clearly a case can be argued in support of the view held by noble and learned Lords that one year's separation with consent and two years without are too short, it should be observed, on the basis of the research to which I referred, that that view does not entirely accord with views in Scotland. Three years has been suggested as a more appropriate period where there is no consent. Such a period would be at variance with the current period of desertion. In this clause the ground of desertion is removed. The practical effect of the amendments would be that the period for desertion would in a sense be extended from two years to three years.
There is no place for such a ground if divorce can in any event be obtained after a separation of two years. Accordingly, if the Committee takes the view that three years is a more appropriate period of separation for divorce without consent, it may be necessary to reconsider whether the desertion ground ought to be retained. We should otherwise be placing a significant group of people—those who seek divorce on the ground of desertion—in a worse position than they are now.
It may interest the Committee to know that the Scottish Marriage Guidance Council wrote to the Scottish Home and Health Department to express its support the commission's proposals. As well as describing the proposals as "eminently sensible", the council stated:
"We can appreciate that others may be concerned about the reduction of time in relation to encouraging couples to take marriage less seriously but can honestly claim that we, in our work, have not experienced this attitude".
No absolute figure can be argued for, but given the careful work undertaken by the Scottish Law Commission, the wide range of views canvassed in Scotland and the desirability of avoiding any unnecessary resort to the ground of unreasonable behaviour, I believe that the provisions of the Bill as they stand at present should be maintained and both of the amendments should be rejected.
The Earl of Perth: Is there not room for compromise? One year is a short period. It is a question of easy come, easy go. Can we not say one-and-a-half years? There is no magic in one year to two years. As the noble Earl, Lord Selkirk, said, once the period is shortened one can never go back. This is a serious matter. For most of us marriage is something of a sacrament. Even those to whom it is not enter it, I hope, with great seriousness. I hope that the period will be a little longer.
Lord Fraser of Carmyllie: One year is proposed where there is an agreement by both parties that the marriage is effectively at an end. Once parties have

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resolved that their marriage is over—each marriage seems to have its own breaking point—there is little purpose in protracting the period until the parties can secure a divorce. What particularly concerns me is that if the period is protracted, the children, who are often at the centre of difficulties, will experience even greater problems than they otherwise would.
Lord Morton of Shuna: I am grateful to all noble and learned and noble Lords who have spoken. What the noble and learned Lord, Lord Hailsham, said about keeping the two countries in step is of great importance. I should like to emphasise that the fact of separation and the recognition of an irretrievable breakdown in a marriage are two entirely different matters which happen at different times. Therefore, we are perhaps going too fast in accepting the Law Commission's view.
I was interested that a member of Her Majesty's Government should rely on public opinion surveys in Scotland. Perhaps some of those in Scotland might wish that the Government paid more attention to them on other matters. But 696 people is not necessarily a full survey of Scottish views. I shall ask leave to withdraw the amendment at this stage but I may come back to it later.
Amendment, by leave, withdrawn.
[Amendment No. 289 not moved.]
Clause 43 agreed to.
Lord Morton of Shuna Lord Morton of Shuna had given notice of his intention to move Amendment No. 290:
After Clause 43, insert the following new clause:
("Continued exercise of occupancy rights after dealing
In section 6 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 (continued exercise of occupancy rights after dealing)—

(a) in subsection (3)(e) the words "at or before the time of the dealing" shall be omitted:

(b) subsection (3)(e)(i) shall be amended to read "an affidavit sworn or affirmed by the seller declaring that the subjects of sale are not or were not at the time of the dealing a matrimonial home in relation to which a spouse of the seller has or had occupancy rights; or").

The noble and learned Lord said: This amendment is grouped with Amendments Nos. 302UA and 302ZA. The amendment in my name has been noticed by the noble and learned Lord the Lord Advocate who has tabled his own amendment which covers the point suitably. Therefore I shall not move Amendment No. 290 but merely express my thanks to the noble and learned Lord for what he has done.
[Amendment No. 290 not moved.]
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 290A:
After Clause 43, insert the following new clause:
("Confidentiality of conciliation proceedings. In section 2 of the Divorce (Scotland) Act 1976 (encouragement of reconciliation) there shall be added—
"(5) Where the parties in an action for divorce engage in any conciliation procedure designated by act of sederunt, anything communicated to a conciliator in connection with such procedures shall be privileged information and not admissible as evidence in any proceedings under this Act except with the consent of both parties and the consent of the conciliator." ").
The noble and learned Lord said: I hope that this amendment will be acceptable. It relates to
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the confidentiality of people engaged in conciliation proceedings. The conciliation service exists to encourage parties who have decided to divorce to reach reasonable and proper decisions about custody of and access to children and about financial provision. It is important that the people engaged in the conciliation exercise should be free from any risk that they will be cited to attend court and give evidence about what was said during the conciliation process.
The amendment is in line with a practice direction of the Family Division which was issued as far back as November 1982. I hope that it meets with the approval of the noble and learned Lord, Lord Hailsham, as it brings Scotland in line with England. In my view it would be a useful measure. I beg to move.
3.30 p.m.
Lord Fraser of Carmyllie: I should immediately say that I have some sympathy with the principle of this amendment. It is clearly desirable that parties should enter the conciliation process with no inhibitions that what they might say could subsequently be used against them if the conciliation failed and they had to resume their litigation. There are, however, issues which I believe require further and serious consideration. In particular, it would be necessary to achieve a balance between the desirability of making available to the court all relevant evidence in a case and the understandable concern about confidentiality in relation to the conciliation proceedings. Clearly we would not wish to provide blanket confidentiality which might preclude the parties or the conciliator giving evidence on, for example, child abuse. We should also wish to avoid creating any incentive to repeat something to a conciliator so as to attract confidentiality.
In addition, the noble and learned Lord's amendment would appear to restrict confidentiality to those cases which have been referred by the court within actions of divorce. As conciliation is believed to be most effective where couples resort to the service prior to any court action, it would seem desirable to ensure that the rule of confidentiality can also be applied in such circumstances and, moreover, in relation to actions relating solely to custody of or access to children. To restrict confidentiality to actions for divorce might create a bias towards awaiting court proceedings before resorting to conciliation. Such a delay would be undesirable.
I should also point out that Section 2 of the Divorce (Scotland) Act 1976, which the noble and learned Lord's amendment seeks to amend, deals with "reconciliation" rather than conciliation. I believe that these points have to be addressed before we seek to alter the law in the manner which the noble and learned Lord has suggested. I understand that the Law Commissions for both Scotland and England have been giving some thought to these issues which are not easily resolved. I would like to thank the noble and learned Lord for raising this important matter, but I would ask him to withdraw his amendment with the assurance that the

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Government clearly recognise that there may be a problem in this area and that we are as anxious as he is to find a good and practical solution. However, I believe that further work on this issue is required.
Lord Morton of Shuna: I am most grateful to the noble and learned Lord for his helpful comments, even if he was not prepared to accept the amendment. In the light of those comments, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 44 [Matrimonial interdicts]:
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 291:
Page 47, line 19, after ("arrest" ") insert ("for the words "upon the termination of the marriage" there shall be substituted the words "five years from the date when it was granted";").
The noble and learned Lord said: This amendment deals with the unfortunate situation which arises all too often of violence in the marriage and the requirement for a "power of arrest" and in interdict. The difficulty which will arise if the period of unagreed divorce is reduced from five years to three, or even to two years, is that one reduces the protection available to the wife—usually—who is subject to the violence. At present the court can give an interdict which lasts until the divorce takes effect and attached to that is a power of arrest. For that reason many battered wives choose to take the five-year period in order to have the protection of the court for that period of time after the separation.
If we are to reduce the period to two years, it naturally follows that the period of protection available to the battered wife is also reduced. It is for that reason that Amendment No. 291, which is in very much the same terms as Amendment No. 291A with which it is grouped, suggests a change in the wording so that the interdict and the right of arrest will last for five years from the date it was granted rather than until the decree of divorce. That has a subsidiary but very helpful effect in that it gives the police knowledge of when the right of arrest still subsists.
At present the police have considerable difficulty—which the Law Commission has recognised—in that no one tells them when the divorce is pronounced. Therefore, they do not know whether the interdict with a right of arrest is still in force. However, if you have an interdict with a five-year maximum period attached to it, the police will automatically know when that period expires. Such an interdict could always be recalled by the court at any time. I beg to move.
Lord Carmichael of Kelvingrove: My name is associated with Amendment No. 291A, which, as the noble and learned Lord, Lord Morton of Shuna, said, is very closely related to his amendment. The information I have on the subject is in a way quite plaintive. It comes mainly from Scottish Women's Aid, which is extremely concerned about the matter. It does not disagree with the reduction in the time
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for a divorce being implemented but it is concerned about the protection of women if the time limit were to be reduced. From its very great experience in such matters, the organisation knows that many men who have abused their partners during the course of their relationship will continue to harrass, assault and intimidate them after separation and even after divorce has taken place. It believes that it is essential for the protection of these women that this amendment should be accepted so as to give the women the necessary protection. I also support the remarks made by the noble and learned Lord, Lord Morton of Shuna.
Lord Fraser of Carmyllie: This is a matter which the Scottish Law Commission addressed following representations made to it by Scottish Women's Aid when it was considering the reform of grounds for divorce. However, the commission took the view that this important question was not directly linked with the divorce reform which it recommended and which is given effect to by Clause 43. It further suggested that consideration of this question should not delay implementation of that reform.
As the commission noted in its report, a question of principle arises: is it justifiable to attach a power of arrest to an interdict relating to the conduct of former spouses but not to interdicts relating to conduct between other people? The commission's view was that in the absence of consultation it would be inappropriate to make any such recommendation in its report. It pointed out that a divorced spouse has the same protection against assault or breach of the peace as does any other citizen.
I believe that there should be consultation in this important matter and I note that the Scottish Law Commission, in one of its latest discussion papers (No. 83) on Family Law Pre-consolidation Reform which was issued on 29th March of this year, has sought comments on the desirability of proceeding as the noble and learned Lord's amendment suggests. The commission also addressed the related question of whether the definition of "matrimonial interdict" should be wide enough to cover an interdict against molestation of a former spouse.
In my view it would be preferable to undertake such consultation before proceeding to amend the Matrimonial Homes (Family Protection) (Scotland) Act 1981 in the manner that the amendment would require. However, given the consultation which is taking place—and it is not just a vague idea; it has reached the stage of the Scottish Law Commission putting forward this proposal in a discussion paper—I invite the noble and learned Lord to withdraw the amendment.
Lord Morton of Shuna: I am grateful to the noble and learned Lord for what he has said. It seems to me that the Law Commission's views, as reported by him, are a typical lawyer's academic response to the problem. I should have thought that if one is or has been a battered wife, one is far more likely to be attacked by someone one has been married to than by an absolute stranger. There is therefore something to be said for keeping a power of arrest. But in view of what has been said and the necessity for

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consultation—I agree that one should not bring in radical reforms to the law without proper consultation, a matter that we may come to in a future amendment—I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 291A not moved.]
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 291B:
Page 47, line 29, at end insert:
("( ) In section 18(3) after the words "section 15" leave out the words "except the words in subsection (2) from "and such powers of arrest" to the end.").
The noble Lord said: It might be for the convenience of the Committee if I speak also to Amendments Nos. 295 and 297A. They relate to the He using (Scotland) Act 1987. The amendment inserts in the Act that it should not be competent for a (lousing authority to hold a person to be intentionally homeless solely on the grounds that he or she does not intend to exercise his or her rights under the Matrimonial Homes (Scotland) Act 1981.
The purpose of the amendments is to ensure that local authorities do not classify as intentionally homeless women suffering abuse who choose not to exercise their rights under the Act. The amendments aim to close what has now become a loophole in the existing homelessness legislation with regard to the rehousing of abused women. The introduction of the Matrimonial Homes (Scotland) Act aimed, among other things, to give women suffering from marital violence additional protection through, for example, exclusion orders if they wished to remain in the matrimonial home. It was never intended to be used as an alternative to rehousing under the homelessness legislation, if the latter was what the women chose, having taken into account all relevant factors, including the safety of herself and her children. That point was made clear during the passage of the Matrimonial Homes (Scotland) Bill and in subsequent guidance. I beg to move.
The Earl of Balfour: I am somewhat worried about the amendment because if my memory serves me rightly—it is some years since I served on a local council—in the case of council houses where a husband who is the householder under the council tenancy rules has behaved badly, the local authority has a power to evict him and put the family back into the home if he has thrown them out. The wording of this group of amendments gives me the impression that they could affect a private landlord. However sympathetically I as a private landlord might feel towards the battered wife, if the husband were the tenant I might be treading on dangerous legal ground if I attempted to help the wife, however badly the husband had behaved. That is the point that worries me about these amendments.
Lord Fraser of Carmyllie: The amendments relate essentially to the occupancy rights of cohabiting couples. I continue my refrain that the Scottish Law Commission is involved in this matter and intends to publish a discussion paper this month on the effects of cohabitation in private law as a precursor to
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the commission's proposed codification of Scottish family law. I understand that that particular point will be covered in the paper. I wish therefore to await the outcome of the commission's consultations and to resist undertaking any piecemeal amendment of the existing matrimonial homes legislation except where it is necessary to amend the Act for purposes of clarification.
With that brief explanation I hope that the noble Lord will appreciate that the matter is not one that has been neglected but compares with other matters that have already been discussed and is something that the Scottish Law Commission should consider after consultation.
Lord Carmichael of Kelvingrove: I am grateful to the Minister for his statement. He has given an assurance that the matter is being dealt with, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 291C:
Page 47, line 29, at end insert:
("() In section 17 of the Act of 1981, in subsection (5)(b)(iii) leave out "substantial risk of violence" and insert "substantial risk of breach of interdict" ").
The noble Lord said: The amendment again seeks to amend the Housing (Scotland) Act. It deals with homelessness. It is similar to the previous amendment that I moved. I ask the Committee's indulgence because I probably went ahead of myself with my arguments. The amendment is intended to close a loophole in the Matrimonial Homes (Scotland) Act and relates to the homelessness of a woman who feels that she has to leave the home because of the difficulties there. She should be able to claim that she is genuinely homeless. The Minister to some extent dealt with that point in his earlier reply. Perhaps he could tell me whether his earlier reply extends also to this amendment. I beg to move.
Lord Fraser of Carmyllie: The amendment seeks to tackle a problem encountered by some sheriffs in applying the provisions of Section 17(5)(b)(iii) which enable the sheriff to order the detention of a non-applicant spouse where the sheriff is satisfied that there is a substantial risk of violence by him against the applicant spouse or any child. The amendment would substitute the words,
"substantial risk of breach of interdict",
for,
"substantial risk of violence".
Arguably, that risk may be more easily assessed and certainly the immediate consequences of getting it wrong are less harmful.
There is a view that more radical revision of the Section 17 procedures may be required to render them more effective. In its discussion paper, Family Law: Pre-consolidation Reforms, which was published on 29th March this year the Scottish Law Commission explores the difficulties in operating that section and seeks views on a proposal to replace the Section 17 procedures with a new, simpler provision. In this instance it would seem preferable

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to deal with Section 17 in the context of the commission's proposals without embarking on the noble Lord's complicated proposals.
Lord Carmichael of Kelvingrove: I am again grateful to the noble and learned Lord the Lord Advocate, and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Belstead: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

European Council, Dublin, 28th April
3.47 p.m.
Lord Belstead: My Lords, with the leave of the House I should now like to repeat a Statement being made in another place by my right honourable friend the Prime Minister about the informal meeting of the European Council in Dublin on 28th April. The Statement is as follows:
"With permission, Mr. Speaker, I shall make a Statement on the informal meeting of the European Council in Dublin on 28th April, which I attended with my right honourable friend the Foreign Secretary. The text of the Council's conclusions has been placed in the Library of the House.
"The Council was convened for two main purposes: to consider the consequences for the European Community of German unification; and to discuss the way ahead in the Community's relations with Eastern Europe. We made useful progress on both issues.
"The Council agreed clear guidelines for the detailed discussions which will be necessary in order to incorporate East Germany into the Community, taking account of the interests of other member states. These discussions will cover trade, agriculture, fisheries, the environment and many other issues. It will be for the Commission to make proposals for any transitional arrangements which are necessary. I emphasised that derogations from Community law and practice should be brief and that we must avoid unfair competition and disruption to trade. These points are well understood by the Federal German Government.
"In the period before unification East Germany will have access to normal Community funds which have been set up to help Eastern Europe and will also be able to benefit from full access to the European Investment Bank. Chancellor Kohl indicated that the Federal Republic is not seeking any special fund for Community financial assistance to East Germany.
"A very welcome feature of the discussion on German unification was the strong support
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expressed by heads of government for NATO and that a united Germany should be a member of NATO. This corresponds very much to our own views and those of the United States.
As regards Eastern Europe, the Council reached two main conclusions: first, that assistance from the OECD Group of 24 countries ought to be extended to East Germany, Czechoslovakia, Yugoslavia, Bulgaria and Romania, as well as to Poland and Hungary as at present; and, secondly, that as soon as possible we should negotiate association agreements between the European Community and those Eastern European countries which are making decisive progress to market economies and genuine democracy. This responds to a British initiative before the Strasbourg European Council last December and we very much welcome the decision.
"The Council also provided an opportunity to take forward discussion on other items of European Community business, in particular political union. This has never been defined and it was clear from our discussion that there are widely differing views on what it covers. I pointed out that the term 'political union' raises anxieties among many people about a loss of national identity, national sovereignty and national institutions. I suggested that we should all make clear that political union does not mean, for example, giving up our separate heads of state, or our national parliaments, or our legal or electoral systems, or our defence through NATO.
"I also proposed that we indicate that we do not intend to alter the role of the Council of Ministers as the Community's main decision-making body, with ministers each accountable to their national parliaments; and that we are opposed to centralising powers in Europe when decisions are better taken by national parliaments and governments.
"If we could agree that none of these things would happen as a result of political union, we could show that many of the fears about it were groundless. I suggested that the positive way forward lay instead through ever closer co-operation among member states and reform of the Community's existing institutions to make them more effective and more efficient. We shall ourselves have constructive ideas to put forward for this.
"I found a number of these views shared by other heads of government. Indeed our discussions during the day, particularly on matters connected with foreign affairs and defence, showed very clearly that in practice we all continue to think in terms of keeping certain key issues as matters for national decision.
"We therefore agreed to instruct our foreign ministers to analyse more thoroughly what political union should cover and report back to the European Council at the end of June with a view to a decision then on the holding of an inter-governmental conference. Such a conference can of course be convened by a simple majority of member states. But its decisions have to be

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reached by unanimity and approved by national parliaments.
"I will summarise briefly the other main issues which we discussed. First, the Council confirmed the commitment to complete the European single market by 1992. Secondly, we agreed to intensify preparations for the inter-governmental conference on economic and monetary union which will start in December this year. We also set an objective of finishing the work of that conference in time to permit ratification of the results by the end of 1992. It is rather early to say at this stage how feasible such a target is. The results of this conference would have to come before this House, which has already expressed its views on stages 2 and 3 of the Delors plan. Thirdly, we confirmed our commitment to a successful conclusion to the Uruguay round of trade negotiations in the GATT. Fourthly, we repeated our desire to strengthen relations with EFTA nations and extend the single market to them. Fifthly, we asked our officials to make proposals in time for the next European Council for improving the effectiveness of the Community's co-operation against drug trafficking and drug abuse.
"Foreign ministers also discussed a number of international issues. They agreed a statement on Cyprus, as well as guidelines for our approach to the CSCE summit, which we expect will be held later this year. These texts are annexed to the Council's conclusions.
"This additional meeting of the European Council set the way ahead for the Community on several important issues. It was also an opportunity to put clearly on record Britain's views on what political union should and should not mean and not least our determination to defend the powers of this House."
My Lords, that concludes my right honourable friend's Statement.
3.56 p.m.
Lord Cledwyn of Penrhos: My Lords, we are all grateful to the noble Lord for repeating the Statement. As it makes plain, the crux of the discussion at the Dublin Summit was the movement towards political union. The meeting was certainly much less turbulent than was predicted. That was mainly, I think, because the Prime Minister was able to agree a four-stage programme which could lead to a European political state. Can the Minister clarify this? Are the Community leaders, or the majority of them, including France and Germany, working towards one centralised European government and parliament? The Prime Minister was reported as saying after the meeting that,
"Political union means different things to different people".
Can the noble Lord tell us what "political union" means to the Government and what policy they will aim for during the next months of negotiation? For example, will the Government be prepared to surrender more of our national sovereignty and contemplate a reduction in the powers of this Parliament in favour of the European Parliament?
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There is a vague reference to this in the Statement, but I believe that it is very much in our interests that it should be clarified.
Is not a clear and practical policy essential, since the Dublin Summit next month to which the noble Lord referred will propose that the constitutional issue will be put on the agenda for the Rome meeting in December? It is therefore vital that Parliament and the British people should know exactly where the Government stand on the central issues.
Does the noble Lord agree that a deep, fundamental division on political union, as well as possible division on economic and monetary union, would result in a major crisis in the Community? Is it not therefore as well that we should recognise that now rather than later on?
Speaking personally, there seems to me to be a case for inter-party talks in this country to see whether agreement can be reached on the main issues, although I concede that that may be difficult. But as these will be some of the most important decisions taken in the history of this country, we should treat them with the gravity they deserve.
We welcome the decision on OECD assistance for the East European countries. We note the conclusions reached on German reunification. I particularly noted that Her Majesty's Government agree that East Germany should enter the Community and that the reunified Germany will be a member of NATO. Can the noble Lord say whether we have any further assurance that the Soviet Union will agree to this? Has it modified its views on these two aspects of reunification? We further note and support the other important agreements on drug trafficking and the GATT trade negotiations.
Those are the comments that I have to make. On the major issue of political union I shall be most grateful to have the views of the noble Lord.
Lord Bonham-Carter: My Lords, I am grateful to the noble Lord the Leader of the House for repeating the Statement made by his right honourable friend the Prime Minister in the House of Commons. The Statement is one of extreme significance and importance. It is ludicrous to suppose that we can discuss or examine it properly in the time available at this moment. I very much hope that the official channels will provide us with an opportunity to have an extended debate to discuss the implications of the decisions and proposals made at the Dublin Summit which are of great importance to the future of the country.
In following the noble Lord, Lord Cledwyn of Penrhos, I should like to make the following relatively brief points. I welcome greatly the change of tone which seemed apparent in the Statement that has just been made from that which was used in the past. It appears to be more one of argument and persuasion than of lecturing and hectoring. I regard that as extremely important. It is high time that this country and your Lordships recognised the danger of our becoming isolated not only within the European Community but also within the Commonwealth and equally from the United States. That is a very real and dangerous possibility and one to which we should pay attention.

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I believe that the recent Kohl-Mitterrand initiative on Lithuania, which was encouraged from Washington and from which this country was excluded, is a significant symptom of the isolation which we have reached and which means that our political role in guiding the destiny of the world in which we live has been severely diminished. We have to look to the future. It is perfectly clear that the role of NATO will change while the role of the European Community must deepen and may expand in response to German unification and in response to the events in Central and Eastern Europe. If we oppose the deepening and expansion of the role of the European Community I believe that we shall find ourselves isolated.
The central point of the Dublin Summit was political union. It seems to me that the Statement which the noble Lord the Leader of the House has just repeated to us put up a great many Aunt Sallys which simply do not exist. No one has ever suggested, least of all the French, that heads of state of the sovereign countries of the Community should be abandoned. No one has suggested that the role of national parliaments should be abolished, though clearly it will have to be adapted. When one talks about the electoral systems and the future of NATO one is talking about a different order of events. They will inevitably change. Those are not bottom-line issues on which this country will refuse to move.
National sovereignty, about which the Prime Minister speaks so often, has already been diminished by our signing of the Treaty of Rome and the Single European Act. If the democratic deficit which we talk about, and which is indeed important in the European Community, is to be dealt with then the role of the Council of Ministers must be altered. Its proceedings must be public and known to the people to whom it is responsible and its role must be changed.
Finally, if subsidiarity, which is a crucial element in the discussion, is to be enforced it must apply not only within the Community but within the countries which are also members of the Community.
I hope that the noble Lord the Leader of the House will provide an opportunity for us to discuss these crucial issues which affect the future of this country very significantly so that they can be given proper consideration.
Lord Belstead: My Lords, I am grateful to both noble Lords for their responses to the Statement which I have repeated. The noble Lord, Lord Bonham-Carter, suggested that the Statement raised a series of Aunt Sallys which were matters that had not been raised at all. Yet I was interested that the very first question which the noble Lord, Lord Cledwyn of Penrhos, asked was whether I would, despite what was said in the Statement, confirm on behalf of the Government where the United Kingdom stands over the question of government, parliament and sovereignty in the European Community of the future. I should say in reply to that point that the Government feel that we need to be certain that the proposals for political union, not
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so far defined, will not in any way affect the existence, role or functions of heads of state, including Her Majesty the Queen. That is one point on which I believe a great many people wish to be reassured—that we are not being drawn inexorably down a road to a federal Europe.
I should add that I believe that most people do not want to see more power accumulated and centralised in Brussels. Nor do we want to create the sort of Europe which it would be difficult for others to join later.
I was very interested that the noble Lord, Lord Bonham-Carter, at the very end of his remarks referred to the doctrine of subsidiarity. One of the positive ideas of the United Kingdom is that we should like to see specific recognition that the Community should only do those things which cannot be done better by member states.
The noble Lord, Lord Cledwyn of Penrhos, asked whether, if there was a deep fundamental division on political unity, that might not lead to a crisis in Europe in the future. That is why I believe that it is so terribly important that in the Statement which I have repeated it was recorded that there was unanimous agreement to instruct the foreign ministers of the Community countries to analyse more thoroughly what political union should cover and report back to the next European Council at the end of June with a view to a decision then on the holding of an intergovernmental conference. I believe that that was wise and constructive and that it was a consequence of the intervention of my right honouraable friend.
Finally, the noble Lord, Lord Cledwyn, asked me a direct question: could I give an assurance that the Soviet Union agrees to what has been said about the unanimous view taken by the member states at Dublin that not only is NATO important but that a united Germany should be a member of NATO? I can only say this afternoon that that was the unanimous agreement at Dublin. All the member states hope and believe that the Soviet Union will come to accept that it is in its own best interests that that should come to pass.
4.7 p.m.
Lord Walston: My Lords, we too on these Benches are grateful to the noble Lord for repeating the Statement. We are very glad that the atmosphere in Dublin on this ocasion was so much happier and so much more co-operative than at some similar meetings in the past. I should like to congratulate the Prime Minister on her contribution to bringing that about.
I have very little to add to what other noble Lords have already said. However, I should like simply to make one point, which I hope is not petty and carping. The Statement talks about the anxieties among many people about loss of national identity, national sovereignty, national institutions, and so on. A little later it states:
"We therefore agreed to instruct our foreign ministers to analyse more thoroughly".
It is all very well, and I am sure that it is constitutionally correct, for President Mitterrand to

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instruct his foreign minister as to what should be done. However, surely it is not consistent with our own habits in this country and our own constitution that any one minister, even the Prime Minister—the first among equals—should instruct not her or his foreign minister but Her Majesty's foreign minister. It should surely be a question of requesting her foreign minister to do that.
If there is already a feeling that the Prime Minister of this country can instruct her foreign minister, surely that is an indication that we have already gone much further than many of us would like towards a loss of our national sovereignty and national institutions. Perhaps the noble Lord can enlighten me.
Lord Belstead: My Lords, I do not want to quarrel with the noble Lord, Lord Walston, about the use of a verb. It was unanimously agreed at Dublin that an initial step that is needed is an examination and analysis by foreign ministers of whether a further treaty change is necessary. They and those who advise them are the experts. It was therefore felt by the heads of government that that was what they wanted their foreign ministers to do. There will then be the report back to the Council in June. That Council will then have to decide whether to hold a second intergovernmental conference in parallel with the economic and monetary union IGC. I hope that that answer more or less satisfies the noble Lord, even if there is a slight difference over the use of a verb.
Baroness Oppenheim-Barnes: My Lords, does my noble friend agree that the country owes a great deal of gratitude to the Prime Minister for the stalwart way in which she has defended the interests of this country as a good member of the Community, but with the interests of this country obviously first, in resisting the urge to rush towards conformity for conformity's sake, particularly in the areas of anxiety which she spelt out? Should she not receive the wholehearted support of both Houses in that respect?
Lord Belstead: My Lords, I am grateful to my noble friend Lady Oppenheim-Barnes. The Statement records that the Government have positive ideas for the future of the Community. I simply wish to assure the House that, in the discussions which are taking place, we shall not be slow 10 put forward constructive ideas.
The Earl of Perth: My Lords, the noble Lord, Lord Cledwyn of Penrhos, has made what seems to me a most interesting personal suggestion; namely, that the Government should hold inter-party consultation on those matters which are of the gravest importance for the whole country and on which our future depends. I hope that the Government will consider that personal suggestion most carefully.
Lord Belstead: My Lords, I am interested to see that the noble Earl makes that point in addition to it being made by the noble Lord the Leader of the Opposition. I must apologise for not having
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responded to it. I shall certainly take it on board and draw it to the attention of my right honourable friend.
Lord Jenkins of Hillhead: My Lords, is the noble Lord aware that the change of tone of this Statement compared with some other post-summit communiques is greatly to be welcomed? If, to achieve that, it is necessary that there should be tilting at windmills or pretending that the monarchy must be defended—I am not sure that the Spanish, Dutch, Belgian or Danish monarchies are greatly in favour of winding themselves up or that even the President of France is in favour of losing his status as head of state—as a smokescreen for a change of tone, so be it.
Is the noble Lord also aware that, although there is widespread support in this House for the doctrine of subsidiarity—I wish that we could find another word for that concept—by which issues should be dealt with only at the level which is most appropriate, the Government's cries against centralisation are bound to be received a little cynically so long as this country remains the most determinedly centralised country in the European Community? The other two traditional, centralised countries are Spain and France, both of which are endeavouring to devolve vigorously whereas that is constantly resisted in this country. Does the noble Lord agree with regard to subsidiarity, the principle of which is that matters should be decided at as low a level and as close to the people as possible, Brussels should not do too much, but that Whitehall should not do too much either?
Lord Belstead: My Lords, although the noble Lord, who is enormously experienced in European Community matters, welcomed the tone of my right honourable friend's Statement—I thank him for that—he nonetheless referred to the need, as he saw it, for a smokescreen. At the risk of being tedious, I must underline the fact that even those most active in pressing for political union agree that the important proposals for political union, over which the noble Lord, Lord Walston, and I had an exchange earlier, are linked to words which have no definition of any kind at the moment. It therefore seems sensible to try to proceed by a process of elimination. That is the process which my right honourable friend has started, although we shall now wait to see what comes back from the meetings and deliberations of the foreign ministers of the Twelve.
On the issue of subsidiarity, the noble Lord is perhaps a little out of touch with reality when he suggests that the Administration in this country does not stand as close to the people of this country as the administrations in other countries stand to their people, save, he said, for Spain and France. I simply do not think that that is the case. If the noble Lord believes that, he would be wise to go and talk to people about such matters as planning and the legal system in this country. He will find that he is not correct.
Lord Stoddart of Swindon: My Lords, is the noble Lord aware that, on the face of it, the Statement which he has just made and the attitude of the

923
Prime Minister in Dublin seems very reasonable and acceptable? However, does he agree that, certainly according to the press, there appears to be some confusion as to exactly what the Prime Minister means? Is it possible for the noble Lord the Leader of the House to clarify exactly what she means? Some of us remember that she initially opposed measures in the Single European Act. However, when it came to the push, she used a guillotine to force the Act through the House of Commons, although the House of Commons and this country stood to lose a great deal of sovereignty as a result of passing the Act. Are we again hearing a great many fine words from the Prime Minister only to find, when it comes to action, that this country is again asked to lose an amount—whatever that amount may be—of its sovereignty?
Will the noble Lord take seriously the suggestion made by my noble friend Lord Cledwyn about inter-party talks? The matter of this country's constitution, which has been built up over a thousand years, is important. There is already a Back-Bench consensus against federalism among all parties. Will the noble Lord take the matter seriously and put it to his right honourable friend the Prime Minister that she should try to proceed on an all-party basis before any deep constitutional changes are made?
Lord Belstead: My Lords, perhaps I may answer the noble Lord rather briefly because we have started to go over ground which has already been covered. He asked me what my right honourable friend the Prime Minister meant in her contributions to the Council. My right honourable friend meant that we must define the term "political union"; that we shall await the report of the foreign ministers; and that Britain will then contribute to a decision at the next European Council in the light of the foreign ministers' report on whether there should be an intergovernmental conference on the issue of political union.
The noble Lord put the same point about inter-party talks as that on which I responded to the noble Lord the Leader of the Opposition and my noble friend Lord Perth. The noble Lord, Lord Stoddart of Swindon, will forgive me if I say that the policy of noble Lords opposite on political union has not become wholly apparent during these exchanges.
Lord Kennet: My Lords, is it not sensible for the Government to continue thinking about the proper location of a reunited Germany in the scheme of things? Is it not asking a bit much of the Soviet Union that it should agree to a united, armed Germany in NATO? Should we not consider for a moment what we would think if the cookie had crumbled the other way and there was a proposal that there should be a united, armed Germany in the Warsaw Pact? Western Germany is bigger than Eastern Germany; but we have to try to see the situation from the other fellow's point of view.
My noble friend Lord Cledwyn asked whether the Government can state whether the Soviet Union has
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withdrawn its objection to a single Germany in NATO. The noble Lord the Leader of the House repeated that we on this side had no objection to it. Do we not all know perfectly well, and have known since it was first mooted, that the Soviet Union objects most strongly and is most unlikely to withdraw its objections? It was only the victory of the Right in East Germany as opposed to a victory of the Social Democrats that led to the matter being pressed so far as it has been pressed already. If anyone is alarmed by the economic advantage that might be gained by a reunited, neutral Germany in neither pact, do they think that that could be neutralised by a lowering of arms levels in the rest of Europe on both sides? I see that the noble Lord the Government Chief Whip looks anxious.
Lord Denham: My Lords, perhaps the noble Lord will forgive me if I interrupt him for just a moment. We are strictly limited to 20 minutes for this part of the discussion. I hope that the noble Lord will feel that it is much better to ask brief questions because that gives more people time to participate in those 20 minutes.
Lord Kennet: My Lords, the noble Lord is perfectly right. I cannot see the Clock from here. I shall forgo my last point.
Lord Belstead: My Lords, the quick answer to the noble Lord is that Germany is to be united, and the unanimous belief of the 12 member states is that a united Germany should be part of the NATO alliance.
Lord Ezra: My Lords, I have been involved in the Community for many years, mainly at the industrial and commercial level. Undoubtedly a very strong momentum has developed over the years toward firms with mixed ownerships getting together on a consortium basis and working more closely together. The fear of those who do that work at the commercial and industrial level is that their momentum may not be matched by the momentum at the political level. They fear that they may find obstacles at the political level; for example, in the exchange rates, or other arrangements which could stultify that highly desirable growth.
Will the Government confirm that they consider that momentum at the industrial and commercial level to be entirely desirable, and that they will seek to do everything possible at their level to promote it further?
Lord Belstead: My Lords, I do not think that there is anything that I can reasonably add to the Statement about the movement that is taking place in Europe. Political union is ground which we have covered again and again in the past 18 or 20 minutes, and I have nothing to add. The matter that we have not mentioned at all, which arises from the very interesting question that the noble Lord asks, is that of the single market. I am delighted that the statistics that the Commission made available at Dublin show that Britain is in the lead among all the nation states of the Community in implementing the directives to bring into effect the single market.
Lord Callaghan of Cardiff: My Lords, do the Government and the noble Lord not think that there is some relationship between Germany's membership of NATO and closer political union, however that may be defined? I should have some sympathy with the Prime Minister if she showed exasperation about the failure to define it. Are there not two real dangers for Europe? One is that its politics should be renationalised; the second is that Germany should stand independently. Is it not at least possible that Germany's membership of NATO will to some extent become dependent upon achieving a closer political union? Otherwise, is it not likely that if Germany is denied a closer political union and finds that membership of NATO will become a cause of great disturbance with the Soviet Union to which its relations are very closely tied, we could then have a Germany that would be independent, free floating and without political union? Can the noble Lord the Leader of the House say whether the Government have in mind the fact that there is a close connection between those two in the ultimate resort?
Lord Belstead: My Lords, the reply to that question should await the deliberations of the foreign ministers. At risk of repeating myself, the Government feel very strongly that they would like to see specific recognition that the Community should do only those things that cannot be done better by member states. Therefore we believe in the so-called doctrine of subsidiarity. The noble Lord said that nonetheless it is surely important that cohesion within the Community should take place so that a united Germany could feel confident that it would be a part of the NATO alliance. All I can say is that we know inevitably—indeed we have welcomed it—that both parts of Germany are on a course to become unified. Therefore it was interesting that it was agreed unanimously at Dublin by all the nation states that a united Germany should become part of NATO.
Lord Renton: My Lords, would my noble friend give an assurance that the Government do not follow the point put by the noble Lord, Lord Ezra; namely, that political union should follow commercial initiatives? Would not that place sovereignty at the mercy of commercial interests?
Lord Belstead: My Lords, the answer to my noble friend is yes. Perhaps I may just explain why I so readily say yes. I understand that one of the topics that was discussed at considerable length at Dublin and which started as an initiative from the United Kingdom was that inter-trade agreements with the Eastern bloc countries should now be embellished to became association agreements. However, those association agreements will not inevitably lead to the countries concerned becoming Members of the European Community. That step could be much further off and all the conditions will have to be right. Provided that the conditions are right, we shall no doubt welcome them. Therefore I agree with my noble friend, by giving the example of the association agreements with the Eastern bloc countries, that it is not right to say that commercial cohesion should inevitably inform political cohesion.
The Earl of Selkirk: My Lords, does the Common Market imply complete free trade throughout the European Community?
Lord Belstead: My Lords, I believe that the single European market to be achieved in 1992 comes at last very close indeed to being the Common Market which we envisaged joining some 17 years ago.
Lord Mackie of Benshie: My Lords, I noticed in the Statement that stress was laid on the importance of a unanimous decision. I should like to know the Government's attitude to majority voting. I can understand that for important decisions one might insist on anything up to a three-quarter majority before they were taken. If the Government are to insist on unanimous decisions, it places a veto in the hands of an increasing number of states and can hold up important decisions.
Lord Belstead: My Lords, the answer can be very quick. For example, setting up an intergovernmental conference will be decided by majority voting; but if the decisions which are needed as the result of that conference were to lead to changes in the treaties, that would require unanimity.

Law Reform (Miscellaneous Provisions) (Scotland) Bill [H.L.]
4.28 p.m.
House again in Committee.
Clause 44 agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 292:
After Clause 44, insert the following new clause:
("Evidence in criminal proceedings
Evidence in criminal proceedings.
.—(1) In section 32 of the Criminal Justice (Scotland) Act 1980 (evidence by letter of request or on commission)—
(a) after subsection (3) there shall be inserted the following subsection—
"(3A) Where any such record as is mentioned in paragraph
(b) of subsection (2) above, or any part of such record, is not a document in writing, that record or part shall not be received in evidence under subsection (3) above unless it is accompanied by a transcript of its contents."; and
(b) after subsection (5) there shall be inserted the following subsection—
"(5A) In subsection (2) and (3) above, "record" includes, in addition to a document in writing,—
(a) any disc, tape, soundtrack or other device in which sounds or other data (not being visual images) are recorded so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom; and
(b) any film (including microfilm), negative, tape, disc or other device in which one or more visual images are recorded so as to be capable (as aforesaid) of being reproduced therefrom."
(2) After section 32 of that Act there shall be inserted the following section—
"Evidence from abroad through television links in solemn criminal proceedings.
32A.—(1) In any solemn criminal proceedings in the High Court or the sheriff court a person other than the accused may given evidence through a live television link if—

(a) the witness is outside the United Kingdom, the Channel Islands and the Isle of Man;

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(b) an application under subsection (2) below for the issue of a letter of request has been granted; and

(c) the court is satisfied as to the arrangements for the giving of evidence in that manner by that witness.

(2) The prosecutor or the defence in any proceedings referred to in subsection (1) above may apply to a judge of the court in which the trial is to take place (or, if that court is not yet known, to a judge of the High Court) for the issue of a letter of request to—

(a) a court or tribunal exercising jurisdiction in a country or territory outside the United Kingdom, the Channel Islands and the Isle of Man where a witness is ordinarily resident; or

(b) any authority which the judge is satisfied is recognised by the government of that country or territory as the appropriate authority for receiving requests for assistance in facilitating the giving of evidence through a live television link, requesting assistance in facilitating the giving of evidence by that witness through a live television link.

(3) An application under subsection (2) above shall be granted only if the judge is satisfied that—

(a) the evidence which it is averred the witness is able to give is necessary for the proper adjudication of the trial; and

(b) the granting of the application is in the interests of justice.

(4) The power of the High Court to make Acts of Adjournal under the 1975 Act shall include power to make such provision as it considers necessary or expedient for the purposes of this section.".").
The noble and learned Lord said: In the midst of a Bill that deals with miscellaneous provisions for the law of Scotland, we now enter upon discussion of a group of amendments which, as appears from representations made to me, clearly have implications well beyond the private law of Scotland. In moving this amendment, I propose to speak also to Amendments Nos. 292A, 292B, 292C, 293A and 293ZA (which I appreciate is the one which relates to a proposal to disapply this provision to any prosecution under the War Crimes Bill which is at present about to start its passage through this House). That is clearly the one that attracts the most interest and attention. But if your Lordships will bear with me, I should like to explain something of the importance of Amendment No. 292 outwith the context of war crimes.
Before the passing of the Criminal Justice (Scotland) Act 1980 evidence in criminal trials had to be given personally in court. Section 32 of that Act usefully makes available in criminal proceedings the procedure in civil proceedings for taking evidence on commission or by letter of request. Where the witness resides outside the United Kingdom, Channel Islands or Isle of Man, his or her evidence may be taken by a tribunal in the place where he or she resides in accordance with a letter of request issued to that tribunal from the High Court or the sheriff court and accompanied by interrogatories and cross-interrogatories.
The new provision to be introduced into the 1980 Act by the new clause contained in this amendment builds in two respects on the existing provisions in the 1980 Act. I have brought these provisions forward following the consultation which I carried out as announced in my speech opening the Second Reading debate in this House on the Bill.
The first new provision makes clear that when the 1980 Act refers to the "record" of the examination of the witness under the letter of request or commission
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procedure, that record can be, in whole or in part, a record in the form of an audio or video recording. I think that this is a helpful recognition of the increasing use of new technology. However, in order to assist the Scottish court which has to consider the evidence, it is specifically provided that the record—the video tape, for example—must be accompanied by a transcript of its contents for ease of reference by the court.
The second new provision makes it possible in certain defined circumstances and only after the court has granted its authority for a High Court judge or sheriff hearing a case with a jury to receive evidence from abroad through a live television link. There already is statutory provision with regard to England and Wales for the evidence of a witness outside the United Kingdom to be given through a live television link. The relevant provisions for England and Wales are in Section 32 of the Criminal Justice Act 1988. Accordingly, the provisions which we are considering are not novel, and the principle of the introduction of this procedure for taking evidence from abroad has already on a previous occasion been accepted by this House.
My consultation, to which I referred earlier, confirmed that there was general approval of the introduction of this procedure for Scotland. I should like, however, to draw the attention of the Committee to the fact that the procedure is not available as of right—it must be authorised by the Scottish court—and the authority of the court will be granted only if certain conditions are satisfied. The provision we are considering sets out the arrangements carefully. Either the prosecution or the defence may apply to the court for the issue of a letter of request asking the authorities abroad—a court, a tribunal or other authority—for their assistance in facilitating the giving of evidence by the witness through the live television link.
The judge is only to grant that application if he is satisfied of two things: first, that the evidence which it is averred the witness is able to give is necessary for the proper adjudication of the trial; secondly, that the granting of the application is in the interests of justice; further, in terms of subsection (1) of the new Section 32A, the evidence is admissible only if the court is satisfied as to the arrangements for the giving of evidence by a live television link from abroad.
The Crown would of course endeavour if at all possible to have the witness in court to give oral testimony there. Only if this was not possible would it be necessary to consider making use of the new procedure. Other matters with regard to this method of obtaining evidence from abroad can be regulated by rules made by the High Court in the form of acts of adjournal. This is specifically provided for by subsection (4), which provides that the High Court's powers to make acts of adjournal include power to make such provision as is necessary in connection with the new section.
As announced in this House on 8th March in the statement about the Government's response to the war crimes inquiry report, the English provision for live video links is to be brought into operation in

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the first instance in respect of homicide trials and trials of serious and complex fraud. If the provision in the Bill is enacted, I propose to bring that provision into operation for Scotland on a similar basis.
I am sure that we all wish that all necessary evidence should be before a Scottish court considering a serious criminal charge and that the oral evidence of a witness should, in appropriate circumstances and restricted as I have indicated, be available even if he or she is living abroad. This provision does that, with the necessary safeguard that the court must grant its authority before the new procedure can be used.
Before I turn to the other amendments and in particular to Amendment No. 293ZA, given the approval that this House and another place have already given to the use of video links in criminal trials in England and Wales, whatever view may be taken about the desirability or legitimacy of using them for war crimes trials if they are to take place, I hope that the issue will not be confused and that it will be accepted that if video links are to be permitted, as they indeed are for England and Wales, it is only right that as a general principle such a provision should be allowed to the criminal courts in Scotland.
In addition to Amendment No. 293ZA there are a number of others which I understand will be moved and I should like to deal with them briefly. The first, Amendment No. 292A, seeks to enable the accused, as well as other witnesses, to give evidence to the High Court of Justiciary or the sheriff court in Scotland by means of a live television link from abroad rather than being present in court. That appears to be the effect of the amendment, but it may be proposed that the reference to the accused should be deleted as it is unnecessary.
Certainly there is a statutory provision in Section 145(1) of the Criminal Procedure (Scotland) Act 1975 to the effect that no part of a trial shall take place outwith the presence of the accused. This amendment, if it were adopted, would depart from that provision and I can see no reason for such departure. Accordingly, I shall in due course invite the Committee to reject the amendment.
Amendment No. 292B seeks to make it a requirement that the court in Scotland has sanctioned the arrangements for the giving of evidence by live television link by a witness from abroad before that method of giving evidence may be used. In the amendment which I have brought forward there is provision that the court be satisfied as to the arrangements for the giving of evidence by live television link from abroad before such methods can be used. I see no need for the court in Scotland specifically to sanction those arrangements provided that it is satisfied as to their adequacy. Accordingly, again I shall invite the Committee in due course to reject that amendment.
Amendment No. 292C seeks to impose a restrictive deadline for applications by either the prosecution or the defence for the issue of letters of request to seek assistance from the appropriate authorities outside the United Kingdom for the
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giving of evidence by live television links. There may, however, be circumstances where shortly before the date of the trial it is desired to use the new procedure. For example, the prosecution or the defence might become aware of important evidence held by an additional witness abroad, or it might become apparent that a witness abroad whose name and address has already been intimated and who it was expected would appear at the trial in Scotland cannot, for whatever reason, attend the Scottish court. In either of those circumstances it would be unfortunate if that evidence were lost due to the restrictions which this amendment seeks to impose.
I should indicate though that I would envisage, if video links were to be used and applications were to be made to the court for such use, and in view of the fact that letters of request is a critical step before that can be achieved, that such application would be made to the court very considerably before the 21 days in this amendment. What the new clause that I promote seeks to provide is a flexible procedure for the obtaining of evidence in those circumstances. For that reason, I would reject this amendment and similarly invite the Committee in due course to do so.
Perhaps I may deal briefly with Amendment No. 293A on the basis that it is not necessary. The trial judge in any criminal proceedings in Scotland may entertain and decide on objections to the competency of evidence. It is important to appreciate that the use of modern methods of technology such as live television link by satellite from abroad or by direct land line to present evidence to the court in Scotland would not alter the nature or characteristics of the proceedings. In particular it would in no way affect the competence of the judge to entertain and dispose of objections to the competency of any evidence. Again I accordingly invite the House to reject that amendment as unnecessary.
Amendment No. 293ZA obliges us to consider again in the context of the Bill the issues raised by the War Crimes Inquiry and the report by Sir Thomas Hetherington and Mr. Williams Chalmers, the former Crown Agent in Scotland. These are difficult and possibly uncomfortable issues. They have been debated in this Chamber and in another place. On 8th March, as I have already indicated, the Government announced that they were responding to the report by Mr. Chalmers and Sir Thomas Hetherington by introducing legislation to enable war crimes trials to be held in Scotland. The War Crimes Bill has now completed all its stages in another place and gives effect to the principal recommendation of the War Crimes Inquiry that British courts should be given jurisdiction over offences of murder, culpable homicide and manslaughter committed as war crimes in Germany or in German occupied territory during the period of the Second World War by persons who are now British citizens or resident in the United Kingdom.
As will be abundantly obvious in due course, this House will have the opportunity to consider the principle of that Bill. It would seem to me undesirable and unnecessary during the course of the amendment for us to anticipate the general debate on

931
whether legislation to allow such prosecutions should be introduced.
The new clause deals with two specific procedural changes which I undoubtedly and clearly have to accept the inquiry report recommended for Scotland. The first of these is providing a procedure to enable a Scottish court to allow a witness outside the United Kindgom to give his evidence through a live television link. As I have already spelt out, such provision is already in place in England and Wales in terms of Section 32 of the Criminal Justice Act 1988. My right honourable friend the Home Secretary explained in another place during the Second Reading debate on the War Crimes Bill that the provision in the 1988 Act was included principally for use in serious and complex fraud trials but it is not regarded as sensible to limit its application to such trials alone and to exclude it in the most serious of all types of cases—those involving the taking of human life. It is therefore intended to bring Section 32 into effect in respect of murder, manslaughter and serious and complex fraud.
The second procedural change recommended in the inquiry report is that relating to audio and vido recordings of evidence taken abroad by letter of request. It was unclear whether the record of the evidence obtained under Section 32 of the Criminal Justice (Scotland) Act 1980 could competently include a video or audio recording. A specific provision to this effect is now included.
Both these changes are of general application. It would certainly appear to me that it is clearly in the interests of justice that our criminal courts should have the best available evidence before them. Both the prosecution and the defence should be able to call on a witness wherever he or she is in order to give oral testimony in person in Scotland or through a live television link from abroad. In some cases a television link may be the only way of obtaining that direct oral testimony.
Neither of these changes can, I consider, reasonably be regarded as representing the setting up of a novel evidential or procedural regime solely with possible war crimes prosecutions in mind. It would indeed be wrong to set up a regime specifically for war crimes. Equally, the procedures available for the obtaining of evidence for possible use in criminal proceedings in general should be available for all war crimes trials.
I could not be unaware of the depth of views that have been expressed in this Chamber on possible prosecutions for certain war crimes. I attended the last debate and it was obvious to anyone there how deeply feelings ran. However, again I suggest to the Committee that that is not the central question now before us. My concern as the public prosecutor in Scotland must be that, if there are to be war crime trials in Scotland—and I stress "if—it is only right that the fullest range of appropriate powers that would otherwise generally be available should be available in such a trial in Scotland. In particular, if there are equivalent powers available to the courts in England and Wales, those powers should be available in Scotland.
It may be a matter of concern to some Members of the Committee that the amendment is the only opportunity that is provided to raise issues affecting the evidential regime that might apply in relation to any war crimes trial. First, with respect, that is not correct. There will be the opportunity which would seem to me more appropriate to deal with such matters once this Chamber has considered the general principle of whether there should be prosecutions for war crimes.
Furthermore, if Amendment No. 293ZA were to be carried and the War Crimes Bill passed into law, there would be an extremely undesirable—indeed, bizarre—consequence. The jurisdiction that would be allowed to the courts if that Bill passed into law would not depend on the residence of an accused person specifically within a Scottish jurisdiction or the jurisdiction of the courts in England and Wales. Clause 1 of that Bill makes it clear that the jurisdiction of the court is in respect of a person who is a British citizen or is resident in the United Kingdom, the Isle of Man or any of the Channel Islands.
I would consider this position extraordinary. I stress that this must be a matter simply of example and is not to be taken as a particular case. There might be allegations of involvement in certain war crimes defined in the War Crimes Bill involving a British citizen who was resident in Scotland. That person might be brought to trial in London because the video links allowed for in Section 32 of the English Act of 1988 were not available. If the amendment were carried such comparable powers would not be available in Scotland. I find that a rather startling and extraordinary idea.
If video links are to be allowed for in England and Wales, they should similarly be allowed for in Scotland. If they are not to be allowed for war crimes trials in Scotland, the only rational conclusion is that similarly the provisions of Section 32 of the 1988 Act in England and Wales should be disapplied in respect of war crimes prosecutions on this side of the Border. I hope that I have clearly and obviously set out the position.
If my position seems to the Committee to be logical and sensible, my suggestion is that once the principle of prosecutions for war crimes has been determined in this Chamber, it would be appropriate at that stage to decide whether the video links proposal—not only for Scotland but also for England and Wales—should be disapplied in the event of such prosecutions taking place.
As public prosecutor in Scotland, I have been very careful to avoid making any reference to a particular case. Members of the Committee will be aware that the Hetherington Chalmers Report suggested that such live video links should be permitted to bring Scotland into line with England. I want to make it very clear, particularly in view of the decision by a court on this side of the Border last week, that I am saying nothing about any particular prosecution which there may be in Scotland in the months or years ahead. Apart from anything else, it would be wholly premature of me to give any such indication that there will be a war crimes trial. Indeed, it will be obvious to many that, given the present state of

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affairs there is no live investigation being undertaken. It is only right for me to discover whether a jurisdiction is to be given to the Scottish courts before embarking on that course.
However, I emphasise that if I have to discharge my public duty as prosecutor in Scotland by setting up investigations into allegations of war crimes and taking that to the further stage of coming before the courts with a prosecution, I should be very concerned were I to be excluded, unlike my counterpart in England, from relying on video links.
This is a very difficult matter. I hope that I have set out the appropriate way to deal with it. Whatever view the Committee takes of the disapplying amendment, I request that there should be no confusion with the more general principle which my amendment introduces. I invite the Committee to reject Amendment No. 293ZA not because I consider this to be the last and exclusive opportunity to deal with the matter of evidence but because, if that is to be the approach taken by this Chamber, it should be taken on a United Kingdom basis once the issue and principle of prosecutions of war crimes in relation to those individuals specified in the War Crimes Bill have been resolved.
[Amendments Nos. 292A to 292C not moved.]
[Amendment No. 293 had been removed from the Marshalled List.]
Lord Campbell of Alloway Lord Campbell of Alloway moved, as an amendment to Amendment No. 292, Amendment No. 293ZA:
After Clause 44, at end insert:
("( ) The provisions of subsections (1) and (2) above shall not apply to any trial involving alleged war crimes committed in German-held territory during the Second World War.").
The noble Lord said: The object of this amendment is to exclude the application of Amendment No. 292 to admit sound and videotapes taken abroad and live television link evidence from abroad as an aid to conviction in a war crimes trial in implementation of the recommendations of the war crimes report.
There are two reasons for the proposed exclusion. It is idle for my noble and learned friend to talk about undesirable pre-emption. The boot is on the Government's foot. First, the principle of the War Crimes Bill has not been accepted by this Chamber. Secondly, if Amendment No. 292 were to apply to war crimes trials, it has not yet been shown, and it must be shown, that after a delay of some 50 years, justice would be or could be secured according to our traditional standards. It is far easier to cry, "Let justice be done", than to ensure that it is done and is seen to be done according to our traditional standards.
Likewise, the sister provisions of English law, introduced, as Members of the Committee will remember, for a totally different purpose, now thought to be assimilated with and by Amendment No. 292, are called into question if used for the purpose of a war crimes trial. Let us not waste time and indulge in an argument about using what my noble and learned friend called undesirable anticipation. Let the facts speak for themselves.
First, the war crimes inquiry was set up on 8th February 1988. The report was presented to Parliament in July 1989. On 4th December 1989 the report was debated in this Chamber; its recommendations attracted somewhat scant support. On 19th December the Bill before us was introduced into this House; it was read a second time on 30th January. In a long and detailed speech lasting 26 minutes my noble and learned friend the Lord Advocate at col. 174 referred to the absence of any provision allowing evidence to be given through live television links from abroad saying that he thought that such a provision would be useful. However, no mention was made of the purpose for which it would be used.
On 31st January a newspaper circulating in the north-east of Scotland referred to a discussion with my noble and learned friend the Lord Advocate on 30th January. The newspaper published an article by its political correspondent under the heading, "TV links may aid war crimes trial"—a matter which had not been brought to the attention of this House on Second Reading of the Bill.
On 8th March, a government Written Answer to a Question that I tabled asking what plans they had for responding to the war crimes inquiry announced the immediate introduction of the War Crimes Bill in another place on that day and the subsequent introduction into the Bill before us of an amendment along the lines of Amendment No. 292 for the intended purpose of aiding a conviction in a war crimes trial.
Arising from Amendment No. 292, Amendment No. 293 was tabled. On 2nd April that was amended with the help of the noble and learned Lord, Lord Wilberforce. Why was that amendment tabled? It happened because, search as you will, the purpose for which Amendment No. 292 was introduced was simply not apparent on the face of the clause and is only apparent from the Written Answer. Unless Members of the Committee happened to read the Written Answer or the rather obscure newspaper circulating in the north-east of Scotland, nobody would have had the slightest idea of the Government's intentions on this matter. That was the reason the amendment was tabled.
On 19th March on the Second Reading of the War Crimes Bill, the right honourable gentleman the Deputy Leader of the party in opposition in another place expressed certain views in the context of the second reason to which I referred, which your Lordships may remember was the "fair trial after 50 years" assumption—Amendment No. 292. I cannot quote them; it is contrary to tradition and good form. The reference is Vol. 169, No. 74, cols. 897-900.
The right honourable gentleman made four crucial observations. First, he said that the Bill would be a better Bill if Amendment No. 272 were not to apply to war crimes trials. Secondly, he said that if there had been any real need for clarification or reform of the law these provisions would have been included in the Bill when introduced to your Lordships' Chamber in December 1989. Thirdly, he said that there were the gravest reservations regarding the removal of the provisions of Amendment No. 292

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from the War Crimes Bill and their introduction as an amendment to this Bill.
I shall come back to that because those provisions were once in the War Crimes Bill and the separation of the consideration is part of the design or wish of the Government. For my noble and learned friend the Lord Advocate to criticise the amendment of which I speak in that context is not well founded and I shall reply to that in due course.
The right honourable gentleman further said that when your Lordships discovered that the provisions of Amendment No. 292 related to the War Crimes Bill, your Lordships might oppose that amendment. Steps were therefore taken to inform some noble Lords of the situation so that they might attend, if so advised, and listen to the argument. The usual channels were kept fully informed throughout and the request for a free vote was granted, for which noble Lords on all sides of the Chamber would be grateful. The War Crimes Bill was read a first time on 26th April. It is unofficially understood that the Second Reading may be on 4th June.
I now turn to the intended purpose of Amendment No. 292, for use in war crimes trials, which rests upon three assumptions; first, that in the context of the question of principle your Lordships shall give the War Crimes Bill a Second Reading, there being no breach of convention if your Lordships should decline to so do; for we are concerned with matters of moral judgment, the distinctive endowment of man from the very beginnings of time. It is not a mandated Bill and there is no question of any party with an inbuilt majority in your Lordships' Chamber frustrating the will of another party in government in another place. It would therefore be wrong for my noble and learned friend and the Government to assume that against a reasoned amendment your Lordships would give the War Crimes Bill a Second Reading.
The second assumption is that the traditional safeguards of quashing an indictment for abuse of process on grounds of delay have not been slighted by the express provisions of Clause 1 of the War Crimes Bill. I propose to show that they have been. The third assumption in the context of the fair trial assumption is that if the procedures of Amendment No. 292 were to apply in these trials a fair trial would be secured. The rectitude of each of those assumptions is doubted for the reasons I shall shortly deploy.
Perhaps I may deal with matters of common ground before I turn to the argument—and there is an argument—on all three issues. The matters of common ground must be, first, whether the principle as to whether these trials should ensue has overriding effect; secondly, that it is wholly inappropriate to consider some of the assumptions in one Bill and others in another—a sort of piecemeal approach; thirdly, that on the fifth day of the Committee stage of this Bill there is no opportunity that can be afforded to debate these assumptions or consider how they react and interact on each other and upon the fundamental principle of whether such trials should ensue. That is not a subject for consideration
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in a Law Reform (Miscellaneous Provisions) (Scotland) Bill; it is for consideration in the War Crimes Bill where the appropriate time can be taken and all matters can be considered as they react, interact and affect the fundamental decision of whether these men should be tried at all. They are questions of procedure.
Fourthly, if such trials are to ensue it must be common ground that the laws, procedural and substantive, must be assimilated by the Bill on both sides of the Border. My noble and learned friend asked for an assurance on that and I gladly give it. I accept that if the trials are to proceed the same laws, procedural and substantive, must apply.
The next matter of common ground is that the sister provisions of English law sought to be assimilated by Amendment No. 292 were introduced to implement the provisions and recommendations of the Roskill Report to combat serious and complex international fraud and are at present in a putative pre-experimental state as no implementing rules or opposition procedures have yet been issued. It therefore comes to this. By that proposed process of assimilation in Amendment No. 292, a law introduced for one purpose in England—albeit cast in the form of general application—is to be used for a totally different purpose in Scotland. That is a curious legislative approach.
The last matter that must be common ground is of considerable importance. It was recognised as such in the war crimes report. It was said—and I choose my words with care—that it would be extremely difficult to mount a prosecution against any of these men unless Amendment No. 292 was passed. That is why it is introduced.
I have dealt with the matters of common ground. The argument as to the first assumption can be put briefly. The first point is whether genocide—that is what it was—in implementation of an act of state by subordinates of some hostile power within a limited area of general conflict during the Second World War can under convention then applicable be treated as a war crime. In the debate my noble and learned friend Lord Hailsham thought assuredly not. With respect, he was entirely right. It was not accepted as a defined offence until 1948.
The second matter to be considered is whether legislation should be introduced with extra-territorial effect to implead those who owe no allegiance in respect of acts committed outside the jurisidiction of our courts. The noble Lord, Lord Mayhew, thought not. The Committee may remember that the noble Lord—he is unfortunately unable to attend today—reminded us that when that file was closed, in I believe 1948, it was known then that there were those who might be liable to prosecution if some sort of statute such as the one proposed were to be enacted. However, the file was closed as an act and decision of government. I believe I am right that the noble Lord, Lord Mayhew, was then in the position of the Minister having to make the decision.
The third matter to be considered on the question of principle as to whether the War Crimes Bill is I given a Second Reading is whether as a matter of

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morality it is right or wrong to put these men on trial after a delay of some 45 years. The noble Lord, Lord Irvine of Lairg—
Lord Mishcon: Perhaps the noble Lord will forgive me for intervening. Is it in order in a debate on this amendment to deal with how this Chamber should approach the Second Reading of the War Crimes Bill when we are not dealing with that Second Reading?
Lord Campbell of Alloway: I am, as always, in the hands of the Committee. I consider it to be strictly relevant. It is wholly wrong, reprehensible and unfortunate on the part of the Government that I support that they took these relevant provisions out of the War Crimes Bill. However, as they have been taken out—
Lord Fraser of Carmyllie: I would be grateful for a clear understanding of the basis on which my noble friend makes that decision.
5.15 p.m.
Lord Campbell of Alloway: The only basis which I can state publicly is the view expressed by the right honourable gentleman the Deputy Leader of the Opposition in the passage to which I referred. My noble and learned friend laughs, but I should not have thought it at all possible that anything like that could have been stated by the right honourable gentleman unless he had grounds for his belief. That is the basis on which I made the decision.
I was concluding the passage to which the noble Lord, Lord Mishcon, took objection. I have only this to say further, if the Committee will allow me. Noble Lords took the view by a substantial majority that it was not right that these trials should continue. I referred to the speech of the noble Lord, Lord Irvine of Lairg, and I was about to remind the Committee that the right reverened Prelate the Bishop of St. Albans spoke of the backlash effect, but at that time—and again the relevance is this—the question of evidence from abroad as a requisite and aid to conviction was not considered as it was not then even before this Chamber.
On the second assumption that the express provisions of Clause 1 of the War Crimes Bill would appear to oust the jurisdiction of the courts to quash an indictment for abuse of process on grounds of delay, in a recent Privy Council case a few words were said by the noble and learned Lord, Lord Templeman. He said:
"The longer the delay the less likely the trial can be fair. The trial might be unfair even if there were no specific prejudices".
This year in the Lloyd's trial, Grob and Hart, at Southwark Crown Court the indictment was quashed after 10 years' delay—justified delay—because the defendants had suffered prejudice in the preparation and conduct of their defence.
Only last week, after four weeks of preliminary submissions—this is the sort of argument one is involved with—the indictment was quashed in the Manx Bank trial because a fair trial was not possible on the ground of delay. That bank collapsed in 1982. The criminal investigation into fraud started in 1987 and the delay was held not to be justified. Where is
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the justification for the delay of 45 years? Where are the material witnesses for the defence? How can it be shown, especially if resort is had to Amendment No. 292, that a fair trial can take place?
I conclude by saying that this way the second assumption—the ouster of the jurisdiction that the courts cannot quash an indictment on the ground of delay because of the way that Clause 1 is drafted—and the fair trial assumption to some degree merge, but not totally.
I have spoken to the noble and learned Lord, Lord Emslie, who is not able to attend, and other noble and learned Lords, some of whom are able to attend. The view is that a fair trial is just not on and that the logistics of using this amendment in those circumstances presents insuperable difficulties. With the leave of the Committee, I leave it to other noble Lords who are more experienced than I to deal with those aspects of a fair trial, especially in Scotland, where the practice as regards identification differs from that south of the Border. On that basis, I beg to move.
Lord Morton of Shuna: To my mind it is clear that Amendment No. 292 is being brought forward at this time only because of the War Crimes Bill. The English legislation was passed of course before the Hetherington and Chalmers report was available and therefore had nothing to do with war crimes but was concerned with Lord Roskill's report.
It is clear from the Written Answer to which the noble Lord referred that that is the purpose of the amendment. It is also clear when we consider the position about children giving evidence on television links, because that, which is perhaps a related subject, is outside the normal type of consultation in Scotland and is not included in this Bill, though I believe—I may be wrong—that there is similar provision already in England. Therefore, it is not a case of trying to bring the two together but of introducing this matter quickly in order to fit the War Crimes Bill.
It is fundamentally wrong to legislate to change the law of evidence with retrospective effect merely for the purpose of trying two or three individuals. It is one thing to change the rules of evidence to cater for events of which the prosecuting authorities are unaware or to take account of changes in technology. That is what this House and the other place did in changing the English provisions concerning television links. It is quite another matter to say—and it offends deeply against the principle of fairness—to two or three individuals, "We abhor what you are said to have done but on the present law we cannot prosecute you. Therefore, we are going to change the law so that we can prosecute you for what you did, or are said to have done, nearly 50 years ago".
The noble and learned Lord the Lord Advocate said that if we pass the amendment to his amendment it will open the door to the prosecution of a resident Scot in England. I have always had great respect for those who have held the office of Attorney-General and I hope to continue to have respect in future for those who will hold that office.

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However, I am startled to think that, if this Parliament passed a Bill saying that there should be no such prosecution in Scotland, any Attorney-General would then prosecute a resident Scot in England. It would offend against everything that Parliament has said. In my view what is proposed is fundamentally wrong because it is retrospective and aimed at two or three individuals.
Apart from the question of principle there are severe practical difficulties. The use of a live television link or video-recorded evidence has not been allowed before. As I understand it, English law has not yet been used. We have not had any experience of dealing with these measures. In general I would accept the amendment because it gives a procedure which we would normally expect to be tried out cautiously, starting with fairly non-contentious evidence. I am thinking of evidence from, say, a foreign banker speaking to his records or his transactions. Instead, I understand that we are to go straight into murder trials in relation to matters that took place 40 or 50 years ago.
Clearly, from the Hetherington-Chalmers report, the evidence that is to be taken on a television link, whether recorded or live, is concerned with identification. The issue in any such trial will be whether the person standing trial can be identified as a person who committed an offence nearly 50 years ago. There are obvious difficulties about doing that. They are compounded by the difficulties of having interpretation and a television link.
The judge is only to allow that procedure if it is in the interests of justice. How is the judge to make the assessment? As I understand the procedure in England, a witness statement taken by police or the prosecuting authority is signed by the witness and is available to the defence and to the judge. That is not so in Scotland where in general the witness statement is not signed by the witness. It is not shown to the other side. Each side obtains its own statements and does not see the statements obtained on the other side. The judge sees no statements whatever either before or during the trial.
With that procedure, how is a judge, faced with a request to take evidence, to measure the evidence according to the proposed new Section 32A(3)(a)? It says that,
"the evidence which it is averred the witness is able to give is necessary for the proper adjudication of the trial".
Is the judge to see all the statements that are available? If there are 10 people who can identify and the evidence of only one has to be taken through the television link, is that necessary or not?
This amendment produces a procedure which, in general, I recognise as being necessary. However, it should be used very cautiously and is not to be tried out in a case of this type. How are we to look at the issue of a witness who is to speak to matters of substance and who is fit to travel but who is unwilling to do so? As the Hetherington-Chalmers report says:
"It is clearly desirable that witnesses of substance should appear in person before the trial court so that their evidence could be challenged before a judge and jury and the credibility of the evidence assessed".
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It is very difficult to assess the credibility of any witness. It is done more easily if the witness is there rather than being visible only through a television link. A witness is assessed sometimes through his hesitation, the lift of an eyebrow or by a change of expression. It may be that these are factors which become distorted on television.
What are we to do as judges if we are faced with a motion to recall a witness? Is the jury to be shut up while the Russian or other authorities try to find out where the witness has got to since his evidence was recorded? There are all kinds of practical difficulties which have to be faced. Fortunately for Scotland, there are many people from the Baltic states and Poland who have lived in Scotland since the war. They have been of great benefit to Scotland. Some may well have evidence of importance. One of them, seeing a witness give evidence on the video link may say, "That evidence is wrong" and then mention a certain fact. We have all had experience of that happening.
How does one deal with that situation? These are very severe problems. I suggest that it is entirely inappropriate that this type of case should come before us at this stage. The basic principle remains. In my view it is morally wrong to have retrospective legislation of this kind. I am speaking only about Scottish affairs. I do not wish in any way to be critical of English matters. It is crucial that the standards of Scottish justice should remain high and that nothing should be done to diminish the necessary impartiality and fairness of justice. As regards these proposed trials, I strongly believe that the substantive amendment would offend against that principle. I strongly support the alternative amendment.
5.30 p.m.
Lord Macaulay of Bragar: The noble and learned Lord the Lord Advocate has carefully and fairly set out the Government's position in relation to this very important amendment. I share the same reservations as previous speakers concerning the timing of the amendment. Although it is a general amendment, there is a deep suspicion that it was tabled for the specific purpose of covering any impending war crimes trials. The noble Lord, Lord Campbell, spoke about the amendment having been in the War Crimes Bill. I should have thought that it would be much more objectionable to put this provision into the War Crimes Bill and to make an exception of war crimes. It makes more sense on a broad basis that if such changes are to be made in the law of Scotland they should be made in the way that is being suggested. In saying that, I am not saying that I accept the government amendment. Like the noble and learned Lord, Lord Morton, I am not happy about the phraseology and the protection which would be required for the operation of this type of evidence.
Perhaps I may remind the Committee that the Bill is called the Law Reform (Miscellaneous Provisions) (Scotland) Bill. This is the fifth day of the Committee stage and each day has been bedevilled by delay. I do not lay the blame at anyone's feet but I should not like to see the discussion on the Bill being

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polarised on the principle of the war crimes debate. We are in severe danger of going off at a tangent and being here until goodness knows when—until perhaps the same time tomorrow—in order to finish the Committee stage: It must be finished today. I ask noble Lords, with respect, to be temperate and relevant in what observations they care to make about this provision.
The issue of war crimes is one for each and every one of us. It is an emotive issue. However, we are not debating that. We are debating the principle of the fairness of the evidential procedure proposed in the amendment. First, it is about fairness in general, and the amendment in the name of the noble Lord, Lord Campbell of Alloway, is directed to whether the procedure can be applied fairly in the circumstances of a future war crimes trial. I do not propose to go into that matter in any great detail because the War Crimes Bill has not been discussed fully in this Chamber. I have looked at the Bill and I have some reservations about whether in its present form it applies to Scotland. But we can deal with that at a later stage.
On this side of the Committee there is no objection in principle to taking advantage of modern technology in order to hunt down criminals of whatever kind—be they thieves, murderers or the perpetrators of war crimes. The question of retrospective legislation is entirely another matter. It might have come better from noble Lords to show a little faith in British justice, whether in England, Scotland, Ireland or Wales. We have seen the fortunate or unfortunate consequences of two major trials already dealt with in England. On each occasion—in the case of the Guildford Four and in the other case last week—the cry went up, "This was a triumph for British justice".
If that is so, and if we are proud of our legal system—no one says it is perfect as it is individuals who deal with justice—can we not trust the courts in the long run to apply the principles of fairness in the circumstances of each case? It is for the prosecutor, whether he be in England or in any other part of Britain, to decide whether to take a prosecution against an individual. But that is not the end of the matter. The courts are the fountain of justice and fairness. Those principles have been applied, and I hope will always be applied, no matter how heinous the crime before the court.
I have reservations about the wording of the new clause even if it does come from the English Act. The noble and learned Lord the Lord Advocate said that there will be acts of adjournal to deal with procedure. But it is difficult to see how the legislation can encapsulate the principle of fairness. At the moment we only have the new clause to look at. We must ask the question: on the face of it, what difficulties can we anticipate? There is a standing rule that a trial should always take place in the presence of the accused. This is a departure from that rule. The witness may be in Russia and the accused in London or Edinburgh looking at the witness through a television link. That is why I agree with the noble and learned Lord, Lord Morton, that in applying this principle we have to be careful how far we go.
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I give as an example the cross-examination of a witness on video tape. How will it be achieved if the witness is in the Far East and the accused is in Britain? It is not quite clear to me at what stage it is said the live television link will come into operation. Subsection (2) of new clause states:
"a person other than the accused may give evidence through a live television link".
Is it anticipated that evidence will be available for examination by the accused prior to the commencement of the trial so that he can properly instruct his advisers on the line to be taken with the witness and on the investigations required to enable him to present a defence at the trial? A witness may come on in the middle of perhaps the third or fourth week of a long, protracted trial and give evidence to which the accused says, "That man is talking a lot of rubbish. I have 40 or 50 witnesses in that country who can prove that he is entirely mistaken". What will then happen in the trial?
Even more important, what system of law will apply to the taking of the evidence? I am given to understand from information I have received that at least in one country no cross-examination is allowed. What will happen if the witness merely gives his or her evidence and no cross-examination to balance that evidence is allowed on the video link? Will the judge then to say to the jury, "You have heard that evidence but forget it because there has been no cross-examination"? Are we to reach the other stage of having what are called trials within a trial? When it is proposed to receive evidence in this manner, either for the defence or for the prosecution, will the court be adjourned for the evidence to be heard and assessed so that the judge can make a ruling as to whether it is fair in all the circumstances to allow the person's evidence to be received?
Another question arises as a matter of practicability. What will happen to the immunity of the lawyer who goes to a foreign country? I give as an example someone who has offended against Russia. If in the course of cross-examination the counsel or lawyer has to make certain propositions about the Russian state which in themselves are an offence against the law of Russia, is the lawyer to carry his immunity with him from Britain to Russia; and if so, how will it be enforced if the lawyer in Russia is taken downstairs for a considerable time? I pose these questions at this stage to indicate why I am unhappy about some of the phraseology.
I am concerned in particular about proposed new Section 32A(l)(c). It states that a live television link will be allowed if,
"the court is satisfied as to the arrangements for the giving of evidence in that manner by that witness".
That poses a problem as to how a judge sitting in Britain will be satisfied as to the manner of giving the evidence. I know that it may be an exaggerated example, but while the witness is appearing on television apparently giving a free account of his history how is the judge to know that someone in the background is not menacing him to give evidence in a certain way? How will the British judge know that short of going to the place and examining where the evidence will be given?

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The same problem arises ultimately in subsection (3)(b) of New Section 32A where we see the test:
"The granting of the application is in the interests of justice".
I ask whether that is the proper test. Surely the proper test is whether the application is fair in the interests of justice. We come back to the touchstone of fairness. The test is much narrower than the interests of justice.
As I said at the outset, I am not taking up any of the Committee's time on the question of the principle of prosecuting war criminals. That is completely irrelevant at this stage. We must not shrink from the use of modern technology but equally we must be careful about resorting to evidential short-cuts which may lead to injustice and unfairness. That is why I should like to see more consideration given to the wording of the new clause.
It is well recognised that in war crimes—and, perhaps, in other crimes—with so much international movement involved, there will be witnesses who refuse to come to this country. The broad interests of justice require that their evidence should be obtained as quickly and as fairly as possible so as to bring the perpetrators of whatever crime it may be to justice. Those are the observations I wish to make at this stage of the debate. I await with interest the contributions of other Members of the Committee.
5.45 p.m.
Lord Soper: This is fundamentally a debate on justice. Therefore, I propose to try to say something about the Christian approach to justice in the light of the particular evidence which has been propounded today of one gate into that very large field. I do not believe that you can separate justice that belongs to the Christian faith from the deliberations of an officially Christian Chamber. I intend briefly to say three things about Christian justice as represented by the Christian Church.
The first does not initially sound too complimentary. It is the doctrine of original sin which most people avoid because it is so disagreeable. But it should be some comfort as well as being in the last analysis, a commendation of humility that those who judge are already guilty to some extent and that this world is contaminated by evil in so far as what our first forefather did has reverberated in all kinds of troubles ever since. We are not in any position to take an absolute position on justice because we are to some extent contaminated by an environment which is soaked with a very great deal of iniquity.
Secondly, the condition of this planet is not the ultimate residence of the children of God. We are beginning to see much more clearly than did our fathers that we have only a temporary lease of this earth. That should remind us of one of the great doctrines of the faith of our Hebrew fathers: there is no ultimate meaning in life, except that that life belongs to a larger area of which we are very largely ignorant but for which we must make some preparation and show care. Therefore, I do not
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believe that there is any possibility of final and absolute justice on this planet.
Thirdly, I should be desolate in that concept were it not for the fact that I am also encouraged to believe that what we leave undone, because we cannot possibly accomplish it, God will in his good purpose continue to do in a way which has been impossible for us. That leads, of course, to highly undesirable and unpleasant concepts of heaven or hell. Indeed, there is no doubt that the measure of our cognizance of that future life becomes more dim almost daily. As far as I can remember, in my advocacy of the Christian faith I receive very few questions about hell; although I must remind myself and, indeed, dare to remind this Chamber that it is a constituent part of the Christian faith that the element of evil, which is the second strongest element of the universe, is overcome finally in the eternal purpose and love of God.
Members of the Committee will permit these ecclesiastical and theological references because they bear, as I see it, intimately upon the question before this Chamber today. I do not believe that it is possible to provide absolute justice. I take it that we cannot prosecute the Katyn murderers who were not Germans. We cannot escape from the contamination of the world in which we live, however decent and aspirate may be our desires for a better life. We can make partial, humble and compassionate judgments. Those judgments are by no means final; but they contribute to a preparation on this planet for what I believe is an eternal life offered to those who learn here sufficiently to accommodate themselves to the change which will be theirs when they die.
In that light, although this does sound a little like a sermon—and I make no apology for that—I believe that if the bishops were present today they would be in concordance ecumenically with me, or I should be in agreement with them, on this matter. We are now faced with an ultimate question: whether or not to prosecute in a very imperfect context the evils of the past, to shift the soot and the dirt of yesterday and to re-light some of the passions which were then ignited; or rather to light a candle for a future which, whatever may be the imperfections of our judgments, would at least not be a reiteration of their failures and inconsistencies.
I agree that that is not immediately applicable to the kind of argument to which we have been submitted today and which we have enjoyed in many respects. However, I believe that you cannot ignore the wider view if you are even to meet the hazards of one or more of the incidentals of trying to make sense, and above all to make decency, of the world in which we live which is in such dire peril today. I happen to believe that it needs above everything else a recognition of the fact that to let some bygones be bygones is not a confession of failure; it is the only way forward. In that regard I commend to the Committee the observations which I have made.
I believe that ultimately the hope of the future is the compassion of today, rather than the reminiscence—however dreadful or informative it may have been—of past days. That is a plea. I do not make it against the background of condonation of evil. I have been to Auschwitz. I was there almost

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a fortnight after it had been frozen by the Russians. I saw the various instruments of torture still lying on the tables.
Perhaps I should conclude by saying that whenever I am concerned to say something about the Jewish people—and it is inferential in this particular amendment—I feel that I ought to apologise to them for the continual proclamation by the Christian Church of deicide which has only quite recently been repudiated. It is in that light that I am emotionally disturbed when I find any inference propagated that we should forget the past. I do not want to forget it; but I want to do justice in the future for those who have been so wickedly misused in the past. That is the one contribution I dare to make to this debate.
Lord Beloff: This might be an opportunity for a member of the Jewish community to which the noble Lord so generously and feelingly referred to make a few comments. I do not differ from him substantially in that it is always desirable that we should consider the present and the future rather than the past. However, my difference from him and from the movers of the amendment which we are discussing—that is, the amendment moved by my noble friend Lord Campbell of Alloway—may be that we risk confusing ourselves about the present and the future by a too ready acquiescence in the obliteration of the past.
I listened with great care, as I am sure did all Members of the Committee, to the long, complicated and informed speech of my noble friend Lord Campbell of Alloway and also to the supporting speech made by the noble and learned Lord, Lord Morton of Shuna. I may disagree on detail. I have never regarded Mr. Roy Hattersley as a supreme authority on the internal affairs of my party. However, if my noble friend feels differently, that is no reason for disagreement.
During my noble friend's speech I felt that if the argument was, as it largely seemed, a technical and legal one in opposition to the views of the noble and learned Lord the Lord Advocate, it might have come better from someone who had not in our previous debate on war crimes been so emphatic as to the undesirability in principle of proceeding against war criminals. It has been said that we have not yet considered the Bill. That is true. However, we considered in great detail the Hetherington-Chalmers report. Although I agree with my noble friend that most of the speakers were critical of the conclusions reached, I should point out that three or four noble Lords, including my noble friend Lord Jakobovits—who, unfortunately, cannot be with us today—made speeches on the other side.
My chief reason for feeling as I do about the amendment is due to its wording, because it provides:
"The provisions … shall not apply to any trial involving alleged war crimes".
Does that mean that the amendment's proponents do not believe that those crimes took place because the word "alleged" is affixed to the word "crimes"? I should have thought that only the lunatic fringe of the neo-Nazis—
Lord Morton of Shuna: Perhaps the noble Lord will allow me to intervene. The reason for the wording is that it is that of Clause 1 of the War Crimes Bill which refers to alleged offences.
Lord Beloff: Alleged offences refers to the possibility of the prosecution of alleged offenders. It is true that until persons have been prosecuted, and conceivably found guilty, what is against them is the allegation that they have committed offences. To use the words "alleged war crimes", particularly in the light of some speeches made when the Hetherington-Chalmers Report was debated in this place, seems to me to call into question the veracity of those crimes as detailed at considerable length by Sir Thomas Hetherington and Mr. Chalmers.
Lord Campbell of Alloway: If the noble Lord will give way for one moment: no, we do not call into question the veracity of those terrible crimes. No one but a heartless lunatic would do so. All we are saying is that no man is assumed to be guilty until he has been convicted of having committed the offence.
Lord Beloff: I am delighted to hear, and I hope that the Committee is delighted to hear, that statement. The question then arises: would it not have been better to put the amendment in that form or to have made the amendment refer specifically to the procedures to which the noble Lord objects? I do not wish this afternoon to return to or prolong the debate about those crimes. It may be more appropriate to so do if and when we have a Second Reading. To have tabled the amendment in those words today prejudices the issue, and I hope that the Commitee will agree with my noble and learned friend the Lord Advocate and reject it.
The Earl of Longford: It is entirely appropriate that a Jewish Member of the Committee of the utmost distinction and eloquence should contribute to the discussion. I wish to say a few words only from the point of view of Christian forgiveness. If anyone wishes to know what are my qualifications, I at least have written a book on forgiveness which was published last year. I cannot see anyone else in the Chamber who can claim that peculiar distinction.
I submitted in that book—I do not say that it was widely reviewed, but those who reviewed it did not dispute my submission—that forgiveness in the modern sense is a Christian contribution to civilisation. I agree that a large part—some people would say the larger part—of Christian ethics derives from the Old Testament, but not forgiveness of man by man. There is a chapter in my book about the Jewish approach to forgiveness. I have discussed the matter with various rabbis. No one would claim—at least, I do not believe that any rabbis would claim—that one can find forgiveness of man by man in the Old Testament. One can find the forgiveness of man by God, but not the forgiveness of man by man. That concept was introduced by Jesus Christ. Rabbis would tell us that it was introduced into the Jewish religion soon afterwards in the Talmud. It is a distinctive Christian virtue. Most of the Christian ethics derive from the Old Testament.

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Wherever forgiveness started, most of us would today regard it as a virtue to be a forgiving person. If one was to say that someone was an unforgiving person that would be regarded as insulting and almost libellous. We regard the capacity to forgive as a virtue, but there is one problem. If anyone studies the matter theoretically he soon runs into that problem: no one can forgive someone who has not injured oneself.
Baroness Phillips: Hear, hear.
The Earl of Longford: My noble friend says "Hear, hear", but she may not have considered all the implications. If one says that no one can forgive anyone unless one has been injured by that person, murderers can never be forgiven because the men that they have murdered are dead. One must realise the limitations in the idea that one can only forgive those who have injured oneself. No community could ever forgive another community. The Germans could never be forgiven. Some parties—I will not say which—in the long history of Anglo-Irish relations would never be able to forgive the others, and so forth; and so I am afraid I take my stand on the idea that forgiveness must not be limited to injuries one has suffered oneself. We must approach this whole matter in the spirit of forgiveness and I therefore support the noble Lord, Lord Campbell.
Jews all over the world are undoubtedly a people of a unique religious culture and inspiration. It does no service to them to stir up feelings and inflame them at present. It does them much more of a service to treat them as having the same idea of forgiveness as Christians. In that spirit I hope that not just Christians but Jews, and atheists for that matter, will support the noble Lord, Lord Campbell.
Lord Hailsham of Saint Marylebone: I wonder whether we are doing ourselves justice in this debate. We are discussing a change in the law of Scotland on Amendment No. 292. I am interested in original sin, and I hope that I may be forgiven, whether or not I am a forgiving person. However, I hope that we can get down to the kind of argument advanced by the noble and learned Lord, Lord Morton of Shuna, in support of the amendment or go in the other direction and destroy his argument. To use the amendment as a curtain raiser for the Second Reading of the Bill which is before this place is abusing the time of this place. We have now been discussing the amendment for nearly 90 minutes, and I believe that we should return to its merits.
Lord Wilberforce: I wish to say just one or two words of a strictly prosaic character. There is, first, a procedural difficulty. Many Members of the Committee feel that it would have been easier if we had been discussing that matter in the context of the War Crimes Bill, but unfortunately we cannot do that—it is not our fault—because that Bill has been passed by the other place and sent to us in the form in which it is.
It is a simple, three-clause Bill which merely says that the courts should have jurisdiction to try certain
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matters. It does not enter into procedure except with regard to committal procedures which are not relevant here. It has nothing in it which would enable this place to deal with the procedure, the evidence and the mode of trial in relation to war crimes, and so this place has no alternative but to take the opportunity which is available on the Scottish Bill to deal with the procedure in the way that it believes to be appropriate, on the assumption no doubt that there will be the passage of something like the War Crimes Bill and that trials will take place.
The Committee has to consider whether the changes proposed in Amendment No. 292 are appropriate to be made in the context of a war crimes trial. The Committee will have to decide that matter on the basis of two simple considerations. First, there is the argument about changing the rules after the offence has been committed, which is undoubtedly what has been done. It has been admitted that those provisions are included in order to deal with war crimes. Many Members of the Committee may feel that it is not right to change the rules at this time. These criminals should be tried under the rules which existed at the time when they committed their offence. I say no more about it, because if noble Lords are not impressed by that argument, they are not impressed. If they are, they will decide accordingly.
The other point that requires a few more words is whether the changes are appropriate to be made in the context in which we are considering them. One starts from a simple point of principle which the noble Lord, Lord Macaulay, has already stated to the Committee. It is that in principle under English and Scottish law a man has a right to be tried in the presence of his accusers and of his witnesses. He has the right to have his witnesses there and to confront them; the right for the jury to be confronted with them and for them to be confronted with the jury.
If that is not done, the accused loses an important right which may be vital to his defence. It is that as the witness gives his evidence the accused is able to say to his counsel, "This witness is lying; that witness is confused. Put this question to the witness; his memory is totally wrong". He has the right to suggest any matter which can be put to the witness that may effect his credibility. That is a fundamental right in any trial, civil or criminal. If we are to have a television link instead of an actual presence in court, that right is likely to be removed.
As regards the television link, let us discuss it rather than confusing it with references to video links. I am sure that the Committee appreciates that it is not possible to pass a general provision saying that evidence by television links is to be admissible in a court of justice. That cannot be done. We must consider the possibility, the relevance and the justice in relation to certain kinds of proceedings. That is the way in which the English law has dealt with the matter—through a general section in the Criminal Justice Act 1988 which is similar to the clause proposed here. It was left to the Government, to the Secretary of State, to bring that provision into force at different times as he thought fit in relation to different subjects.

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There is a similar clause in this Bill, Clause 49. I think I am right in saying that it has been brought into force in England only as regards children and the possibility of children under 14 suffering from abuse or sexual assault giving evidence by television link. This was done after careful consideration and research. Evidence was taken from psychiatrists. There was much consultation. Finally, it was decided to introduce it. The provision is now working very well and has proved to be a worthwhile change in the law. It enables better evidence to be obtained from the child and can be devised without injustice to the accused person's right. That concerns children and no doubt Scotland will follow the same line, if it has not already done so.
Then there is fraud, and a clause was introduced, as the Committee has been told, to enable complicated charges of fraud to be dealt with otherwise than by lengthy trials lasting years. This is being investigated, controlled experiments are being carried out and at some time sooner or later, no doubt under strict conditions and controls, the provision may be extended to cases of fraud. In other words, we can only move from step to step when we consider it appropriate in the interests of justice.
Compare with those cases the case of an alleged war criminal regarding whom there are witnesses all over the world. The Committee will have in mind that in almost all these cases there is not just one witness, as with a child, and not even several, as in the case of accountants. There are probably dozens of witnesses. In one example referred to in the Hetherington Report 40 people were interviewed in about five different countries. The Demjenjak trial lasted 14 months, with witness after witness. In a recent libel action in the courts here, witness after witness was called from different countries with different regulations.
To think of applying the television link to that situation causes one's imagination to boggle, simply considering the logistics. I do not wish to put this from the logistical or the practical point of view, but simply on justice. We cannot do justice to an accused charged with a war crime committed 50 years ago in a remote country by permitting evidence to be given in distance countries, possibly under the control of a foreign official, possibly of a foreign judge, simply because it is relayed by way of television to the court.
I put it to the Committee as a matter of elementary justice that this ought not to be done, quite apart from the logistical or the retrospective argument. I apologise for not taking longer and being more expansive. This is a simple point of principle on which the Committee must decide. I commend Amendment No. 293ZA to its consideration.
6 p.m.
Lord Callaghan of Cardiff: I shall be brief as I am neither a lawyer nor an ecclesiastic but someone who merely tries to apply a modicum of common sense to what has been put to us. I was not able to be present at the last debate. But I feel that this is one of the most important questions which your Lordships will have to decide. For that reason I
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have read very carefully the Hetherington-Chalmers Report. I have read the debates in the House of Commons. With all respect to the noble Lord, Lord Beloff, even the House of Commons can sometimes produce something of wisdom, of merit and worthy of consideration. Of course I read your Lordships' report.
I must say that I find the arguments on both sides extremely cogent and evenly balanced. For the reason that the noble and learned Lord, Lord Hailsham, gave this afternoon, I do not intend to say how my mind is moving on the matter. I am glad that I gave way to the noble and learned Lord. Lord Wilberforce. I think that his argument is absolutely irrefutable. I simply do not see how a provision which was introduced in relation to children and fraud at that time and which should be introduced stage by stage can now be used for a crime of a totally different quality in every respect from those to which the legislation was intended to apply initially. This dreadful crime requires the most detailed consideration if we are to be just not only to those who will be tried for the offence but to those who suffered by it.
I have no doubt in the light of what I have seen and heard that, although it may cause difficulty to the Government, they would be wise to think again about the matter and to accept the amendment from the noble Lord, Lord Campbell. If they do not, I shall certainly follow him into the Lobby tonight.
Lord Grimond: I very much support what has been said by the last two speakers. We are on a narrow but extremely important point. I wish to return to what the noble and learned Lord the Lord Advocate said. He moved a new clause to the Bill which he said was chiefly necessary in the case of homicide and serious fraud. Since then we have had other examples where it might be useful.
It is noticeable that the new clause was not in the original Bill. It cannot therefore be a matter of great urgency that it should be introduced. Nor can it be said, as I think the noble and learned Lord the Lord Advocate said, that the law of Scotland must in all respects be brought into line with that of England. The law of evidence in Scotland is already different from that in England and the fact that it may remain so for a time in a small but important matter cannot be sufficient reason for pressing this new clause.
I am opposed to re-opening the question of war criminals and holding war trials. I think it is repugnant in law and in common sense and it may set an undesirable precedent throughout the world. What will happen in Israel, in Russia and other such countries?
Even if I were in favour of war trials, I should be deeply concerned about the distortions of our law which are apparently entailed. I hope they would be limited to a minimum. It is quite clear that if the new clause is applied to war trials, as has been said by previous speakers, it will open up a whole range of difficulties which were pointed out by the noble and learned Lord, Lord Morton, and many others. It would be a range which it was never intended should be dealt with by this type of provision.

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If the Committee were to pass the amendment to the new clause it would not thwart the noble and learned Lord the Lord Advocate in his object of bringing new technology to bear upon crimes such as serious fraud and capital offences. All of that would still stand. As I understand it, it would simply exclude from the new provisions this very peculiar type of legal proceedings called war trials. It seems to me that whatever happens to the War Crimes Bill the Committee would be very well advised to take that step in regard to this Bill and to ensure that nothing is altered in the trial of war crimes by provisions which have apparently been brought in, rather belatedly and possibly not solely with war trials in mind, at a time when they will be extremely relevant to this very doubtful new form of justice.
6.15 p.m.
Lord Donaldson of Lymington: As a judge I have been brought up on a number of principles, two of which I venture to think may be relevant to the debate today. The first is that neither the judges nor the courts, not I believe the citizens of this country, are in the least concerned with the motives of government in introducing legislation or particular clauses in legislation. The noble Lord, Lord Campbell of Alloway, seems to attach great importance to the Government's motives in introducing the amendment. For my part I know that the judges, and I should have thought most people concerned, would look simply at the wording of the statute as it emerges from Parliament. We are not concerned with the views of judges, or even, with great respect, with the views of Members of this Chamber as individuals. We are concerned with the will of Parliament, and that will be found purely in the legislation.
The second principle is that judges must never anticipate changes in the law in the sense of taking action in anticipation of them. I was made very well aware of that in 1974 with the election of a Labour Government when I was president of the Industrial Relations Court. It was as clear as daylight to me that the new Parliament would repeal the 1971 Act. Nevertheless it was my duty to go on administering that Act without the slightest regard to the likely changes in the law until the moment when the Act received Royal Assent. I do not claim credit for that. It is merely the way in which judges are expected to behave.
That principle does not apply to this Chamber, but it is a salutary rule that this Chamber should not legislate for a situation with which it is not yet faced. If the Bill were to receive Royal Assent tonight with this amendment, we should have the astonishing position of this Chamber saying that the provision shall not apply to a war crimes trial, knowing full well that it is impossible to hold a war crimes trial either in England or in Scotland as the law stands at the moment.
Surely the right time and place to debate the matter is in the context of a war crimes Bill when it comes before this Chamber. Whether or not it is appropriate for it to be dealt with on Second Reading is not a matter about which I know anything or on which I express a view. However, I assume that it
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will be possible to put down an amendment in Committee which would have precisely the effect of this amendment. It would have the great advantage that it would apply to England and Wales as well as to Scotland.
My noble and learned friends Lord Morton of Shuna and Lord Wilberforce have raised wider issues which apply to the amendment. It has been said, for example, that the impact of television evidence may be very different from the impact of evidence given by somebody who is present at the trial. That I would entirely accept. It is a point which deserves consideration. I would hope that the judge would be able to protect the accused in that respect. I would also hope that there would be power for the appropriate Minister to bring the law in by stages and perhaps confine it to particular types of trial for which there is existing jurisdiction.
One has only to think of the situation, for example, of the foreign bank manager—a Middle Eastern or Swiss bank manager—who does not wish to come to this country. One wants details of accounts of which he is in charge. Why should he not give evidence on a video link? On the other hand, if one was asking for identification evidence to be given on a video link, I for my part would be extremely wary. If I were exercising the powers which a judge would have under this clause I should hesitate for a very long time before I was prepared to give leave.
It has been said that under the law of Scotland, about which I know absolutely nothing and on which I express no view one way or the other, the trial judge in a criminal trial has no copy of the depositions—namely, the evidence that the prosecution witnesses in front of an examining magistrate or in other ways have said that they will give. It may be that the Scottish system works better. However, I can see a problem if a witness is to give evidence via a video link and one does not know what he is going to say. But I do not believe that that is a problem to be solved by primary legislation. Why cannot the judge say that he is not prepared to agree to video evidence being given unless he is furnished in advance with a statement of what the witness will say?
I have taken points rather at random as I jotted them down. I come now to the point that it is said that there may be a problem regarding immunity for counsel. I have every sympathy with counsel having immunity. I have even more sympathy with the judge having immunity. I shall not be in a position to conduct any trial—a criminal trial involving war crimes or any other criminal trial—because it is the tradition of my office that one does not try criminal cases, quite apart from the fact that I am an appellate judge in any case. It did not occur to me before this debate but I am now acutely aware that if in court I used my absolute immunity to criticise the secret police of Ruritania and was foolish enough to visit Ruritania afterwards, my immunity would not get me very far. That does not seem to me to be an objection to introducing such evidence.
Then it is said that we must ensure that remote witnesses are free of pressure. I agree. However, do not imagine that that is not also true of British

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courts. I have a strong recollection of sitting in the divisional court and having an interesting argument as to whether a wife could withdraw the plea of guilty which she had entered in the magistrates' court when she and her husband stood in the dock together. The husband had told her before they entered the dock that if she did not plead guilty he would kill her. It struck me that that was an extremely good reason for the wife to withdraw her unequivocal plea of guilty.
I remember thinking at the time that one could have a situation in which there were two accused standing next to each other and one covertly holding a knife against the other. There can certainly be pressure in an English court. Obviously one has to watch for it, and if one has been deceived by it one has to put it right afterwards.
If people are worried about pressures in the foreign studio that could be met by some representative being present. I also suggest that pressure is not likely to be exerted in the foreign studio; it will be exerted outside the studio. There is probably no way of dealing with that, but it has to be taken into account as a possibility.
Some noble and learned Lords suggested that there were great problems as to what law of evidence would apply. I do not think that there is any problem about that. Scottish law or English law would apply. The video would merely be an extension of the trial court, so I cannot see the problem there.
Although the proposed provision to be imported into Scottish law would have to be used with great care and would put a considerable burden on judges in the first instance, the Scottish courts should have that power available to them. We should not discuss war crimes at this stage when there is no jurisdiction anywhere in the United Kingdom to try a case for a war crime.
Lord Hutchinson of Lullington: Perhaps I may have five minutes of the Committee's time to beseech the Committee to support Amendment No. 293ZA. I should like to speak for five minutes as an advocate and to ask the Committee to realise what the situation with regard to war crimes will be if it accepts the provisions of the proposed Government amendment.
I should like to support every word that the noble and learned Lord, Lord Wilberforce, said about the reality. What will happen when I, as an advocate, sit at my desk and an accused person comes in and says, "I have been charged with a war crime"? I shall say, "What is your defence?" and the person will say, "I was not there. I am not the person who has been identified. I have reason to believe that the witness who gave evidence did so under threat. I was somewhere else. I have an alibi to which 20 people can speak and I remember signing at least 50 documents 50 years ago at the town and in the building where I was". What will the advocate do?
The situation is totally grotesque. The advocate must first deal with the identification. Presumably, the trials will take place under the rules of British justice or, in this context, Scottish justice. Will there be a parade? Will a dock identification be allowed?
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With regard to the alibi, how do you find those 40 witnesses? How do you set about it? Having read the Hetherington Report, the noble Lord, Lord Callaghan, will know perfectly well that it is the most astonishing document regarding the preparation of evidence for the prosecution. There is not one word in that report as to how you prepare the case for the defence. How can an advocate sitting in Scotland set out to establish an alibi involving 40 witnesses 50 years ago in Poland and German-occupied Russia? The situation is grotesque.
You apply for legal aid. You travel with your solicitor and look for the 40 people. When you find them, you ask them to give evidence on a television link at an astronomical cost. It is ludicrous. How can you discover whether the witness is giving his evidence under pressure? How can you discover that on a television link? How can you inquire into the background of how he is giving evidence? The documents in the Hetherington Report are set out in a whole chapter. The people concerned went through a mass of documents. With a translator, they went through whole archives in Freiburg, Berlin, Munich, Koblenz, Israel and the United States. How on earth could anyone be defended on that basis and obtain legal aid to go through all those archives and search out documents from 50 years ago?
I could continue for a long time. I am considering the government amendment as an advocate looking after the interests of a person who has been charged. I have used the word "grotesque" twice and I shall use it for a third time. The situation would be totally grotesque. I ask the Committee to bear that matter in mind and to look at it as a purely practical matter. Is it right and sensible to let the amendment go forward?
Lord Mishcon: It has been emphasised that this is a question of conscience and personal belief after trying to weigh up difficult arguments, in an important historic matter, as my noble friend Lord Callaghan said. I merely ask, as did the noble and learned Lord, Lord Hailsham: is this the time, the place or the appropriate debate in which to come to any such decision? Unlike others, I do not speak as a theologian. In this instance, I do not speak as a lawyer. I shall try to introduce what I believe every one of us wishes to protect; namely, the clarity of thought and disciplined business methods of this House.
I know that the noble Lord, Lord Campbell of Alloway, will forgive me—he knows that I have the highest personal regard for him—if I say that I believe he made a great mistake in making a speech of considerable length which was addressed not to the amendment but to the War Crimes Bill, the Second Reading of which is to take place in this House in the future.
What are we considering at this moment? We are not even considering what the noble Lord, Lord Hutchinson of Lullington, or learned judges spoke about. I say that with deep respect. At this moment we are discussing nothing other than the government amendment to introduce into Scots law what is already in a 1988 Act dealing with the law of evidence in England and Wales. I could have

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understood it if someone—perhaps the noble Lord, Lord Hutchinson of Lullington—had said, "We do not like this as evidence because it does not produce justice and we shall therefore vote against the amendment". I would have understood that and all the arguments about television and technology and the difficulties of defendants, which may apply in any number of cases, would have been completely relevant.
We are not asked to consider such matters in this amendment. Presumably the amendment suggests that all that is perfectly all right. We know about the use of technology in certain types of cases, including those involving children and fraud. It may well be interesting to use it in drug cases. It may be interesting and useful to have that kind of evidence in other cases. That is what we are considering at this moment. Do we accept that it is a useful provision to have in our law of evidence in Scotland, with which, I am sure, the Scots will deal in the same way as we shall in England and Wales; in other words, there will be gradation, as the noble and learned Lord, Lord Wilberforce, said? Shall we see to it that it applies only in cases where we think it proper?
That would be a weird case for the statute book and for history and future generations to look at. They will see that we in this House accepted a provision stating that evidence which could be given by video or television could be given in any number of cases, but that we went down in history as saying that it could not be used for war crimes. What an odd state for our statute book! That is the consideration to which I now turn very quickly. As a lawyer I was taught to be concise and to try to be brief. I intend to follow that lesson.
The noble and learned Lord, Lord Wilberforce, whom we all treat with respect and affection was wrong when he said that this was the only opportunity to deal with this matter if we feel that this method of evidence should not be used in war crimes cases. When the War Crimes Bill comes before this House, there is nothing to stop us from saying that this provision and the relevant section in the Criminal Justice Act 1988 shall not apply in respect of war crimes. There is nothing to stop this Chamber from doing that when we have considered the whole ambit of war crimes at the appropriate time.
For those who are in favour of not having that evidential measure for war crimes, that is the way, the place and the time in which to deal with this matter. I beg this Committee, for more than one reason, not to pass an amendment which states that this is perfectly correct for every type of case one can think of, that it is absolutely right that it should be the law of Scotland and that it is quite fair in every respect except in one case—that of war crimes.
This an ill formulated amendment, whatever our views may be on the issues that we have debated this afternoon.
6.30 p.m.
Lord Fraser of Carmyllie: In view of the lengthy and involved contributions that have been made I should like briefly to summarise. In my wildest
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dreams I never expected that, in promoting a law reform (miscellaneous provisions) Bill, I should be subjected to such a wide theological discussion of issues which are well beyond anything to do with the law in Scotland.
However, I have a much more important concern. The War Crimes Bill was not introduced by this Government because it was in any sense a manifesto commitment or anything of that kind. It followed a clear indication in another place as to the will of that Chamber with regard to the introduction of legislation. When that legislation was then introduced it secured a massive majority. From the voting records at that Second Reading, it is quite impossible to determine in any sense a party political divide on the matter. Furthermore, in that Bill no attempt was made to disapply Section 32 of the Criminal Justice Act 1988, although, as the noble Lord, Lord Campbell of Alloway, appreciates, specific reference was made to it at one time by the Shadow Home Secretary. Against that background I should be extremely concerned to deal with matters relating to war crimes in a Bill such as this.
Section 32 of the 1988 Act was introduced in general terms, although quite clearly it originated from the report of the noble and learned Lord, Lord Roskill. At the time it went through this Chamber, it was dealt with in general terms. In many respects I can speak briefly on this matter. The noble and learned Lord the Master of the Rolls dealt with it very succinctly and accurately indeed. I still consider that it would be bizarre to have this provision excluded for Scotland while the provision remained in place for England. Of course there are differences in our evidential law; nevertheless, this is a matter of such importance that such a move would be quite extraordinary.
I am bound to say that, given the very clear involvement of the trial judge at the centre of this provision, I am a little surprised that there is such distrust of a member of the Scottish judiciary as to the way in which he would be likely to approach this matter and, were there to be major difficulties in the adducing of this evidence, that he would not restrict it.
To consider the separate terms, first he has to allow the arrangements of the television link to be set up. He also has to be satisfied as to the arrangements for giving evidence. If there were any attempt to put pressure on the witness, it would be quite clear that the judge could act. The law is the law of Scotland as it obtains at the moment; it is certainly not the law of the foreign country.
I am in a further difficulty at this point. As is made clear in the Hetherington-Chalmers Report at paragraph 1.7, the report consists of two parts. The first part has been published and the second has not been published, but the Committee will appreciate that I have been privy to its contents. I shall try to answer some of the points that have been raised and in particular those difficulties indicated by the noble and learned Lord, Lord Hutchinson, as an advocate. He is not the only advocate in this Chamber, but I understand what he is driving at. If there were to be difficulties as to identification, for example, I have little doubt but that the trial judge would

957
immediately seize upon them and exclude the evidence altogether or refuse to allow the link to be set up. With respect to the noble and learned Lord, Lord Morton of Shuna, I think that under our law in Scotland it would be perfectly possible for it to be mad; clear in making the original application to the court whether or not identification was at the centre of the evidence to be taken.
I could say much more about this matter but, for reasons that I have already indicated in opening, I am anxious to avoid giving any indication of the type of evidence which might usefully be obtained from a foreign state in the event of the introduction of a war crimes prosecution. I hope that one thing is clear. Whatever the noble Lord, Lord Campbell of Alloway, may have said, I have never sought to disguise the fact—I repeated it in my opening remarks—that I should like to have this provision if there is to be a war crimes prosecution. Beyond that, I want this provision—Amendment No. 292—for the law of Scotland. I am grateful to the noble Lord, Lord Mishcon, for his understanding of why I want it.
I am a little weary of being told that we do not prosecute white collar fraud sufficiently when a very useful evidential tool at my disposal might be whipped away should Amendment No. 292 be rejected by this Committee. Most important of all, it seems to me that the sensible way to approach this issue is to consider the War Crimes Bill and give it a Second Reading. As the noble and learned Lord the Master of the Rolls indicated—and I respectfuly agree with him—if the provision relating to television links is to be disapplied, let it be disapplied in that Bill and in the rest of the United Kingdom as well.
Lord Morton of Shuna: Can the noble and learned Lord assure the Committee that if an amendment to do what he suggests is put into the War Crimes Bill, that would be in order, in view of the Long Title of the War Crimes Bill? I understand that the Government intended to table an amendment in connection with licensing and that certain difficulties arose. It seems to me, in view of the Long Title of this Bill, that there might be difficulties about that being in order.
Lord Fraser of Carmyllie: I have already indicated that I consider that that is the appropriate place to do it. I certainly do not advocate that anyone should do that, but I believe that that is the appropriate place to do it in relation to both jurisdictions. That is why I think it is inappropriate to deal with it at this stage.
A noble Lord: Can you do it?
Lord Fraser of Carmyllie: As I understand matters, yes, or I should not have suggested it to the Committee. It would have been utterly dishonourable of me to have done otherwise. I hope that the noble Lord would not expect me to suggest an inappropriate way of dealing with the matter. I would not have dealt with it in any other way unless I thought that it was something that should be done.
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This has been quite an extraordinarily complicated debate and it is unusual that such a point should have occurred during the course of a debate on a law reform (miscellaneous provisions) Bill. I should like to urge the Committee to agree to Amendment No. 293. If Amendment No. 293ZA is pressed to a Division, I shall object to it.
Lord Campbell of Alloway: May I first thank all noble Lords, and my noble and learned friend the Lord Advocate, who have spoken in this debate? The key to the reason why this amendment ought to be supported is the refusal or inability of my noble and learned friend the Lord Advocate to meet the request for an undertaking which was just asked for by the noble and learned Lord, Lord Morton. So far as I understand—
Lord Mishcon: I am sorry to interrupt the noble Lord, as I did previously, but he will be very keen to see that nobody is misled in the Committee and that any accusation made against an honourable Member of his own Front Bench is made seriously and properly. The noble and learned Lord the Lord Advocate, as I understood him, said that it would be perfectly appropriate, as he saw it, for an amendment to be moved to the War Crimes Bill saying that this evidentiary procedure should not be invoked or be able to be used in the event of war crimes. That was made perfectly clear to the Committee, certainly to me.
Lord Campbell of Alloway: First, I made no accusation against anybody. Secondly, I understood that my noble and learned friend the Lord Advocate said that he was unable to meet the request for the undertaking. If my hearing misled me, I shall be so informed and I shall immediately apologise for having misheard. But I make no accusation. I am very surprised that the noble Lord, Lord Mishcon, could imagine that I would make an accusation, even against anyone of his own Front Bench let alone on my own. I do not indulge in accusations.
As I understood, and Hansard will speak for itself, the noble and learned Lord, Lord Morton of Shuna, made a request as to how this matter might be dealt with on the Second Reading of the War Crimes Bill. As I understood the position, that request could not be met. In those circumstances, Amendment No. 293ZA is clearly to be supported and it puts paid to the elegant speech of the noble Lord, Lord Mishcon—perhaps that is why he intervened, but it does if my understanding is correct—because Amendment No. 293ZA keeps the arena of debate wide open and avoids the pre-emption which is inherent in Government Amendment No. 292.
The justification is quite simply that of the noble and learned, Lord, Lord Wilberforce, that justice cannot be done if Amendment No. 292 is used in war crimes—a justification simply put that attracted the support of the noble Lord, Lord Callaghan, the noble Lord, Lord Grimond, and other noble Lords.
According to the Written Answer—and my noble and learned friend the Lord Advocate cannot suppose otherwise because it is the Government's Written Answer on 8th March in Hansard —the

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intended purpose of Amendment No. 292 is as an aid to conviction in war crimes trials and on that basis it is right that one should exclude this purpose. On that basis, I hope your Lordships think it right that I should take the opinion of the Committee.
The Deputy Chairman of Committees (Lord Hayter): The Committee has been debating Amendment No. 293ZA, which is an amendment to Amendment No. 292. For the sake of clarity, I shall read out the amendment which we have been debating. It reads:
("( ) The provisions of subsections (1) and (2) above shall not apply to any trial involving alleged war crimes committed in German-held territory during the Second World War.").
6.45 p.m.
On Question, Whether the said amendment (No. 293ZA), as an amendment to Amendment No. 292, shall be agreed to?
Their Lordships divided: Contents, 137; Not-Contents, 62.

DIVISION NO. 1

CONTENTS

Ackner, L.

Greenway, L.

Ailesbury, M.

Gridley, L.

Aldington, L.

Grimond, L.

Allenby of Megiddo, V.

Grimston of Westbury, L.

Allerton, L.

Grimthorpe, L.

Alport, L.

Hailsham of Saint Marylebone, L.

Ampthill, L.

Ardwick, L.

Halsbury, E.

Astor, V.

Hampton, L.

Belhaven and Stenton, L.

Hanworth, V.

Blackstone, B.

Harris of Greenwich, L.

Blake, L.

Harrowby, E.

Boyd-Carpenter, L.

Havers, L.

Bridge of Harwich, L.

Hayter, L.

Brightman, L.

Henderson of Brompton, L.

Broadbridge, L.

Hives, L.

Brooks of Tremorfa, L.

Howie of Troon, L.

Brougham and Vaux, L.

Hutchinson of Lullington, L.

Buckmaster, V.

Hylton-Foster, B.

Butterworth, L.

Irvine of Lairg, L.

Caccia, L.

Jauncey of Tullichettle, L.

Callaghan of Cardiff, L.

Johnston of Rockport, L.

Campbell of Alloway, L. [Teller.]

Joseph, L.

Killearn, L.

Cledwyn of Penrhos, L.

Kimball, L.

Coleraine, L.

Kirkhill, L.

Colnbrook, L.

Kitchener, E.

Colwyn, L.

Lauderdale, E.

Cork and Orrery, E.

Listowel, E.

Craigavon, V.

Lockwood, B.

Dacre of Glanton, L.

Longford, E.

Darcy (de Knayth), B.

Lucas of Chilworth, L.

David, B.

Lurgan, L.

Davies of Penrhys, L.

Lyell, L.

De L'Isle, V.

Macaulay of Bragar, L.

Dean of Beswick, L.

Masham of Ilton, B.

Dilhorne, V.

Mersey, V.

Donaldson of Kingsbridge, L.

Monson, L.

Donegall, M.

Montgomery of Alamein, V.

Ellenborough, L.

Morton of Shuna, L. [Teller.]

Elles, B.

Mottistone, L.

Erne, E.

Munster, E.

Falkland, V.

Nicol, B.

Foot, L.

Norfolk, D.

Fortescue, E.

Ogmore, L.

Fraser of Kilmorack, L.

Orkney, E.

Gardner of Parkes, B.

Orr-Ewing, L.

Glenarthur, L.

Oxfuird, V.

960

Perth, E.

Shaughnessy, L.

Platt of Writtle, B.

Sherfield, L.

Plummer of St. Marylebone, L.

Simon of Glaisdale. L.

Somers, L.

Ponsonby of Shulbrede, L.

Soper, L.

Prys-Davies, L.

Stodart of Leaston, L.

Rea, L.

Stoddart of Swindon, L.

Rees, L.

Swinfen, L.

Renton, L.

Thomson of Monifieth, L.

Renwick, L.

Thorneycroft, L.

Rochester, L.

Tordoff, L.

Roskill, L.

Tryon, L.

Russell, E.

Vaux of Harrowden, L.

Sainsbury of Preston Candover, L.

Waldegrave, E.

Whaddon, L.

St. John of Bletso, L.

Whitelaw, V.

Salisbury, M.

Wilberforce, L.

Saltoun of Abernethy, Ly.

Williams of Elvel, L.

Seear, B.

Winchilsea and Nottingham, E.

Seebohm, L.

Selborne, E.

Winstanley. L.

Selkirk, E.

Winterbottom, L.

Shannon, E.

Young, B.

NOT-CONTENTS

Addington, L.

Lloyd of Hampstead, L.

Alexander of Tunis, E.

Long, V. [Teller.]

Auckland, L.

McColl of Dulwich, L.

Balfour, E.

Mackay of Clashfern, L.

Barnett, L.

Mackie of Benshie, L.

Beloff, L.

McNair, L.

Belstead, L.

Margadale, L.

Blatch, B.

Mishcon, L.

Campbell of Croy, L.

Monk Bretton, L.

Carmichael of Kelvingrove, L.

Mountevans, L.

Mountgarret, V.

Carnarvon, E.

Nathan, L.

Carnegy of Lour, B.

Nelson, E.

Carnock, L.

Newall, L.

Carter, L.

Pender, L.

Cawley, L.

Phillips, B.

Cocks of Hartcliffe, L.

Prior, L.

Craigmyle, L.

Quinton, L.

Crathorne, L.

Reay, L.

Denham, L. [Teller.]

Redesdale, L.

Donaldson of Lymington, L.

Sanderson of Bowden, L.

Elliot of Harwood, B.

Serota, B.

Elliott of Morpeth, L.

Sharpies, B.

Erroll, E.

Skelmersdale, L.

Faithfull, B.

Stedman, B.

Fraser of Carmyllie, L.

Strabolgi, L.

Galpern, L.

Taylor of Gryfe, L.

Hacking, L.

Thomas of Gwydir, L.

Harmar-Nicholls, L.

Tranmire, L.

Henley, L.

Ullswater, V.

Hughes, L.

Underhill, L.

Jeger, B.

Resolved in the affirmative, and amendment to the amendment agreed to accordingly.
6.54 p.m.
[Amendment No. 293A not moved.]
On Question, Amendment No. 292, as amended by Amendment No. 293ZA, agreed to.
The Minister of State, Scottish Office (Lord Sanderson of Bowden)The Minister of State, Scottish Office (Lord Sanderson of Bowden) moved Amendment No. 293B:
After Clause 44, insert the following new clause:
("Homeless due to risk of violence
In subsection (3) of section 24 of the Housing (Scotland) Act 1987 (definition of homelessness), after paragraph (b) there shall be inserted—
"(BB) it is probable that occupation of it will lead to—

(i) violence; or

961

(ii) threats of violence which are likely to be carried out, from some other person who previously resided with that person, whether in that accommodation or elsewhere, or".").

The noble Lord said: I shall be speaking also to Amendment No. 304AB, which is consequential upon Amendment No. 293B. I gather that the amendment is grouped with Amendment No. 297D, which stands in the name of the noble Lord, Lord Macaulay of Bragar.
The amendment in my name, together with its consequential amendment, is designed to achieve broadly the same effect as the amendment of the noble Lord, Lord Macaulay of Bragar. Fortuitously, since the noble Lord tabled his amendment, we have had some time to develop a version which should fully meet the concerns that he was addressing.
The concern with which the amendments are intended to deal is that a person who is at risk of violence from someone who does not live in the same house, for example from their ex-spouse, would not normally be able to be classified as homeless by the local authority. Two years ago when this Chamber first debated the then Housing (Scotland) Bill a similar amendment was discussed. At that time I indicated that the Government had some sympathy with the aim of the amendment but would like to consider the matter further. On doing so we found broad support for a measure along these lines. It is fortunate that the Law Reform (Miscellaneous Provisions) (Scotland) Bill which deals with several matters relating to matrimonial law offers us the opportunity to address this issue.
The amendment will allow someone at risk of violence to be treated as homeless if the violence is threatened by someone else who has lived with the person concerned at some time. In some ways it goes wider than the amendment of the noble Lord, Lord Macaulay, in that it does not specify those other people who might offer violence. However, in another way the amendment I propose is narrower since the persons threatening violence must have lived with the person at risk. I believe that the government amendment draws the line in the right place. I also understand that the Scottish Homeless Group which has played a large part in pursuing this matter is happy with the approach in the government amendment. I therefore commend the amendment and the consequential amendment, Amendment No. 304AB, to the Committee. I beg to move.
Lord Carmichael of Kelvingrove: I thank the noble Lord for his amendment. I take his word that it covers all the points that were raised in Amendment No. 279D. Because it is a complicated and rather important amendment, perhaps he will accept that, although my noble friend and I do not move that amendment, we shall wish to take advice at Report stage. I am happy that he has tried to accommodate us.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 293C:
After Clause 44, insert the following new clause:
("Admission and detention of mental patients Detention under the Mental Health (Scotland) Act 1984
962
.—(1) After section 26 of the Mental Health (Scotland) Act 1984 there shall be inserted the following section—
"Interim detention
26A.—(1) This section applies where—

(a) a patient is detained in a hospital under section 26 of this Act;

(b) a change in the condition of the patient makes it necessary in the interests of his own health or safety or with a view to the protection of other persons that the patient continue to be detained after the expiry of the period of 28 days referred to in subsection (3) of that section; and

(c) no application for admission has been submitted to the sheriff in respect of the patient and it is not reasonably practicable to submit such an application before the expiry of that period.

(2) Where this section applies, a relevant medical practitioner may lodge with the sheriff clerk for a sheriff of the sheriffdom within which the hospital is situated a report on the condition of the patient complying with the following provisions of this section and such report shall, when so lodged, be sufficient authority for the continued detention of the patient in the hospital where he is until the expiry of a period of three days (excluding Saturdays, Sundays and court holidays) from the date when the report was lodged.
(3) In this section "relevant medical practitioner" means a medical practitioner who—

(a) is approved for the purposes of section 20(1)(b) of this Act; and

(b) has personally examined the patient.

(4) A report referred to in subsection (2) of this section shall not be lodged unless, where practicable, the consent of the nearest relative of the patient or of a mental health officer has been obtained.
(5) A report referred to in subsection (2) of this section shall include—

(a) a statement by the relevant medical practitioner that in his opinion—

(i) the patient is suffering from mental disorder of a nature or degree which makes it appropriate for him to be detained in a hospital for at least a limited period; and

(ii) the patient ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons;

(b) a statement that such a consent as is mentioned in subsection (4) of this section has been obtained or, as the case may be, a statement of the reasons for the failure to obtain that consent; and

(c) a statement as to whether the relevant medical practitioner is related to the patient and of any pecuniary interest that the relevant medical practitioner may have in the admission of the patient to hospital.

(6) Where a patient is detained in a hospital under this section, the relevant medical practitioner shall forthwith so inform—

(a) the Mental Welfare Commission;

(b) where practicable, the nearest relative of the patient (except where the nearest relative has consented under subsection (4) of this section); and

(c) the local authority (except where a mental health officer appointed by that authority has consented under subsection (4) of this section),

and shall inform the patient of his right of appeal under subsection (7) of this section and of the period within which it may be exercised.
(7) A patient who is detained in hospital under this section may, within the period referred to in subsection (2) of this section, appeal to the sheriff to order his discharge and the provisions of section 33(2) and (4) of this Act shall apply in relation to such an appeal.
(8) Where a patient is detained in hospital under this section the authority for his detention under section 26 of this Act shall cease.
(9) Subject to section 21 (3B) and (3C) of this Act, a patient who has been detained in a hospital under this section shall

963
not be further detained under this section nor detained under section 24 or 26 of this Act immediately after the expiry of the period of detention under this section."
(2) In section 21 of that Act (approval by sheriff of applications for admission)—
(a) after subsection (3) there shall be inserted the following subsections—
"(3A) Within three days (excluding Saturdays, Sundays and court holidays) of an application for admission being submitted, the sheriff shall—

(a) approve the application; or

(b) where he decides to hold a hearing before determining the application, hold such hearing.

(3B) An application for admission in respect of a patient who is detained in hospital under section 26 or 26A of this Act shall, when submitted to the sheriff, be sufficient authority for the continued detention of the patient under that section until the expiry of a period of three days (excluding Saturdays, Sundays and court holidays) from the date when the application was submitted.
(3C) Where a hearing in relation to an application for admission in respect of a patient who is detained in hospital under section 26 or 26A of this Act is, for whatever reason, adjourned, the authority for the detention of the patient under that section by virtue of subsection (3B) of this section shall continue until the application for admission is finally determined."; and
(b) after subsection (5) there shall be inserted the following subsection—
"(6) For the purposes of this section, an application is submitted to the sheriff when it is lodged with his sheriff clerk."
(3) In section 26(7) of this Act (short term detention), at the beginning there shall be inserted the words "Subject to section 21(3B) and (3C) of this Act,".
(4) In section 28(4) of that Act (return and readmission of patients absent without leave: hospital), for the words "24(3), 25(2) or 26(3)" there shall be substituted "21(3B) (subject, where applicable, to section 21(3C)), 24(3), 25(2), 26(3) or 26A(2)".
(5) In section 33 of that Act (discharge of patients: hospital)—

(a) in each of subsections (2) and (4), after the word "26," there shall be inserted "26A,"; and

(b) after subsection (6) there shall be inserted the following subsection—

"(7) Where an order for discharge is made in respect of a patient in relation to whom an application for admission has been submitted but has not been finally determined, the managers of the hospital shall notify the sheriff to whom the application has been submitted of the making of the order for discharge."
(6) In section 35 of that Act (appeals to the sheriff: hospital), in each of subsections (2) and (3), after the word "sections" there shall be inserted "or under section 26A of this Act".
(7) In section 59 of that Act (Interpretation of Part V), at the end there shall be added the following subsection—
"(4) In this Part of this Act, "court holidays" means any day which is a court holiday by virtue of section 10(2) of the Bail Etc. (Scotland) Act 1980.".").
The noble and learned Lord said: It might be useful in moving the amendment if I also speak to Amendment No. 294 and Amendment No. 304AC, which is consequential. I do not need to elaborate on Amendment No. 294 as the intention in the new clause that the Government put forward as Amendment No. 293C is to meet exactly the point that the noble and learned Lord, Lord Morton of Shuna, first put forward in this matter.
Perhaps I may briefly explain the intention and effect of the Government's proposed new clause, which is designed to correct a lacuna in the Mental
964
Health (Scotland) Act 1984 highlighted in an appeal heard in this House in 1988. Sections 24 and 26 of that Act provide for the detention of mentally disordered persons in case of emergency for three days and 28 days respectively. In cases where it is considered necessary to detain a patient beyond the 28 days allowed in Section 26, an application to the sheriff for admission to hospital has to be submitted under the provisions of Sections 18 and 21 of the Act.
That procedure works satisfactorily in the vast majority of cases but very occasionally—and we are only speaking of one or two cases each year at the most—a patient detained under Section 26 may initially make good progress and then suddenly and unexpectedly deteriorate towards the end of the 28-day period. In such cases there may be either insufficient time to complete a full Section 18 application for admission or, where there is time to lodge such an application, insufficient time for a sheriff to consider the application before the authority to detain expires. In either case, the medical practitioner has no choice but to discharge the patient although it may well not be in the best interests of either the patient or the public to do so.
The new clause is designed to overcome those problems where there is insufficient time to complete a full Section 18 application for admission. Then, subject to a number of safeguards, the medical practitioner may lodge a report on the patient's condition with the sheriffs clerk to enable the patient to be detained for up to a further three days to allow a full application to be submitted.
Where a Section 18 application has been lodged but there has been insufficient time for a sheriff to hear it before the expiry of the 28-day period, the new clause provides that detention can be extended for up to a further three days to enable a hearing to take place. As an important new safeguard for patients, we have provided that the sheriff must hold an initial hearing of all Section 18 applications within three days of their being lodged.
As I indicated, this amendment is designed to improve upon the drafting of the amendments tabled by the noble and learned Lord, Lord Morton of Shuna. However, in moving it I should acknowledge his very valuable contribution in bringing the matter before the Committee. It was originally prompted by a suggestion from the Law Society of Scotland. It was also mentioned by the Mental Welfare Commission for Scotland. I beg to move.
7 p.m.
Lord Morton of Shuna: I am extremely grateful to the noble and learned Lord the Lord Advocate for moving this amendment and for what he said about my Amendment No. 294. To call it my amendment is perhaps rather presumptuous because it was drafted by the Law Society. However, I must take responsibility for it and I am glad to do so.
This provision is very important although it affects only a few people. It is a missing link which must be put right. I am glad that something that the Law Society and I were able to do has enabled the Government to insert this miscellaneous provision

965
into this miscellaneous provisions Bill. I welcome the amendment.
On Question, amendment agreed to.
[Amendments Nos. 294 and 295 not moved.]
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 296:
After Clause 44. insert the following new clause:
("Appointment of acting nearest relative
In section 56 of the Mental Health (Scotland) Act 1984, in subsection (3) there shall be added at the end "(d) that the nearest relative is unsuitable to act as such" ").
The noble and learned Lord said: Section 56 of the Mental Health (Scotland) Act provides that the sheriff may direct that the function of the nearest relative shall be carried out by somebody else and provides three conditions for that to be done. The three conditions are: first, that there is no nearest relative; secondly, that the nearest relative is himself incapable because of illness or mental disorder; and, thirdly, that the nearest relative is unwilling or considers it undesirable to act.
This amendment proposes a fourth condition; namely, that the nearest relative is unsuitable to act. I am sure that Members of the Committee will readily see that there may be somebody who is not mentally ill but is still acting in a manner which everybody considers to be not in the best interests of the patient. Therefore, it would be appropriate that he should not fulfil the function of nearest relative. I beg to move.
Lord Fraser of Carmyllie: I fully accept that there may be circumstances in which a nearest relative may be unsuitable to act as such. For example, it may be that in the past the nearest relative has been implicated in the abuse of a patient. It would then be clearly inappropriate for such a person to exercise the nearest relative functions. I am grateful to the noble and learned Lord and to the Law Society of Scotland for bringing this matter to my attention and I accept the amendment.
On Question, amendment agreed to.
Lord Morton of Shuna Lord Morton of Shuna amoved Amendment No. 297:
After Clause 44, insert the following new clause:
("Reservation of minerals
.—(1) A party to any contract for the purchase or lease of heritable property shall not be entitled to resile from such contract by reason only that the title to such heritable property contains a reservation of minerals unless either—

(a) the contract otherwise provides, or

(b) the owner of the minerals is entitled to enter the surface of the heritable property.

(2) Any provision in any deed which enables the owner of minerals to work them without liability to pay compensation for damage caused to the surface of the ground or the buildings thereon shall be construed as if any such provision contained an obligation on the part of the owner of the minerals to pay compensation to the owner of the surface and buildings thereon for any such damage caused by any working of minerals carried out after the commencement of this Act.
(3) The provisions of subsection (I) above shall apply to any contract concluded after the commencement of this Act and the provisions of subsection (2) shall apply to any provision in any deed whenever granted.
966
(4) The compensation payable under subsection (2) above shall be assessed by a single Arbiter appointed, failing agreement, under the Arbitration (Scotland) Act 1894.
(5) The provisions of this section of this Act shall not apply to any minerals or mineral rights vested in the British Coal Corporation constituted under the Coal Industry Nationalisation Act 1946."
The noble and learned Lord said: This amendment is suggested by the Law Society and is designed to meet a difficulty which is relatively common and inappropriate. It arises in two situations: first, where somebody buys a suburban house and then wishes to get out of the transaction and does so because there is no reservation of minerals. That person bought the house to live in and not in order to mine in the land. However, because there is no reservation of minerals he is able to get out of the transaction.
The other difficulty arises where there is in the superior a right to work minerals without a right to compensation. That renders the occupier's right to sell his land virtually impossible and it becomes unmarketable. This clause seeks to provide presumptions which apply unless the contract otherwise provides. This is an important area. I beg to move.
Lord Fraser of Carmyllie: The purpose of this amendment is to specify circumstances in which it would and would not be acceptable to resile from a contract to purchase heritable property when a title was found to contain a reservation of minerals. The amendment also implies into deeds a compensation clause for the owner of the surface where there is a right to work minerals.
As the noble and learned Lord indicated, conveyancing problems have arisen where minerals may be reserved to their owner but no provision is made to compensate the person who owns land or property on the surface above. This new clause would substantially strengthen the position of the surface owner or lessor but he in turn would no longer enjoy a general right to resile from a contract for purchase or lease in the event of a reservation of minerals being identified after a contract had been agreed.
Where I think the clause falls short is in dealing with the rights of the mineral owner for any loss of rights he may suffer. It is a fundamental principle of Scottish law that rights are not merely confiscated without compensation. It may be a fundamental principle of legal systems to which we are subject that that right should not be confiscated without compensation.
In pointing out that difficulty I do not wish to indicate that I have no sympathy with the problems which exist. However, I believe that the matter could be dealt with more comprehensively as part of the review of property law which the Scottish Law Commission is currently undertaking. With that explanation, I hope that the noble and learned Lord will feel able to withdraw his amendment.
Lord Morton of Shuna: In the confident hope that some time before the end of the century the Law Society will come up with something which may enable amendments to be made, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 297A not moved.]
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 297B:
After Clause 44, insert the following new clause:
("Intentional homelessness: matrimonial rights
The following subsection is inserted after section 26(2) of the Housing (Scotland) Act 1987—
"(2A) It shall not be competent for a housing authority to hold a person to be intentionally homeless solely on the grounds that he or she does not intend to seek to exercise his or her rights under the Matrimonial Homes (Family Protection) (Scotland) Act 1981, as expressed in section 3(1), section 4, section 13 and section 18".").
The noble Lord said: I shall speak also to Amendment No. 297C. The purpose of these two amendments is to try to close what has become a loophole in existing legislation for the rehousing of an abused woman. The introduction of the matrimonial homes Act aimed to give women suffering from marital violence additional protection if they wish to remain in the matrimonial home through, for example, exclusion orders. It was never intended to be used as an alternative to rehousing under the homelessness legislation if the latter is what the woman chose, taking into account all relevant factors including the safety of herself and her children. That was made quite clear during the passage of the matrimonial homes Bill through Parliament. In subsequent guidance the Secretary of State made it quite clear that it was not meant to apply in the way that it is now sometimes interpreted.
On 30th June 1981 it was stated in Hansard that the Secretary of State considered,
"that a decision by a spouse not to exercise their legal rights against the other spouse should not be regarded as an indication of intentional homelessness".
That was also stated in the Scottish Development Department Circular No. 21/1982. The Scottish code of guidance on the homelessness legislation and the Scottish Development Department circular makes it quite clear how local authorities should respond to abused women seeking rehousing. Nevertheless the recently published Scottish Home and Health Department research on the operation of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 confirms that a significant number of Scottish local authorities continue to ignore this and women in many parts of the country may be classified as intentionally homeless or as not homeless at all if they choose not to exercise their rights under the matrimonial homes Act.
We believe that legislation is required to ensure uniform practice and that abused women are not forced to endure continued risk of violence. I beg to move.
Lord Morton of Shuna: I believe that it was the original intention that Amendment No. 298 should be included in this grouping. It may perhaps be in accordance with practice that I speak to that amendment now rather than later.
Amendment No. 298 tries to amalgamate into one what the noble Lord, Lord Carmichael, has tabled
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in two amendments. That is perhaps the only merit of my amendment as opposed to his. There is no difference between us as to purpose.
The difficulty arose after a decision of the Court of Session. As we are in a state where apparently we are supposed to confess our sins, I say that it was not my decision but on behalf of the Court of Session I am penitent. The decision arose in the case of MacAlinden v. Bearsden and Milngavie District Council. The trial judge said that the person was not homeless because she had failed to operate Section 18 of the matrimonial property Act and was therefore intentionally homeless.
The amendment seeks to avoid that problem, of which the Secretary of State is aware and with which he has dealt, but which unfortunately local authorities duck because they have to meet the cost. The attempt here is to make the position more clear. I hope that even if our amendments are not properly drafted, at least the principle will be acceptable to the Government.
Lord Sanderson of Bowden: I feel as though I were back in 1988; the only difference is that the noble and learned Lord has gone to the Cross-Benches and is now a judge. However, we have all been here before.
The amendments seek to prevent local authorities, in determining whether an applicant is homeless, from taking into account whether he or she has exercised, or intends to exercise, his or her rights under the Matrimonial Homes (Family Protection) (Scotland) Act 1981. However, I remain of the view which I expressed in 1988 that the 1981 Act provisions should not be bypassed, since they offer a straightforward remedy for those who no longer wish to share the occupancy of their home with their spouse or partner, and have good reason for taking that decision. It seems to me to be entirely right that in most cases an attempt should be made to use the 1981 Act to resolve these kinds of domestic problem.
I agree entirely that, in some circumstances, an applicant under the homelessness legislation will not be able to make use of the 1981 Act rights. There will also be some cases where for an applicant to seek to make use of the rights might increase the risk of violence or harassment taking place. I accept therefore that there will be some cases when a local authority should assess an applicant as unintentionally homeless, even though he or she has not taken all the steps open under the 1981 Act. However, I believe it would be wrong to seek—as the amendments do in essence—to prevent by statute a local authority from taking into account an applicant's failure to make use of those rights. It should be up to the local authority to consider that together with all other matters when carrying out its duty under the homelessness legislation to enquire whether an applicant is homeless or threatened with homelessness. We should not limit the authority's discretion in the way the amendment proposes.
I do, however, recognise the concern expressed by your Lordships that some local authorities may not make allowance for those cases where it is impossible or inappropriate for an applicant to make use of his or her 1981 Act rights. That is a matter which we

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will bear in mind in our review of the code of guidance on the homelessness legislation which is currently under way and which we hope to publish certainly in the course of this year, probably in the summer or early autumn, with a view to clarifying and tightening the advice we give to authorities.
In view of that explanation, I hope that the noble Lord will agree to withdraw the amendment.
Lord Carmichael of Kelvingrove: I thank the Minister for his reply and perhaps I may correct some statements which I made. The noble and learned Lord, Lord Morton of Shuna, was in the same trap of referring to spouses as if they were women only, whereas a spouse is either party to the marriage.
I accept that a local authority must have certain rights in the matter and that there could be abuse. Weighted against the abuse that could be caused to a spouse, I would rather lean on the side of the homeless spouse. But I will look carefully at the Minister's reply and am grateful for the trouble he has taken. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 297C and 297D not moved.]
7.15 p.m.
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 297E:
After Clause 44, insert the following new clause:
("Exclusion orders
Section 4(3)(a) of the Matrimonial Homes (Family Protection) (Scotland) Act 1981 is omitted.").
The noble Lord said: The purpose of this amendment is to prevent the unnecessary confusion which is recognised by the judiciary to complicate conditions for the granting of an exclusion order. Scottish Home and Health Department research points to the possible incompatibility between Section 4(2) and Section 4(3)(a), demonstrating the confusion which can arise regarding the circumstances in which an exclusion order may be granted.
The removal of Section 4(3)(a) would mean that, after the court had successfully applied the test in Section 4(2) that an exclusion order was necessary for the protection of the applicant, the only factor which would make it unreasonable to grant the exclusion order would be where the matrimonial home referred to was tied to the man's occupation or livelihood. As the legislation stands it is possible to apply subsequent tests of reasonableness or balance of hardship which can conflict with the already determined necessity for protection for the woman.
Those are the basic reasons behind the amendment. I beg to move.
Lord Sanderson of Bowden: I am aware that a case for abolishing subsection (3)(a) has been made from time to time. It was a recommendation of a research study undertaken by the University of Strathclyde and published in December 1988. The suggestion has been considered afresh by the Scottish Law Commission in its Discussion Paper No. 85, which
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was published on 29th March, and the commission came down resolutely for retention of the provision, which it sees as essential to prevent the mandatory requirement in subsection (2) of the Act from operating unreasonably. The commission catalogues at paragraph 6.34 of its paper a number of absurdities that could arise if the subsection were repealed. I shall quote only one: a court would have to grant exclusion orders against both spouses if each applied for an order and proved that his or her health would be injured by the conduct of the other if both remained in the home.
I am sure that with that, and other examples which are contained in the submission from the Scottish Law Commission—a copy of which I shall be happy to provide—the noble Lord might feel well advised to withdraw the amendment.
Lord Carmichael of Kelvingrove: With that advice and the promise of more information I have little option but to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 297F:
After Clause 44, insert the following new clause:
("Priority need for accommodation: extension to 16 and 17 year olds.
In section 25(1)(c) of the Housing (Scotland) Act 1987, after "physical disability" there shall be inserted "or because he is 16 or 17 years old".").
The noble Lord said: The amendment seeks to ensure that in Scotland young people of 16 or 17 years of age are considered vulnerable following the homeless persons legislation contained in Part II of the Housing (Scotland) Act 1987. The effect is that local authorities would have a statutory obligation to house 16 and 17 year-olds who are homeless.
The legal rights of 16 and 17 year-olds in Scotland differ from those in England and Wales, especially where young people have been in local authority care. In Scotland social work departments do not have that statutory duty. Young persons of 16 or 17 years of age have the right to make decisions for themselves. In England, the social services department has a statutory duty to care for young people whereas in Scotland there is no such duty.
The Government recognised this situation in the Housing (Scotland) Act 1986 when 16 to 17 year-olds in Scotland were given, for the first time, the right to apply, and be considered, for local authority housing. The social security reforms of September 1988 removed the right to income support from 16 to 17 year-olds throughout the United Kingdom. Partly as a result of that, together with a general rise in youth homelessness, the supporting specialist emergency stop-over accommodation in Scotland has been heavily over-subscribed and the chances of young people finding suitable permanent accommodation have diminished.
Recent research carried out by a postgraduate student at Heriot-Watt University showed that only 11 out of Scotland's 56 authorities have even a policy of considering 16 to 17 year-olds automatically as vulnerable under the provisions of Part II of the Housing (Scotland) Act. A wide variety of

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organisations, including National Children's Homes, Barnado's and Shelter, contributed to the homeless persons legislation. The Scottish DSS figures show that one-third of all United Kingdom applications by 16 and 17 year-olds for income support under the severe handicap provisions are from Scotland. There are extremely disturbing reports of an increase in prostitution among young people who are selling their bodies for a place to stay. The Minister will be aware that that problem has been raised many times in this Chamber—the cardboard cities, and so on. I hope that he will give us some encouragement and that there is a possibility of at least keeping some of these young people, who may otherwise move away, in Scotland. I beg to move.
Lord Sanderson of Bowden: We are, of course, well aware of concern about 16 and 17 year-olds who become homeless. I do not want to get into too much detail about the steps the Government have taken relating to that group, but I should point out that every 16 or 17 year-old who is neither in full-time education nor in employment is guaranteed a YTS place. That should mean that they all have a right to a certain income. On top of that, 16 and 17 year-olds are entitled to housing benefit to help meet their housing costs. Following concern expressed last year that some young people were falling through the net, the Government made it possible for 16 and 17 year-olds to qualify for income support in certain circumstances.
I recognise that despite these developments some 16 and 17 year-olds will still become homeless and could be at risk of exploitation. In those circumstances I strongly urge local authorities to use their discretion actively to assist those young people to find appropriate accommodation. However, I do not think it is either necessary or desirable to include 16 or 17 year-olds in the category of those with a priority need. Still less do I think it desirable to include families including a 16 or 17 year-old in that category. That would enormously widen the category and would serve, I suggest, to blur the priorities which local authorities might set rather than to clarify them.
However, I can give a crumb of comfort to the noble Lord. As I said earlier, we are currently considering a revision of the code of guidance on the operation of the homelessness legislation. I can assure the Committee that we shall be considering carefully the guidance given in the code to local authorities about young people to ensure that they are dealt with fairly and appropriately. I believe that that is the best way forward. On the basis of the changes we made last year for income support to be available in certain circumstances together with the assurance I have given, I hope that the noble Lord will consider withdrawing the amendment.
Lord Carmichael of Kelvingrove: I am most grateful to the Minister. He said that he personally urged local authorities in this respect and I wondered whether there was not more that the Government could do. He has assisted me by saying that the Government will issue a new code of guidance to local authorities.
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I accept that local authorities have a very big job to do and must have some discretion in this matter. We do not know the history of everyone who is sleeping rough and looking for accommodation, but I hope that the code of guidance will help take some young people off the streets into better accommodation. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Carmichael of Kelvingrove moved Amendment No. 297G: After Clause 44, insert the following new clause:
("Duty of Rent Officers to keep registers. In section 70(2) of the Housing (Scotland) Act 1988 after paragraph (c) there shall be inserted—
"(cc) Rent Officers shall keep and make publicly available a register, in such manner as is prescribed by the Secretary of State, detailing determinations made by them in exercise of functions conferred on them by this section.".").
The noble Lord said: The purpose of this amendment is to require rent officers to provide a register, which is to be available for public inspection, detailing market rents determined by them for the purposes of housing benefit and rent allowance subsidy.
Section 70 of the Housing (Scotland) Act gives the Secretary of State power to require rent officers to carry out functions in connection with housing benefit and rent allowance subsidy. Orders detailing the role of rent officers in this respect have now come into operation. In essence, they require rent officers to determine the market rent for deregulated tenancies', that is. most new tenancies coming into being after 2nd January 1989, in Scotland specifically, where a claim has been made for housing benefit.
The housing benefit regulations prohibit local authorities from paying housing benefit in full where rents are considered to be over-expensive. In looking at this question they can have regard to the market rent figure determined by the rent officer. However, the situation is complicated by the fact that while rent officers determine market rents, that rent does not become the contractual rent payable to the landlord. In other words, whatever the rent officer considers to be a market rent, the tenant, whether or not relying on housing benefit, is duty bound to pay whatever he originally agreed to pay even where that is above the market rent.
In certain parts of some cities that situation can be considerably exploited. The current position is that many low income tenants, when entering into a contract with a landlord, do not know—indeed, they have no way of knowing—what is a reasonable market rent for the area and type of accommodation. Thus, if they have to rely on housing benefit payments to assist in meeting the rent they have no way of knowing whether they will be able to meet their obligation to the landlord.
The Minister will be aware that in my previous incarnation I had great difficulty because in part of the area I represented rents tended to be high and well above the assistance available from the DHSS. I came across that situation many times and it could be tragic. I should like to have the Minister's views;

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perhaps he can give me as much assistance as he has on previous amendments. I beg to move.
7.30 p.m.
Lord Sanderson of Bowden: I am always grateful to the noble Lord. I shall give him as much help as I possibly can in this matter, which I find a little more difficult than others. The amendment seeks to require the rent registration service to maintain a public register of the determinations rent officers make in their function of determining market rents for tenancies referred to them by local authorities in connection with payments of housing benefit.
Under the arrangements the responsibility for determining the amount of housing benefit paid remains fully with the local authority. The determinations made by the rent officer are there to help the local authority make its decision. It would therefore be wrong in our opinion to make public, as the amendment seeks to do, specific information which is being provided on a kind of agency basis to the local authorities. It seems to me it is for local authorities to decide what information to publish about the matters they have taken into account in assessing housing benefit. There is nothing to prevent them doing that. However, I should perhaps explain that in about two-thirds of the cases referred to their, rent officers can more or less immediately accept the rent being charged as being within market levels. That is not to say that these rents are always at the maximum market level. In many cases they are significantly below. Any register of these rents would therefore not provide an indication of the market level of rents in an area which would be of real use.
On these grounds I do not wish to support the noble Lord's amendment. But I would make a further point. Rents, particularly in certain parts of the private rented sector, can fluctuate fairly widely and frequently. Therefore the value of any historical register of only that section of the private rented sector which accommodates people receiving housing benefit would be extremely limited. It could in fact mislead in some circumstances.
I know that the noble Lord has much more experience than I have. But as far as I am aware enormous problems have not been raised since the Act was passed. For the reasons I have given I hope that he will see that there are difficulties in bringing in rent registration and a register of the kind that he would wish.
Lord Carmichael of Kelvingrove: I think I knew the argument that the Minister would put forward before he rose. I wanted some way in which people who were looking for accommodation would know what reasonable rents were in the area. The rent officers and the local authorities, with their much greater powers, can find out what rents are in an area. I know of many people who have secured accommodation and spent money on it only to discover later that they were unable to have the full rent from the DHSS. They were paying rather more, and enough to make life difficult. However, they were not paying sufficient to decide to look for
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another place. I am disappointed that we cannot get even an anonymous register. Perhaps that is an idea for local authorities. They might begin by issuing a broadsheet, which would be helpful.
Lord Sanderson of Bowden: There are ways of obtaining information from many sources similar to the way in which the rent officer obtains information, including advertisements and so on. There is nothing to prevent a local authority publishing whatever it wishes in this connection, as the noble Lord said.
Lord Carmichael of Kelvingrove: I thank the noble Lord for that information. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 297H:
After Clause 44, insert the following new clause:
("Classification of homelessness: whether occupation of accommodation is reasonable. In section 24 of the Housing (Scotland) Act 1987 (definition of homeless persons and persons threatened with homelessness), after subsection (2) there shall be inserted the following subsections—
"(2A) A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy.
(2B) Regard may be had in determining whether it would be reasonable for a person to continue to occupy accommodation, to the general circumstances prevailing in relation to housing in the district of the local housing authority to whom he has applied for accommodation or for assistance in obtaining accommodation."").
The noble Lord said: The purpose of this amendment is to allow local authorities to consider whether it is reasonable in all the circumstances for a person who has accommodation or who is threatened with homelessness to be classed as homeless. The inclusion of this new clause in Part II of the Housing (Scotland) Act 1987 would bring Scottish legislation for the homeless into line with the English and Welsh legislation. A similar clause was added to the Housing Act 1985 by the Housing and Planning Act 1986. This amendment came as a result of the famous Pulhofer judgment which I believe we discussed at considerable length some years ago.
In considering whether a person became homeless intentionally, the current Scottish legislation demands that the question of whether it would have been reasonable for him to continue to occupy the accommodation can be considered. However, the test of intentionality is generally seen as a secondary test in that the first thing that an applicant must prove is that he is homeless or threatened with homelessness.
In other words, persons living in accommodation which it is not reasonable for them to continue to occupy must first make themselves homeless before they can apply for assistance. Thereafter, the local authority to which they apply must consider whether it would have been reasonable for them to continue to live in their previous accommodation.
That is very harsh on people who often have no option but to give up their accommodation with no idea of whether the local authority will be under an obligation to rehouse them. It would appear much more sensible to bring the Scottish legislation into line with that applying to England and Wales. In this way the relevant local authority can make a decision on whether an individual's accommodation is so inadequate for his needs as to merit him being considered homeless. That would avoid the necessity of a person first leaving the current accommodation before the question of reasonableness can be considered by the local authority.
I believe the question of reasonableness in one decision was so appalling that local authorities did not abide by it. In the Pulhofer case the decision was so wide open that many local authorities ignored it. I would like the case of the homeless to be considered further so that they will be given better consideration by local authorities, whether they are homeless or in totally inadequate accommodation. I beg to move.
Lord Sanderson of Bowden: I was genuinely very interested to hear how the noble Lord presented this amendment. I am aware that a similar provision to that set out in the amendment exists in the parallel English legislation. However, Amendment No. 293B, which has been accepted, deals with cases where someone is threatened with violence to their home by someone resident elsewhere. That is a more specific provision than that proposed by this amendment. But I am aware that this amendment potentially affects a wider range of cases than people threatened with violence. Having heard what the noble Lord has said, I should like to consider further how far an amendment along these lines would still be desirable.
I believe that the noble Lord has a good point. I give an undertaking to come back to this matter at a later stage. I wish to consider very carefully what he has said and to look at the various cases that may be affected. The Government's wish would be to bring Scottish legislation into line in this area.
Lord Carmichael of Kelvingrove: I am grateful to the Minister. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Viscount Davidson: I suggest that this would be a convenient moment for the Committee to adjourn. I suggest that we return to the Committee stage at twenty-five minutes before nine o'clock. I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Agricultural Holdings (Amendment) Bill
Brought from the Commons; read a first time, and to be printed.
Entertainments (Increased Penalties) Bill
Brought from the Commons; read a first time, and to be printed.
Horses (Protective Headgear for Young Riders) Bill
Brought from the Commons; read a first time, and to be printed.

Northern Ireland (Emergency Provisions) Act 1978 (Amendment) Order 1990
7.40 p.m.
The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Skelmersdale)The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Skelmersdale) rose to move, That the order laid before the House on 28th March be approved [15th Report from the Joint Committee].
The noble Lord said: My Lords, the order, which proscribes the Irish People's Liberation Organisation, was made by my right honourable friend on 28th March, came into effect on 29th March and is subject to approval within 40 days.
The Irish People's Liberation Organisation is perhaps one of the less well known terrorist organisations outside Northern Ireland. Unlike other terrorist organisations its activities have been confined solely to Northern Ireland and, compared with the Provisional IRA, for example, it is comparatively small and has accounted for only a relatively small portion of terrorist attacks. But it is no less deadly or ruthless for that and it has been responsible for some of the most cruel and callous incidents since 1987 when it came into being as an off-shoot of the Irish National Liberation Army, itself a proscribed organisation.
Much though I find it distasteful to do so, I think I must of necessity remind the House of why the Government take such a serious view of this organisation. It came to prominence in November 1987 when it was responsible for the murder of Mr. George Seawright, a former DUP councillor and a former Member of the Northern Ireland Assembly. It was also responsible for a particularly nasty shooting attack in the bar in the Craven Street Orange Cross Social Club in Belfast in February last year when customers were sprayed with bullets and one man died. In November 1989 it was also responsible for the murder of Mr. Robert Burns and only six weeks ago it murdered Mr. Billy McClure in front of his wife.
It was against the background of these events, which showed beyond any doubt that the IPLO is an organisation which has no compunction about killing, that my right honourable friend made the order which we are considering today. Indeed, since the order came into effect the organisation has continued to be active. As the House will know, members of the organisation were intercepted recently by the security forces in the garden of a

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police reservist's home, on what was later described publicly as "active service". One of their number was killed; weapons were recovered from the scene.
It is abundantly clear that any organisation which has such a total disregard for human life can have no place in a civilised society. It must, and will, be subject to the full rigour of the law. As a result of this order it is an offence to be a member of the IPLO, where activities take place after the moment of prescription. It is also an offence to solicit or invite financial or other support for the organisation or knowingly to make or receive any financial contributions for it. It is also an offence to solicit or invite any person to become a member of the organisation or to assist in the holding of a meeting to support or further its activities. By the same token, as the broadcasting notice issued by my right honourable friend the Home Secretary prohibits the direct broadcasting of any representative of a proscribed organisation and certain other specified organisations the IPLO is now so prohibited.
This order is therefore a clear and unequivocal statement to the IPLO and to all who regard the use of violence, of whatever intensity, as the only way to bring about change in Northern Ireland that such methods are wholly unacceptable. Moreover, they are futile. The future of Northern Ireland lies not in the hands of those whose aim is to destroy life and make people's existence a misery but with those who are seeking to bring people together and to create better prospects for themselves, their families and future generations. The Government are working unremittingly to these ends. We regard the order as a fully justified response to the activities of the IPLO. I therefore commend it unreservedly to the House. I beg to move.
Moved, That the order laid before the House on 28th March be approved [15th Report from the Joint Committee) .—{Lord Skelmersdale.]
7.45 p.m.
Lord Prys-Davies: My Lords, I thank the noble Lord for explaining the order and for giving the House some information about the IPLO. He also reminded us of the statutory consequences of the act of proscription. A heavy penalty is imposed on a person who belongs or professes to belong to the organisation; on a person soliciting support, financial or otherwise, for the organisation; or on a person who carries out its directions. As I understand it, the order adds to the list of the organisations proscribed under the 1978 Act. There are now eight such organisations.
I fully support the order on behalf of noble Lords on these Benches, but it is right that I should mention that some fair-minded people have always expressed and continue to express reservations about the general principle of proscription. They believe that it is an inadequate means of dealing with the problem. They would seek—I emphasise the word "seek"—to place even greater stress on bringing to justice those who actively conspire to use violence in pursuit of political ends. They fear that the organisation might be driven underground and they doubt whether proscription achieves a great deal in practical terms,
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pointing out that the IRA and the six other organisations were proscribed in 1978. The IRA is still flourishing.
Again it is argued that proscription might even attract some measure of sympathy for the organisation that is proscribed unless the power is exercised with great care and after weighing up all the factors. On the other hand, proscription properly exercised, after weighing up all the factors, is a clear public expression of condemnation of the use of violence for political ends. Moreover—and this is possibly more important—it may act as a deterrent to members or potential members and to supporters or potential supporters of a proscribed organisation. The deterrent will obviously work through in a way which cannot be measured with any accuracy.
We approve the order. Its introduction gives us an opportunity once again to join the Government to condemn violence in the Province. In the proper discharge of my duty I should like to ask the noble Lord two questions. I am grateful for the information he has given about the IPLO. Can he go a little further and tell the House how many members the organisation has? Are the Government able to give an estimate of its membership? We wish to know, if the information is available, how many of its known members or former members have been found guilty of scheduled offences. With those two questions, we support the order.
Lord Skelmersdale: My Lords, I am extremely grateful to the noble Lord for his attitude to and reception of the order. In answering his general point I would say in return that by creating offences one stops public demonstrations and marches on behalf of organisations which use these despicable methods to achieve their objectives. Rather than giving them publicity, one removes from them by proscription the possibility of publicity.
In my opening speech I described this matter as distasteful. So it is. I am therefore especially grateful to the noble Lord, who spoke so lucidly and thoughtfully on this question. It is often difficult for us to appreciate the fact that there are people who are prepared to murder and maim other human beings simply because their views are different. The Irish People's Liberation Organisation consists of such people.
I welcome the noble Lord's condemnation of the organisation. I should much prefer it—as, indeed, would he—if the order before us this evening were not necessary. However, this Government will not be deflected from the fight against terrorism. Today's order is part of that battle, which we shall surely win by the tripartite advances of the security forces, improved economic and social conditions and efforts to achieve political progress.
In answer to the noble Lord's questions I am able to tell him that, as I said in my opening speech, the Irish People's Liberation Organisation is a terrorist organisation which broke away from the Irish National Liberation Army in early 1987. INLA is already a proscribed organisation. I am afraid that by the very nature of terrorism it is impossible to estimate the membership of any particular

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organisation. I do not think that the noble Lord will be very surprised at that response.
In conclusion, I believe that I have amply justified my right honourable friend's criteria in proscribing this despicable organisation. Therefore, I ask noble Lords to give their approval to this Motion. I commend the order to the House.
On Question, Motion agreed to.
Viscount Long: My Lords, I beg to move that the House do now adjourn during pleasure until 8.35 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.52 to 8.35 p. m.]

Law Reform (Miscellaneous Provisions) (Scotland) Bill [H.L.]
House again in Committee.
[Amendment No. 298 not moved.]
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 299:
After Clause 44, insert the following new clause:
("Orders for financial provision. The Family Law (Scotland) Act 1985 shall be amended as follows—

(a) in section 8(1)(a) after the word "for" there shall be inserted "either or both";

(b) in section 14(2) at end there shall be inserted—

"( ) an order requiring either party to the marriage to execute any document required to give effect to an order for financial provision and on the failure of any party to execute any such document to require the Clerk of Court to execute such document." ").
The noble and learned Lord said: I shall mention also Amendments Nos. 302UB, 302ZB and 303A. The first part of the amendment that is in my name is covered by Amendment No. 302UB. It has the same effect, and no doubt the drafters of it are much better at drafting then I shall ever be. All one can say is that they have managed to say the same thing in rather more words than I used in my amendment, but otherwise it achieves the same effect. I am grateful to the noble and learned Lord the Lord Advocate for taking up the amendment and putting it into what the draftsmen consider to be the proper words. I thank him for that.
Paragraph (b) of Amendment No. 299 is not covered. If the court, for example, says that a husband is to transfer to a wife, or a wife is to transfer to a husband, shares in a certain company and the party ordered to make the transfer refuses to sign the transfer certificate, there are obvious difficulties. It is an attempt to avoid those difficulties that it is proposed to insert this amendment to Section 14 of the Family Law (Scotland) Act. I hope that the noble and learned Lord is prepared to reconsider that matter, because it sometimes causes problems if someone obstinately refuses to execute a transfer, or whatever, in fulfilment of the order of
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the court. Something such as this amendment is necessary and would be effective. I beg to move.
Lord Fraser of Carmyllie: In speaking to this amendment I should like to refer also to Amendments Nos. 302UB, 302ZB and 303A, which are in my name. The amendment of the noble and learned Lord, Lord Morton of Shuna, relates to two separate matters in the Family Law (Scotland) Act 1985. The first part of his amendment clarifies an important point in Section 8(1)(a) of the 1985 Act which has caused difficulty in the courts. The amendment provides that in making orders by way of financial provision for the applicant, the court may in appropriate circumstances make a property transfer order and award a capital sum. The Government accept the principle of this part of the noble and learned Lord's amendment and I trust he will accept that government Amendment No. 302UB makes provision for this. Amendment No. 302ZB is consequential. Government Amendment No. 303A seeks to ensure that new provisions are implemented as soon as possible.
Paragraph (b) of the noble Lord's amendment relates to a different part of the 1985 Act which is concerned with the making of incidental orders. The noble and learned Lord's amendment seeks to add a further category of incidental order to those listed at Section 14(2). This would be a power for the court to require either party to the marriage to execute a document required to give effect to an order for financial provision and on the failure of any party to execute such a document to require the clerk of court to execute the document.
It is not that I disagree with the noble and learned Lord; it is that I do not believe that the courts require the additional power, having regard to the range of powers already available. Section 5A of the Sheriff Courts (Scotland) Act 1907 applies where,
"(a) an action relating to heritable property is before the sheriff; or (b) it appears to the sheriff that an Order under this section is necessary to implement a decree of the sheriff relating to heritable property".
The section gives the sheriff power to order the clerk of court to execute the deed which then has effect as if executed by the person who should have executed it. It is not however the only applicable provision. Sections 8(2)(c) and 14(2)(k) of the 1985 Act read together give the court dealing with an application for financial provision on divorce a sweeping power to make,
"any ancillary Order which is expedient to give effect to any Order made under Section 8(2) of the Act".
This provision applies whether the action is in the Court of Session or the sheriff court. It does not provide expressly that a disposition executed by the clerk of court on behalf of the recalcitrant spouse has effect as if granted by the spouse but that has never been thought necessary in the case of dispositions executed in this way by virtue of the Court of Session's common law powers.
To sum up, the 1985 Act gives the court powers in this area which, in the case of the sheriff court, supplements the power now available under Section 5A and in the Court of Session supplements the power available at common law.

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I am aware that there has been some academic controversy in Scotland with regard to the latter point. I hope that with the assurance and the explanation I have given I have convinced the noble and learned Lord that the Government accept the principle of paragraph (a) of the amendment and that the matters to which paragraph (b) relate appear to be covered by other provisions. I trust that the noble and learned Lord will feel able to withdraw his amendment.
Lord Morton of Shuna: Yet again I thank the noble and learned Lord for accepting at least the principle that I have put forward. That is greatly appreciated. I shall certainly read what he said about paragraph (b) of my amendment. I do not promise that I shall not—if a double negative is permissible—return to the matter. I shall read what has been said and I may return to it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
8.45 p.m.
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 299A:
After Clause 44, insert the following new clause: ("Determination of market rent.. The following section is inserted after section 70 of the Housing (Scotland) Act 1988—
"70A. Where a rent officer has made a determination of a market rent in exercise of functions conferred by section 70 of this Act, that determination shall have effect as if it were a determination of rent by a rent assessment committee under section 25 (for assured tenancies) or section 35 (for short assured tenancies) except that the determination shall have effect from the date of reference to the rent officer.".).
The noble Lord said: The purpose of this proposed amendment to the Housing Act 1988 is to give low income tenants—that is, only those eligible for housing benefit—a method of reducing their obligation to pay rent which is significantly higher than the market rent which the landlord might reasonably be expected to obtain under the tenancy. If the amendment were accepted, the landlord would continue to be entitled to receive the market rent for the tenancy.
The proposal is made by Shelter in Scotland which has vast experience of working with young people in property matters. According to its findings, the market in houses for young people is drying up. According to the survey carried out by Edinburgh District Council's department of environmental health, 40 per cent. of landlords previously providing accommodation for predominantly young, single people have left the market since the new powers of the rent officer to restrict the level at which the housing benefit is paid was introduced.
At the other end of the scale landlords have left the market because they are not receiving what they would like from young people because of the restricted rent. They appear to have switched their emphasis in response to the setting of the market at the rent officer's determination. Instead of housing young, single people as the private rented market has traditionally done, landlords are refusing to let to this group and are instead letting to families and other categories of people. Landlords know that
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these people will receive benefits to cover the entire rent. That is because the housing benefit regulations prohibit the local authority from restricting benefit where the claimant falls within "vulnerable categories" unless they can show that cheaper accommodation is available.
In such instances local authorities must pay the contractual rent. Although the lose subsidy list is above the rent officer's determination, there is evidence according to Shelter of landlords abusing the system and taking advantage of the market specifically created by benefit regulations. Such distortions of the market can only be remedied if the reasonable market rent determined by the rent officer becomes the contractual rent. I beg to move.
Lord Sanderson of Bowden: I believe that this amendment aims to introduce a form of rent control but only for those tenancies which are let to people claiming housing benefit. Far from helping those people to obtain and retain accommodation, the imposition of rent control would be likely to lead to a total drying up of the supply of rented housing for benefit claimants. That in turn would lead to increased overcrowding and homelessness. I am sure that is not what the noble Lord desires.
One of the purposes of the Government's reforms of the private rented sector and the involvement of the rent officer in determining market rents for housing benefit subsidy purposes was to try to get away from the division of the private rented sector into a "paying" and a "benefit" sector. By seeking to ensure that landlords could command broadly the same rent, whether it was paid from a tenant's own pocket or through housing benefit, the intention was to remove any financial incentive a landlord might have had to favour one kind of tenant over another. There can be little doubt that under previous arrangements some landlords extracted excessive amounts of money from the housing benefit system in return for providing very poor quality accommodation.
The introduction of a statutory control over the rents charged to benefit claimants would create a perception of different treatment for benefit claimants as opposed to other tenants. This would undoubtedly lead landlords to discriminate against benefit claimants, producing, as I have said, precisely the opposite effect to the one which I suspect the proposers of the amendment intended.
I was interested to hear what the noble Lord said about difficulties in Edinburgh. I believe that this has been drawn to the department's attention. I should be grateful, if the noble Lord has evidence of such difficulties in any particular area, if he would let me know so that I can pass the details to the department. However, I do not believe that the amendment is the way to resolve the problem.
Lord Macaulay of Bragar: I am grateful to the noble Lord for that explanation of a delicate area of public life dealing with young people and trying to provide them with accommodation at reasonable rents. We all know that in the past there was excessive exploitation of that sector of the community. This is not a political issue; it is a matter

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of finding the right formula to give young people a fair deal in the rising property markets.
I and those who propose the amendment will take note of the noble Lord's invitation. I am sure they will be in touch with him either directly or through me when I shall pass the information on. I am pleased to know that the Government are keeping the matter under review. Under the circumstances I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 299B:
After Clause 44, insert the following new clause:
("Determination of market rent. The following paragraph is added at the end of section 24(3) of the Housing (Scotland) Act 1987—
"(e) by virtue of the colour, race, nationality (including citizenship) or ethnic or national origin of him or a member of his family it is probable that occupation of it will lead to violence from some other person".").
The noble Lord said: This is another amendment to the Housing (Scotland) Act 1987 which is proposed on behalf of the Scottish Homeless Group. It is designed to enable people subject to racial attacks and harassment to apply to local authorities as being homeless and thus requiring to be rehoused.
This is not an issue in many local authority areas. But where harassment and attacks occur, the evidence suggests that they are increasing. It is important that there should be mechanisms by which people and their families can seek effective help from the local authorities to escape such violent and threatening situations. As in the similar case of women who have been subjected to violence, such a measure would help to prevent local authorities from allocating houses to people in areas where it is known that there is a high level of racial incidents.
The Scottish Homeless Group has given the example of an Asian pensioner who was offered a flat by a district council in an area which was renowned for racial harassment problems. The woman made several visits to the new flat before taking up occupancy. On each occasion she was subjected to threats and harassment, including being spat at and verbal taunts. As a result of those incidents not unnaturally she did not feel able to take the occupancy of the flat and went back to live in overcrowded conditions with her family. As a consequence the local authority officer classified her as being intentionally homeless, an unfortunate consequence in this delicate area of public life. I beg to move.
Lord Sanderson of Bowden: I recognise the concern that underlies the amendment. We must all be concerned when citizens suffer harassment or violence because of their race, and the Government give their full support to effective measures to prevent harassment and to deal with those who perpetrate such unacceptable acts.
However, I am not convinced that the amendment proposed by the noble Lord, Lord Macaulay, is the right way to deal with the undoubted problems that
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arise. No one would seek to deny that racial harassment occurs in Scotland. I believe that the first remedy that should be pursued when racial harassment occurs is through the criminal law. The police should be informed, and the perpetrators should be charged where appropriate.
I entirely agree that it may be appropriate in some cases to offer rehousing to a victim of racial harassment. However, I do not believe that the way to achieve that is to classify such victims as homeless. Instead, I would expect local authorities to look favourably on requests for transfers in such cases. Indeed, I know that many local authorities have dealt sensitively with such situations.
I do not believe that the noble Lord should press the amendment in view of the other remedies available which are, I believe, more effective in countering the unacceptable activities of a racially intolerant minority.
This again falls into the category of those issues which we are looking at in the revised code of practice. In dealing with those who are harassed and those who are the harassers it may be that we have to look for a contractual remedy in terms of the houses they occupy. This is not a party issue but we do not believe that the amendment is the way to stop something which we want to stamp out.
Lord Macaulay of Bragar: I am grateful to the Minister for that explanation of the Government's position. One of the major difficulties is that fear lies at the root of the problem. It is not always easy for someone who has been picked upon because of his colour to go to the police without further consequences should a person be convicted as a result of his doing so. It seems a never-ending problem to which we should all like to see a solution.
It has been worthwhile putting the amendment before the Committee in order to hear what the Minister had to say. No doubt his reply will be noted with interest by the local authorities which have to deal with this very thorny problem. I am also pleased to note that the issue will be under review in the revised code of practice. In view of the explanation that has been given I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 299C:
After Clause 44, insert the following new clauses:
"Residence right for personal carer.
In Schedule 1A of the Rent (Scotland) Act 1984 there shall be inserted a new paragraph 3A:
"3A.—(1) Where paragraph 2 or paragraph 3 above do not apply but a person was residing with him in the dwelling house and providing personal care:

(a) continously for the period commencing six months before the date of coming into force of section 46 of the Housing (Scotland) Act 1988 and ending on the tenant's death (where the person was so residing on the said date); or

(b) at the time of and for the period of two years immediately before the tenant's death, then, after the tenant's death,

that person or if there is more than one such person, such one of them as may be decided by agreement, or in default of agreement by the sheriff, shall

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be entitled to a statutory assured tenancy of the dwelling house by succession.
(2) In this paragraph "personal care" includes the provision of appropriate help with physical and social needs." ").
The noble Lord said: It may be for the convenience of the Committee if Amendments Nos. 299C and 299D are taken together. The sponsor of the amendments is the Scottish Council for the Single Homeless. The amendments are designed to give carers who are not members of a tenant's family the right to succeed to the tenancy on the death of the original tenant. It would further extend that right to carers when one succession had already taken place, namely where a carer has been looking after two parents and one of them has died and there is subsequently a second succession.
The justification for the amendments is that community care is largely undertaken by unpaid informal carers. Very often the carer is the spouse, partner or another member of the family. There are also a considerable proportion of carers who are very good friends or companions of the person in need of care. The National Health Service and Community Care Bill and the associated White Paper Caring for People recognise the enormous sacrifice that those carers make. Many leave secure accommodation to live with a friend who needs support or care.
The Housing (Scotland) Act 1988 introduced new forms of tenancy agreements including assured and short assured tenancies where the right of security on the tenant's death was recognised as important for a spouse or co-habitee or for another member of the family who had lived in the house for up to two years. At that time it was argued that those rights should be extended to carers who are not related to the tenant. The amendments, although they appear complex, are designed to ensure that that will happen. They will give people who are not relatives the encouragement to continue taking care of people who need attention. I beg to move.
The Earl of Balfour: I am concerned by the amendment. I recognise what has been said in its favour and I sympathise. However, the problem is that a private landlord might give a farmworker a house at a very low rent over some considerable time. As the tenant becomes older he or she may require care and attention. Speaking for my own part, I should not like to have a house tied up long after the person to whom I had let it had died while the person who had taken care of the tenant continued the tenancy.
I believe that the provision written into the Housing (Scotland) Act 1988, which is where Schedule 1A comes from, was extremely well worded. However, I should not like to see it extended as proposed by these two amendments.
Lord Sanderson of Bowden: We have heard both sides of the argument. Having taken the original measure through your Lordships' House I am well aware of the debates which took place at that time and how I had to tread a tightrope.
I share the sentiments expressed by the noble Lord regarding the work done by carers who look after
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people living in the community. We owe them an enormous debt of gratitude.
Most carers are, of course, related to the people they look after. Close relatives living in the house generally have a right to succeed to a tenancy when the regulated tenant dies. Therefore, the only people to whom the proposed complex new provisions would apply in practice would be unrelated carers, as the noble Lord said. Incidentally, I am interested to hear that he said that a considerable proportion are non-family carers. That is not my impression nor that of my department. I simply cannot believe that there are more than a handful of such people currently caring for regulated tenants who have no living-in relative. Neither have any cases been brought to my department's attention in which the lack of a statutory right of succession for such a carer has led to difficulty. I do not see any point in cluttering up the law with provisions which have effect only in a very limited area, if at all.
I must also point out to the Committee that the proposed amendments include particular provisions which it is hard to understand. For example the proposed paragraph 3A(l)(a) inserted by Amendment No. 299C appears to reproduce a transitional provision necessary when the Housing (Scotland) Act 1988 was enacted, but of no practical effect now.
Although I repeat my appreciation of the work done by carers, I believe that the amendments are unnecessary. I have noted what my noble friend Lord Balfour said in this regard. It is one thing to draw a line so that the maximum number of tenancies can be arranged and the maximum amount of housing used, but there is another side to the argument which my noble friend has put to the Committee so well. I invite the noble Lord to withdraw the amendment.
9 p.m.
Baroness Seear: Before the noble Lord sits down, perhaps I may speak as president of the carers' national association. I do not have the figures as I was not aware that this subject was coming up, but the Minister may underrate the extent to which unrelated people do the caring. It is not at all uncommon for two women who are friends to live together and do the caring one for the other, but there is another important group. So many women, for one reason or another, outlive their husbands. You have only to look at the figures to see how many widows there are in the older age groups. We tend to go on and on in my sex.
They do not necessarily have sons or daughters living near in modern society, and someone who is not related may well move in and make it possible for them to stay on in their own home. I ask the noble Lord to think about the issue again. There may be a case for a time-limit. It is one thing if someone has moved in within the past six months, but someone who gave up her own home and moved in five or six years ago, if not more, is surely in a special position. The amendment may not meet the point, but there is a case here.
Lord Sanderson of Bowden: I should like more evidence that there is a problem here. I take the comments of the noble Baroness, Lady Seear, seriously, and I understand the position. In those cases, the person who moves in usually has somewhere where she has lived. I should have thought that, in view of the law, she would be careful to realise what her rights in respect of the house into which she moves would be should the person whom she goes to help eventually die. I am aware of the humane point that one must consider those situations.
I am also aware of the difficulties of extending the bracket of people whom one might call close relatives as defined in the Housing (Scotland) Act 1987. There has been no difficulty until now in the implementation of the Housing (Scotland) Act 1988, but—this is another point which may help the noble Baroness—it is always possible for the carer who may be left to arrange to take over the tenancy. We are talking about an assured tenancy right. Therefore, the difference between what a person might get as a result of the amendment being accepted and what the noble Baroness is seeking is not all that great.
Lord Macaulay of Bragar: I am obliged to the Minister for that explanation and for the other contributions made to the debate. If I used the words "considerable number", that was a fault on my part. It is recognised that there is a problem with some people and I should not like the Minister to think that Scotland is cluttered up with people waiting for the amendment to go through the Committee.
I noted with interest what the noble Lord said. One of the problems with individuals may be that, by the time it comes to make the decision to try to have the tenancy assigned, it is sometimes too late. People tend to leave those things too late, particularly if they are more concerned with the care of the person than with their own future. I am obliged for the explanation given and, in the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 299D not moved.]
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 299DA:
After Clause 44, insert the following new clause:
("Abolition of domestic warrant sales.
Sections 16 to 45 of the Debtors (Scotland) Act 1987 are substituted by the following sections—
"Abolition of domestic warrant sales.
16.—(1) Any enactment or rule of law permitting the poinding of and sale by warrant of domestic goods shall no longer have effect.
(2) The foregoing provision shall come into force on the date of passing of this Act.
Repeals.
17.—(1) The enactments specified in Schedule 1 to this Act shall have effect subject to the amendments specified in that Schedule.
(2) The enactments specified in Schedule 2 to this Act are hereby repealed to the extent specified in the third column of that Schedule." ").
The noble Lord said: In moving this amendment, I wish to speak also to Amendment No. 299DB which is consequential upon it.
The amendment seeks to abolish the use of warrant sales of domestic goods in Scotland and to remove what is seen by some people as the social evil of warrant sales in the exercise of diligence to recover money, often from people who have no money to speak of and few possessions. Basically, the amendment is proposed so that, particularly in relation to the recovery of unpaid poll tax or community charge—call it what you like—the local authority should not be forced into the use of the measure as a means of recovery.
Warrant sales and the stigma attached to them and the whole degrading process were considerably watered down in the passing of the Debtors (Scotland) Act 1987. There was long discussion about how far that should go. Reading the debates, it looks as if the government of the day were close to doing away with warrant sales, but they came round and the then Lord Advocate stated that warrant sales must be seen as the final stage in what is often a protracted process of debt recovery. The proper measure of the efficiency of the diligence is not its shield in the relatively few sales which are held, but the extent to which the potential threat of warrant sale serves to elicit payment in the vast majority of cases in which settlement is reached without recourse to sale.
That is certainly not what is happening in the public domain with regard to recovery of arrears of poll tax. It is a pity that, when considering the Debtors (Scotland) Act 1987, the Government did not have the courage to take the final step and remove that blot from the landscape.
When one applies the provisions of Section 16 and Schedule 5, there is little left which can be recovered and attempts to recover arrears of any substance will, 99 times out of 100, be a non-viable exercise as a means of recovery of that debt. I shall not go through the list of all the various exclusions from poindable goods in the Act, but it is extensive and leaves little out. What are left are things such as record players. I know of one person who refuses to pay his poll tax, although he can well afford to pay it. When the sheriff officer walked in, he went to his video or record set, which was worth about £1,000, slapped a price of £157 on it and walked out of the house. The arrears to be recovered were about £400.
There is a distinction in that area between people who will not pay and can pay and people who cannot pay. They are being persuaded on a political basis not to meet the poll tax or community charge bill. However, moving away from the poll tax issue for a moment, the whole procedure is frightening to the individual who is doing his best to survive and is socially oppressive as it strikes at vulnerable people who live in fear of the legal process at its best and warrant sales as an example of that process at its worst.
Warrant sales, if executed, achieve little in the way of financial return and, by removing the remaining articles through the sale, merely create another gap and problems for the individuals concerned who

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may even resort to crime to fill in the gap in the house as a result of the removal of poindable items.
The amendment is one of principle and not of detail. The principle is either acceptable to the Government or it is not.
It is important to distinguish between poll tax arrears and an ordinary debt. The view has been expressed that the small trader would be in difficulty in recovering, if he can, at least a proportion of a debt. However, one must distinguish the trading debt which is not paid at the end of the day. That is a voluntary commercial transaction between two consenting parties. The seller makes a decision to grant credit to the buyer and thereby creates a debt. He takes the risk of non-recovery but the risk is voluntarily undertaken. No one volunteers to pay a poll tax, or indeed any other tax, if he can help it.
In Scotland there are thousands of people who have had the poll tax imposed upon them. It is a debt unilaterally created against their resources. It is a major problem for people. It is also unfortunate that warrant sales are used because they have politicised the whole issue of the tax and its recovery. One can read in the newspapers that a warrant sale is about to be held by a local authority in an honest endeavour to apply the law, and the next moment there is rent-a-mob at the door and the sheriff officer is sent away with his tail between his legs, having achieved nothing. A cult is developing. People are being encouraged to be martyrs to the system when a better way could be found.
I noticed this week in the newspaper that one authority has apparently given up the ghost. It has £4 million of arrears. It has sensibly decided to conciliate; they will discuss it with people who have not paid and bring them into the scheme. Unfortunately—it is one of the reasons why this amendment has been tabled—local authorities do not have a right to give relief on the community charge on grounds of hardship. The local authorities cannot exercise discretion. A view has been taken that everyone has to pay something. Many local authorities have been advised at a high level of legal advice that they have no alternative but to enter into this non-viable exercise, not in tens or twenties but in thousands. I understand that in Strathclyde not long ago there were 250,000 warrants issued. The councillors who have to make those decisions are being put in an impossible position. They are also acting out of fear that if they do not go through this ridiculous process of exercising warrant sales, they may be surcharged under Sections 102 and 104 of the Local Government (Scotland) Act 1973.
So there are real difficulties not only for the individuals concerned but also for the authorities. It may be an idea to abolish that aspect of debt recovery, certainly in relation to the recovery of the community charge, and move toward peace in the community rather than have the acrimony and distress which for one reason or another have been caused all round. I beg to move.
The Earl of Balfour: I feel that there are one or two other matters to be taken into consideration. I know that the Debtors (Scotland) Act 1987 is long and complicated. However, I am thinking of the case
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where a person refuses to do something. For instance, he might be well-off but refuse to pay his rent; or he might be instructed under the planning regulations to remove a structure that he has built and refuse to do so. As a last resort the local authority can carry out the work and charge him. But if we virtually scrap the whole of Part II of the Debtors (Scotland) Act—which would be the effect of leaving out Sections 16 to 45—I believe that the local authority might be in a very much worse position to claim any money against a person who may be relatively well-off but simply refuses to pay or starts to do something which is totally against the public interest.
It is in such cases that I feel that this amendment may result in the situation being very much more to the detriment of the local authority rather than necessarily in cases relating to the community charge.
Lord Mackie of Benshie: This amendment poses a problem for us. I noticed that the noble Lord, Lord Macaulay, was not quite sure where he stood with regard to people who for political reasons refuse to pay. I perfectly understood his point about the very poor who may be left only with the necessary household goods for survival. It is a primitive form of debt collection. But we are all agreed in the sensible political parties in Scotland, such as the Liberal Democrats and sections of the Labour Party, that the illegality which has been advocated by the SNP must be wrong. Therefore I suppose that warrant sales could have some point in a case like that, although there might be better methods of collecting the money.
So we are in this dilemma. We consider it a primitive form of debt collection. We consider that it should not be used, and it is used with discretion against the very poor. But if people are breaking the law, it poses a problem which has to be dealt with in some way. I am sorry to be so wet about it, but that is the situation.
Baroness Carnegy of Lour: I agree with the noble Lord that this is a very delicate and difficult matter. I remember so well when we were discussing the Debtors (Scotland) Act and looking at how many household objects would remain to the person if poinding were carried out to the full. I agree with the noble Lord that it is primitive, but what one must bear in mind is how it feels to the person next door who has paid up. I fell that primitive though it is, at the moment it is very difficult to think of how one replaces this way of proceeding. I have met it personally a few times and I should very much like to find another way.
I understand that debt collection in England can end up with imprisonment, which I think it cannot in Scotland, and ours is a very much preferable way. The noble Lords, Lord Macaulay and Lord Mackie, were quite right to talk about this in relation to people being advised for other people's political reasons not to pay. But the onus there is on the people who are doing the advising. Since they are doing that, I do not think one should necessarily remove a sanction because of the people who are living next door and who have paid. I know some

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of those, as I am sure does the noble Lord, who see justice in it. I am extremely glad that the matter has been raised, because it is important.
At the moment simply to repeal that part of our debt collection law would be seen as very unjust by quite a lot of law-abiding people who perhaps have difficulty in paying up. So I should not like to see the amendment accepted by the Government, but I see the point of why it has been raised.
9.15 p.m.
Lord Fraser of Carmyllie: In dealing with this amendment we are going over well-trodden ground which to some of us in this House and in another place caused a great deal of concern, as my noble friend Lady Carnegy indicated. But I hope that I may deal with the matter briefly in this way.
We started with the detailed work by the independent Scottish Law Commission in the late 1970s and early 1980s. It reported with recommendations for reform in 1985. On receipt of that report there was further public consultation undertaken by the Government and the result was that the Bill was promoted by my predecessor, my noble and learned friend Lord Cameron of Lochbroom, in this House. That eventually resulted in the Debtors (Scotland) Act 1987 which came into operation in 1988.
There were substantial reforms, as the noble Lord, Lord Macaulay, has graciously acknowledged, in the 1987 Act and those were designed to remove what were the most resented aspects of the procedures of poindings and warrant sales. The 1987 reforms were not simply restricted to domestic debt cases. Among the major reforms was the ending of the public advertisement of sales giving details of the debtor's name and address. Those of us who live in Scotland know that there was for many years a long campaign against that arrangement in Scotland. Also sales can now only take place in the debtor's home if he and all the other occupiers consent in writing. There is furthermore a very substantial list of goods exempt from poinding, which includes all the goods reasonably required by the debtor or a member of his household.
The noble Lord said that the purpose of this amendment was one of principle, not detail. But if this amendment were carried, the abolition of warrant sales of all domestic goods might have a rather curious effect. If, for example, someone had a warehouse full of washing machines and had lots of debts to all sorts of people, if this amendment were carried it would not be possible to poind or sell those washing machines, although they were not in the homes of any individuals.
It is not often that I disagree with my noble friend Lady Carnegy but she described the system as primitive and I have to respond that in every sophisticated legal system in the world there is ultimately an arrangement for enforcement against moveable goods where there are outstanding debts.
As the Scottish Law Commission itself reported:
"On the contrary, enforcement against moveable goods is permitted in every country of whose practice we are aware.
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Indeed, in England and Wales, execution against goods, including household goods in debtors' dwellings, is by far the most commonly used method of enforcing judgment debts".
During the course of a Bill in another place recently, Mr. Eric Heffer—who is not known as a great supporter of the present Government—indicated that broadly the same system operates in England and Wales. I therefore think that we should be careful in suggesting that we have in Scotland an arrangement which is in any sense unique.
In one respect it has a feature that is probably superior to that of England and Wales, to which the noble Lord has adverted, as has the noble Baroness, Lady Carnegy: there is now no right of civil imprisonment in the event of non-payment of a debt. The warrant sale procedure is intended to be the ultimate sanction. It is only one of a range of remedies available to creditors to recover their debts. The Scottish Law Commission concluded, and the Government agreed, that abolishing warrant sales was not right.
There is a completely different aspect which I regret is sometimes not fully appreciated in all its significance. One of the adverse effects of the abolition of warrant sales would not be to deprive someone like the noble Lord, Lord Macaulay, of his right to credit if he needs it. To cut off this ultimate sanction for payment of debts would restrict the availability of credit to the poorest members of society. What concerns me—and I am sure that it would concern the noble Lord, with his knowledge of the courts—is that the tallymen of the West of Scotland engage in the provision of credit at quite extortionate rates. It is a matter that is utterly reprehensible and ought to be avoided at all possible costs. In those circumstances I feel very strongly that it is right that we should ensure that credit is available to the worst off in our society without them having to resort to the tallyman.
There are a number of safeguards for debtors in the 1987 Act. The example that the noble Lord gave would have been covered by the provisions in Section 23 of the 1987 Act because the debtor now has opportunities to apply to the court to have his goods released or to have the sale called off, for example on the ground that it would be unduly harsh for the sale to go ahead.
I believe that the noble Lord has brought the issue up as a safety valve at a difficult time with the payment of the community charge. I also consider it extremely responsible of him to indicate his distaste for those who advocate that the law should not be observed, however much the tax might be disliked. I entirely share what I understand to be his sentiment that it is disgraceful that a rent-a-mob is going around trying to cause difficulty where efforts are being made to enforce debts that are due.
This has been a useful debate and there have been contributions to indicate the concern of the noble Earl, Lord Balfour, the noble Lord, Lord Mackie of Benshie, and the noble Baroness, Lady Carnegy. Nonetheless, I hope that, now we have run round the course again as we did in 1987 and have once more considered the matter, it will be appreciated that it is in the best interests not only of those who

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are well off but of those who are worst off that the arrangements in place in the 1987 Act should be maintained.
Lord Macaulay of Bragar: I am grateful to the Minister for that explanation, and for the other contributions made in the short debate on this important matter. I am not entirely convinced by the argument presented on behalf of the Government. However, the observations made have been extremely interesting in relation to the Scottish problem.
Where people have money and will not pay, there are other means of extracting the money from them. Two well known people in Scotland have already had that thrust upon them by having their bank account frozen. Unfortunately, people at the poor end of the scale do not have bank accounts. They exist from day to day hoping that tomorrow will bring something better. Those unfortunate people are being sucked into a political "yahoo" brigade, thinking that they are doing themselves a favour. In fact all that they are doing is adding debt upon debt and making their problems even worse.
The noble Lord, Lord Mackie, made reference to the Scottish Nationalist Party's role in this matter. I have not seen a poor Scottish Nationalist advocating this and the people who advocate it appear to have enough money to pay the bill if they wished to do so.
The whole matter is of great social importance. The example given by the noble and learned Lord the Lord Advocate about the hangar full of washing machines could be said to be argumentum absurdam. It may not be a domestic debt. One could certainly argue about that. It would be difficult to say that 200 washing machines could be regarded as reasonable on a domestic basis.
This issue will never go away. I recall chairing a consumer council committee which dealt with that aspect of due diligence. The two sides of the argument never met and we abandoned it in despair. There were various acrimonious exchanges between the sheriff officers side, who wanted warrant sales as a last resort, and the more academically inclined, who wanted them abandoned. It was interesting to hear the Government's explanation and I am indebted to the noble and learned Lord for that explanation. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 299DB not moved.]
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 299DC:
After Clause 44, insert the following new clause:
("Facts not disputed at trial
After section 26 of the Criminal Justice (Scotland) Act 1980 there shall be inserted the following section—
"26A.—(1) In any proceedings on indictment at the instance of Her Majesty's Advocate the prosecutor may serve with the indictment a "statement of facts not in dispute" and such statement shall be in the form prescribed by an Act of Adjournal under the Criminal Procedure (Scotland) Act 1975 and shall be signed by the Lord Advocate or one of his deputies, or (in the Sheriff Court) by a Procurator Fiscal, and such statement may contain one or more simple but separate
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and discrete assertions as to fact, including, without prejudice to the foregoing generality, assertions that on any specified occasion—

(a) an accused or any other person whose name appears on the list of witnesses lodged with the Clerk of the Court before which the trial is to take place was in a specified place;

(b) an accused or any other such person was engaged in a specified activity, including, without prejudice to the foregoing generality, travelling in or on a vehicle as a passenger or driver thereof;

(c) an accused or any other such person had possession of any specific article;

(d) an accused or any other such person suffered specified injuries, with any specified consequences;

(e) any person named suffered fatal injuries caused in a specified manner;

(f) the accused or any person deceased made a statement in specified terms;

(g) the accused or any other named person was in a specified physical condition, including, without prejudice to the foregoing generality, a condition of intoxication or sobriety of illness or consciousness or injury.

(2) When such a statement has been served on all the accused persons named on the indictment any accused person so named may, not later than 21 days after the service of the indictment upon him, by written notice in a form prescribed by Act of Adjournal (a "rejection notice") intimate that he does not wish the statement or any part of it to be used as prescribed by subsections (3) and (4) thereof, and thereafter nothing in this section will authorise the use at the trial for any purpose whatsoever of any part of the statement which the accused has in the rejection notice intimated that he does not wish to be used; and the fact of the service of statement or the notice in relation to any such part shall not be referred to in any way at the trial in the presence of the jury.
(3) In relation to any matter contained in a statement duly served as specified in subsection (1) hereof and not mentioned in any rejection notice as mentioned in subsection (2) hereof, it shall not be necessary for the accused or the prosecutor to prove such matter, which shall be deemed to have been fully proved, without prejudice to the right of any party to lead evidence in relation to such matter.
(4) Any statement or part thereof containing any matter deemed, by virtue of this section, to have been fully proved shall be read over to the jury at a time determined by agreement between the prosecutor and the accused or their representatives or failing agreement, at a time determined by the trial Judge.'.").
The noble and learned Lord said: This amendment is lengthy but the issue is fairly straightforward. For a long time there has been a problem regarding evidence which is uncontroversial but which requires the attendance of witnesses at court. It causes a great deal of complaint from witnesses who are unnecessarily brought to court. Through this amendment my noble and learned friend Lord McCluskey and I have attempted to provide a system whereby something may be done to reduce the number of witnesses who must appear at court on undisputed matters.
I am fully aware that the Scottish Law Commission is looking at this whole problem on a wider scale and at the use of witness statements and so on as a possible method. However, it appears to my noble and learned friend and I that this proposal is an interim measure which could help. I am aware that the noble and learned Lord has heard on occasions from the Police Federation and others about the difficulties caused by witnesses having to attend court and having to wait for a long time. It is a major problem. If accepted, this amendment could do something to diminish the problem while we are waiting for the necessarily prolonged review by the Scottish Law Commission. I beg to move.
Lord Fraser of Carmyllie: There is, I think, general agreement that a great deal of time can be spent in criminal trials leading evidence which is uncontroversial and which is unlikely to be challenged. It is clearly, therefore, in the public interest that further ways should be found, consistent with fairness to the accused, in which routine and uncontroversial evidence can be put to the court in a manner which does not unnecessarily take up the time of the court. There already are procedures which do so such as joint minutes of admission agreed between prosecution and defence and statutory certificates with regard to routine evidence. The present amendment is an example of how these procedures can be further extended, to some extent perhaps drawing on the provision with regard to statements relating to drug trafficking contained in Section 4 of the Criminal Justice (Scotland) Act 1987.
However, I am as aware as the noble and learned Lord that the Scottish Law Commission is currently considering a number of matters and in particular the use of affidavit evidence in criminal proceedings. Its discussion paper No. 77 put forward various provisional proposals for consideration.
I wish to consider further the procedure proposed in the amendment along with the considered recommendations of the Scottish Law Commission when these are received. The noble and learned Lord suggested that it could be introduced as an interim measure. That is the only point on which I take issue with him. He and the noble and learned Lord, Lord McCluskey, have advanced an extremely useful proposition; whether it will be followed in every detail I know not but I certainly would not wish to dismiss the proposals out of hand. I do not think that the amendment should be dealt with on an interim basis, however. I prefer to look at it in the context of the recommendations of the Scottish Law Commission.
With that indication to the noble and learned Lord, I hope that he will consider withdrawing his amendment.
Lord Morton of Shuna: That problem has been with us for at least 20 years. It will obviously be with us for some time to come. At this stage I do not intend to press the amendment, but in withdrawing it I do not make any promise either on my own behalf or on behalf of my noble and learned friend that we shall not return to it at Report stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9.30 p.m.
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 299DD:
After Clause 44, insert the following new clause:
("Homeless "travellers"
The Housing (Scotland) Act 1987 shall be amended as follows—

(a) In section 28(2) after the words "think fit", there shall be inserted the words "but not if the person is defined as homeless under section 24(3)(c) and is a traveller".

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(b) In section 33(2)(a) after the words "was made" there shall be inserted the words "and that person is defined as homeless under section 24(3)(c) and is a traveller".

(c) In section 43 there shall be inserted in its appropriate place " "traveller" has the meaning assigned to it by the Local Government and Planning (Scotland) Act 1982.").

The noble Lord said: This amendment was suggested by the Save the Children Fund and concerns travellers. Its purpose is to exclude travellers from the need to establish a local connection if they are defined as or threatened with homelessness under Part II, Section 24 of the Housing (Scotland) Act 1987.
A traveller is defined as homeless when he or she has accommodation but there is no place where he is permitted either to place it or reside in it under Section 24 of the Housing (Scotland) Act 1987. The traveller may have a vehicle, a caravan or a trailer, but no standing ground on which to place it. However, though a traveller may fulfil that definition, he or she is still required to have a local connection with the area.
Given the nomadic lifestyle of travellers and the lack of official site provision that is often a quite impossible task. There are currently around 3,000 travellers in Scotland, making up around 750 families. The pitch targets recommended by the Secretary of State's advisory committee on Scotland's travelling people is that district and island councils should provide 982 official sites. In April 1990 only 23 district and island councils had met their pitch target, providing 271 official sites. Those figures were stated in Hansard in another place on 5th April 1990, cols. 823 and 827.
Where there are no official sites, travellers are forced to stay on unofficial sites which lack basic facilities. Consequently their stay is short and they find it difficult to establish a local connection. Examples of that occur in the regions of Strathclyde and Fife. Only one of the three district councils in Fife and only nine of the 19 district councils in Strathclyde have met their pitch targets. I am glad to say that Glasgow, and in particular the area from which I come—West End Partick—has done very well in the provision of sites for travellers.
The Save the Children Fund project workers, working with travellers in these areas, have identified the difficulty of travellers proving a local connection. Where district councils do not provide official sites or where pitch targets have not been met, local authorities are required by law to operate a policy of toleration and non-harassment of travelling people. The toleration policy applies to the physical occupation of land. Again, from Save the Children Fund work with travelling people, it has been found that despite the toleration policy local authorities still force travellers to move from unofficial sites. One example of that, I am sad to say, occured in Dundee in March this year.
If a traveller has applied for housing and is forced to move on, the application is automatically withdrawn. Consequently, travellers' access to accommodation is restricted both through the waiting list channels and the homelessness route. It is a problem that I am sure the Minister is very well aware of, particularly in his area where there are probably a fair number of travellers.
There is no easy solution, but I hope the Minister will show sympathy. Sympathy and understanding are most important to travelling people. I beg to move.
Lord Sanderson of Bowden: I thank the noble Lord for bringing this matter to the attention of the Committee. I was somewhat surprised but interested to learn that it was the Save the Children Fund that identified this problem. Increasingly, travelling families are staying on the growing network of permanent sites throughout Scotland. I noted the figures mentioned by the noble Lord. Of course, those figures exclude the provision of sites provided privately which I understand offer another 300 to 350 pitches. In addition, I am advised that over 100 extra pitches are in the pipeline with others at the early stage of planning.
In general, moving around the country for at least part of the year is the way of life for travellers. I did not think that we had a problem in this connection. However, if a travelling family becomes homeless, presumably because they lose their caravan as a result of some kind of serious accident, it seems to me highly unlikely that the family will wish to be housed by a local authority under the homelessness legislation. Instead, I would expect the family to be keener to make its own arrangements. Indeed, as the Committee will be aware, Scotland's travellers have a very strong sense of family. Any traveller who finds himself homeless will therefore quickly find his relatives helping him and his family to find somewhere to live.
Therefore, it seems to me that there are few occasions when travellers apply to local authorities under the homelessness legislation. Indeed, I am not aware of any case of a local authority in Scotland refusing to help a traveller who has applied as homeless on the ground that he has a local connection elsewhere. On the other hand, I am aware that several authorities in various parts of Scotland have housed travelling people in council houses when they have wished to settle permanently.
I was interested in what the noble Lord said about Dundee and travellers being moved on. I gather that in Dundee, by negotiation, travellers moved from a sensitive location to a less sensitive location. That may be the case to which the noble Lord referred.
As this matter has been raised at a fairly late stage in our proceedings—I have only recently seen the amendment—I am prepared to consider whether there is a real problem which needs to be addressed. At this; stage I am not convinced that there is, but I should like to take back this matter and consider it. If we think that there is a major problem we shall come back to it at a later stage.
I should like to say to the noble Lord that sympathy undoubtedly is extended from both Front Benches to these people. We shall have to see what the situation really is and whether it is as serious as the noble Lord suggests.
Lord Mackie of Benshie: Is not the main problem in providing sites for the homeless to park their caravans, which are often very good ones, the amount of time that it takes to overcome the
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objections of the local people who are all for them being housed but not in their back-yards?
Lord Sanderson of Bowden: I believe that the noble Lord refers to what is normally called the "NIMBY" aspects of the case. I would not suggest for one moment that he is wrong.
Lord Carmichael of Kelvingrove: I sympathise with the Minister. I believe that the noble Lord, Lord Mackie of Benshie, is wearing his farmer's hat and chewing straw. I am sure that he recognises that the travelling people have been a boon to farmers in parts of Scotland for over 100 years. They may be thorns as well but they are also a boon.
Lord Mackie of Benshie: I am wholly in sympathy with the travelling people. I was merely pointing out the difficulty that arises, but not because of the farmers, who are very sympathetic people.
Lord Carmichael of Kelvingrove: We learn something every day. This is not an easy problem. These people have been used to generations of nomadic living. As an aside, every time I am in the area I take my friends to the Dunoon road at the road end of Hell's Glen to show them the heart of Argyll, where traditionally travelling people were married. I see the noble Lord, Lord Stodart, nodding.
I have discussed these matters with the late Michael Noble, who owned that part of the country. I have great sympathy with the travelling people, but because they are so different from many of us in so many ways problems arise. I am grateful that the Minister is going to consider this matter sympathetically. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 299DE:
After Clause 44, insert the following new clause:
("Amendments to Judicial Pensions Act 1959
.—(1) In section 2(1) of the Judicial Pensions Act 1959, for "75" there shall be substituted "70".
(2) After section 2(1) of the 1959 Act there shall be inserted—
"(2) Such a person as is mentioned in subsection (1) above shall not hold office in a full time capacity for a period of more than 15 years."
(3) After section 11 of the 1959 Act there shall be inserted—
"Assessment of pensions of holders of offices listed in Schedule 1.
The pensions of persons appointed to the offices listed in the first Schedule to this Act after service in the lower judiciary or other pensionable employment, shall be assessed on the basis of the aggregation of service based on that person's final salary."").
The noble Lord said: This is a fairly short amendment which is of some importance. It deals with the position of Scotland's senior judges in terms of the Judicial Pensions Act 1959. At the moment a senior judge in the Court of Session does not have to retire until the age of 75. Many judges have stayed on until that age and even beyond and they have carried out their duties perfectly well.
However, as in every other walk of life, there are variations. I say that saving the presence of the noble and learned Lord, Lord Morton of Shuna. Some retain their vitality and sharpness well past that date but others are less fortunate. The technique of the raised voice and the dropped book has been used on more than one occasion in court. This is not an attempt to give the judiciary a sell-by date, to use a commercial term, or to give them a judicial shelf-life.
The amendment is tabled in order to assist judges. To have someone sitting as a judge to the age of 75 is out of keeping with the modern trend, which is to appoint younger people to judicial office. People are now being appointed who are in their early fifties. By that time they will already have been in demanding legal practice for about 25 years and to serve another 15 years is quite enough. To serve another 25 years in another demanding area of the law is not necessarily in the public interest or that of the individual.
It may be that some judges feel that they have to stay on until the age of 75 because that is what is permitted. They may feel a sense of public duty. If the age limit were lowered to 70, that would give them a lower retirement date. One would hope that that would be preliminary to putting judges on a par with everyone else by having a retirement age of 65. That is the purpose behind subsections (1) and (2) of the new clause.
Subsection (3) is, I suspect, not an amendment to the correct Act. It is quite difficult to trace judicial pensions. I took the opportunity of tabling it under the Judicial Pensions Act 1959, which seemed to be the appropriate legislation. It is a probing amendment concerning the salaries and pensions of judges and it seeks information. The reason behind the amendment is that, because the base of judicial appointments has been widened, people are being appointed to senior appointments in the Court of Session from other areas. People such as sheriff principals and others have held pensionable employment in those areas.
The present position is obscure. There is a possibility that some people are being deprived of the benefit of the pension which they accumulated in a previous job. A judge today should be in the same position as everyone else and should be able to take his pension with him when he moves. A person going from the lower judiciary to the higher judiciary should have an aggregation of all the pension rights that he has accumulated over the years. I understand that that is not the position at the moment. No doubt the noble and learned Lord the Lord Advocate will explain what the position is if I am wrong or give an undertaking to investigate the matter and write to me in due course. I beg to move.
9.45 p.m.
Lord Morton of Shuna: I hesitate to say anything on this subject. On the question of judicial pensions I am rather restrained—certainly on the retirement age. The noble Lord appeared to suggest that I am approaching the present retirement age. I have
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certainly felt elderly during the proceedings on the Bill and that time is pressing on, but I assure the Committee that I am not quite there yet. There is a lot to be said perhaps for those holding high judicial office not doing so for more than 15 years. Whether 70, 75 or any other age is the correct retirement age is another question.
A serious point arises in subsection (3) of the amendment. The noble and learned Lord the Lord Advocate undertook to consider sheriffs' pensions in the general review of pensions. I hope that he will take this amendment away. As I understand the position—I may well be wrong—the present statuory instrument dealing with the matter has the suggestion which only a government-inspired statutory instrument could have—the first employment will pay a larger salary than the second employment. That is not what normally happens. It would be more appropriate to have something on the lines suggested by the noble Lord, Lord Macaulay, in subsection (3). I hope that the noble and learned Lord will say that this matter will also be looked at in the general review of pension requirements.
Lord Stodart of Leaston: It is dangerous for a simple peasant like me to interfere in such august matters. I have no doubt that I shall be put firmly in my place by my noble and learned friend the Lord Advocate. I do not want to personalise this matter but I shall give two examples. First, if the provision had been in existence, the recently retired Lord President would have had to retire two years earlier; secondly, the new Lord President, whose age I am bound to say I have not looked up but who is very young, relatively speaking, in the tradition of the Scottish Bench, would be compelled to retire at a comparatively junior age.
I do not know whether 15 years on the Bench is such a length of time that one begins to lose the brilliance of one's judgments. All I can say is that at the age now, which I feel is advancing fast, of 74 I am just about as bright as I was 20 years ago and I should have thought that that might apply. I do not want to be frivolous but I am against arbitrary limits. Some people are right on the spot at 75. Others, I agree, are not so good a little before then. With those unhelpful comments, I shall now retire.
The Earl of Selkirk: I should like to ask my noble friend whether the age limit applies merely to Scotland or whether it also applies to Great Britain. To my knowledge this subject has never been discussed before in the Chamber. Of course I may be wrong in that assumption, but I do not intend to hold a debate on the matter. I entirely agree with what my noble friend said. I think that 70 is absurdly young. If a man is not sensible at 70, he never will be.
Lord Fraser of Carmyllie: The changes contained in the proposed new clause to the existing provisions relating to the retirement age of the senior judiciary are, as my noble friends Lord Selkirk and Lord Stodart indicated, of considerable substance. The i potential effects of the proposed changes on the

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holders, present and future, of the most senior judicial posts in the United Kingdom are very wide indeed.
The new clause would not be restricted solely to Scotland. Such changes could have profound implications on the future administration of justice not only in Scotland but also throughout the United Kingdom. I suggest to the noble Lord, Lord Macaulay, that without the most careful analysis of the implications of the proposed changes, and the most extensive consultations, it would be quite inappropriate for the Committee to accept such provisions. We dealt earlier with a measure regarding war crimes. However, this in its own way has arguably more profound implications for the judiciary in the United Kingdom than that measure had in its own context. I hope that the noble Lord will be prepared to withdraw the amendment.
In regard to the second matter, I hope that I can be more helpful and reassuring. The final subsection relates to the way in which a person's entitlement is to be calculated following on the periods of service initially in the lower judiciary, or other pensionable employment, and ultimately in the senior judiciary.
I am very much aware that the existing provisions are both extremely complex and also unsatisfactory in certain respects. The present clause is directed only to those whose final appointment is at the most senior level. I must say I am aware that similar problems exist for those at more junior levels in the judiciary. As Members of the Committee are aware, and indeed as the noble and learned Lord, Lord Morton of Shuna, indicated he was, the noble and learned Lord the Lord Chancellor announced in February this year that a radical review would be undertaken of judicial pension schemes on a United Kingdom basis. I am glad to be able to confirm that the particular problems relating to the aggregation of service will be addressed in that review. I hope that, with that assurance, the noble Lord will agree to withdraw the amendment.
Lord Mackie of Benshie: I hope that the Minister will pay no attention to the advice given by the noble Lord, Lord Stodart. He said that some people can go on I or ever and that you cannot make judgments in that respect. The trouble is that the people he is leaving to judge the matter are the judges. That is an impossible situation. If you leave it to a panel to decide which judges should continue after the age of 70 or 75 you are in trouble. I think that an arbitrary limit of some kind should remain in force.
Lord Macaulay of Bragar: I am grateful to the noble and learned Lord the Lord Advocate for his co-operation in the matter of pensions. There may be people who at present are adversely affected by the present legislation and I wonder whether some consideration might be given to applying the rules retrospectively within a certain number of years. I do no: suggest a period of 20 years, but perhaps account could be taken of the movement from lower offices to higher offices. I put that suggestion forward as an idea.
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I may be sticking my neck out for chopping because, having made these observations in what I hope was a helpful manner, I still have to return to Scotland and appear before the judges who may have taken the trouble to read what I said. Therefore I should like to put on record the fact that I am not for one moment suggesting that when a person reaches the age of 70 or 75 he can be regarded as having lost his judicial marbles, to use a colloquialism. From our own experience we have seen judges go past that age and perform their duties excellently. However, it is important to bear in mind that no one is indispensable in this life. I agree that the former Lord President would have had to retire perhaps two years earlier. But is there is something wrong with that principle?
The amendment is designed to bring the judiciary into line with the rest of the country. The noble and learned Lord said that for judges to retire at 70 would cause great problems, but he did not tell us what they would be. All one has to do is to appoint more younger judges, and there is plenty of material available in Scotland for that.
The other difficulty about staying in that type of employment for more than 15 years is that it may impede the changes needed as time passes, depending upon the strength and personality of the person in charge. Having a 15-year maximum, especially at the administrative end of the business, would make room for change if change were needed. Having heard the interesting, short discussion, I beg leave to withdraw the amendment and shall return to face the wrath in Scotland.
Amendment, by leave, withdrawn.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 299DF:
After Clause 44, insert the following new clause:
"After section 35 of the Judicial Factors Act 1849 there shall be inserted the following section—
"35A.—(1) Subject to subsection (5) below, where an individual grants a factory and commission or power of attorney which includes a declaration of intention to which this section applies, the factory and commission or power of attorney shall not be revoked only by reason of any subsequent mental incapacity.
(2) This section applies to a declaration of intention which is in the prescribed form and includes a statement that the granter intends the factory and commission or power of attorney to continue despite any subsequent mental incapacity of his, provided that—

(a) the factory and commission or power of attorney has been subscribed by the granter and attested by two witnesses before a notary public and has been registered in the Books of Council and Session or in the books of the appropriate sheriff court of the sheriffdom in which the granter habitually resides;

(b) the notary public has made a statement in the prescribed form that the granter has read or has had read to him prescribed information explaining the effect of the declaration; and

(c) the granter has sworn or affirmed before the notary public that the declaration was made freely and without coercion of any kind.

(3) In subsection (1) and (2) above "mental incapacity" means, in relation to a granter, that he is incapable of managing his property and affairs by reason of mental disorder.

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(4) "Mental disorder" has, the same meaning as in section 1 of the Mental Health (Scotland) Act 1984.
(5) A factory and commission or power of attorney which includes a declaration of intention to which this section applies shall be revoked by the appointment of a curator bonis or tutor-dative and may be revoked on application to the court by any person having an interest.
(6) In this section—

(a) "prescribed" means prescribed by regulations made by the Secretary of State;

(b) "the court" means the Court of Session or the sheriff." ".

The noble and learned Lord said: The amendment relates to a different issue. By the Enduring Powers of Attorney Act 1985, England has provided a mechanism by which a relative or other trusted person can be given the power to deal with the interests of a person who becomes what I shall call frail mentally. I am not referring to judges over 70 or 75 at that point! In Scotland the position is different in that a power of attorney, as I understand the position, is deemed to lapse if the person granting it becomes incapable of managing his or her own affairs. In that situation Scots law requires that a curator bonis be appointed. There are two main reasons why that is an objectionable procedure. First, it is highly expensive and no one recommends that a curator be appointed unless the estate is of £15,000 or more. The second and possibly more important point is that the curator's duty, as defined by the Accountant of Courts Supervision, is that he should regard the preservation of funds as his main interest.
Those of us who have had parents or other elderly relatives who become frail mentally, if I may put it that way, know full well that what we are interested in, and what I am sure most Members of the Committee and most of the population are interested in, is that the frail person should have his or her interests regarded as paramount rather than the interests of preserving the estate, which is, if I may say so, a rather 18th century approach.
The amendment is put forward so that one can have a power of attorney granted by someone who foresees that he or she may later suffer from mental incapacity. Those of us who have had a relative who begins to suffer from senile dementia know full well that such a person knows that that difficulty is coming and wants to provide for it. Although I am fully aware that the Law Commission is looking at the whole problem, I suggest that the amendment provides a minor, interim measure which could do a vast amount of good and could help many cases where children especially want something to be done for their parents but cannot do anything because of the state of the law. In this respect the English law is far better than the Scottish law.
The Enduring Powers of Attorney Act was brought in by this Government. I hope that the noble and learned Lord the Lord Advocate will see the force of bringing in a similar provision for Scotland. It is to do that that my noble and learned friend Lord McCluskey and I have tabled the amendment. I beg to move.
10 p.m.
The Earl of Balfour: I have a good deal of sympathy with the amendment. In many cases the next of kin has been granted power of attorney, he has consulted the family and has done the best he can. The system of using power of attorney works very well indeed. If a person does, for want of a better word, go "bonkers", the powers come under the extremely strict rules of no less a person than the accountant of the Court of Session.
I wish to give one simple example where one might wish to dispose of property. Perhaps the Committee will forgive me for quoting a case that happened to myself. There was a hill on which there was a quarry that gave my wife quite a good income. Eventually the quarry packed up and I realised that the property could easily change from an asset into a liability. It took quite an elaborate procedure ending with an interview with the accountant at the court to persuade the person concerned that it was in the best interests of everybody that the property should be sold. It was a long drawn out and complicated affair. If somebody had had power of attorney I am sure that they could have consulted the family. Matters could have been settled just like that and the affair would have been much simpler. I strongly support what the noble and learned Lord, Lord Morton of Shuna, said.
Lord Fraser of Carmyllie: As has been indicated, in England and Wales a protection similar to that proposed by this amendment is provided by the Enduring Powers of Attorney Act 1985. I think that there will undoubtedly be general agreement in the Committee that we should make appropriate legislative provision for those who are unfortunately unable to manage their own affairs.
It was following concern expressed by the Law Society of Scotland that the Scottish Law Commission agreed to look at the matter of mentally disabled adults. The commission is now considering this as part of its Fourth Programme of Law Reform. Perhaps I may say that, as regards its inclusion in that programme, from a personal viewpoint I welcome the fact that the noble and learned Lord, Lord Morton of Shuna, has addressed a particular difficulty that arises. Nevertheless I am bound to say that I think there are broader issues that need to be addressed. As the noble and learned Lord said, much of our law stems from the traditions and the interests of the 18th century rather than of the last decade of the present century.
Having said that, I consider that a better approach would be to await the recommendations of the Scottish Law Commission. With that suggestion to the Committee, I undertake to refer the amendment specifically to the Scottish Law Commission for its consideration. With that indication, I hope that the noble and learned Lord will withdraw his amendment.
Lord Morton of Shuna: I shall certainly withdraw the amendment tonight, but we need to consider that there are thousands of people who will suffer

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within the next two or three years from senile dementia. We shall not have an opportunity to reform the law in this radical way that the Law Commission is examining for four, five, six or seven years. It is important that we should do something now as an interim measure.
In withdrawing the amendment I strongly urge the
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noble and learned Lord to consider the matter before the Report stage. It may well be that I shall return to the subject then purely on the basis of an interim measure that would give some relief until a more radical measure can be brought in. At this stage, however, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 45 [UNCITRAL Model Law on International Commercial Arbitration]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 299E:
Page 48, line 5, leave out ("except articles 8, 9, 35 and 36,").
The noble and learned Lord said: As the Committee will be aware, the Bill's provisions about the model law take account of the recommendations made to me by the Scottish Advisory Committee on Arbitration Law chaired by Lord Dervaird. In particular, in terms of Clause 45(4) as drafted, where parties to an arbitration agreement wish to adopt the model law for their arbitration, the model law as set out in Schedule 4 to the Bill will apply, but with certain exceptions. These are that Articles 8, 9, 35 and 36 are not to apply. Parties therefore would not be able to rely on the four excepted articles. Article 9, for example, makes express provision for a party to an arbitration to apply to the court for interim measures such as an interim interdict.
The Scottish advisory committee is now of the view, contrary to its earlier recommendation, that when parties agree to adopt the model law for their arbitration the terms of the model law precisely as set out in Schedule 4 should apply in the same way as the model law would apply to an international commercial arbitration.
1 have accepted the committee's revised recommendation. The present amendment implements that recommendation. I beg to move.
On Question, amendment agreed to.
Clause 45, as amended, agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 299EA:
Before Schedule 4. insert the following new schedule:
("SCHEDULE 3A APPLICATIONS FOR CHILDREN'S CERTIFICATES
1. Applications may be made to a licensing board in accordance with the provisions of this Schedule for a children's certificate within the meaning of section 34A of this Act.
2. The holder of a public house licence or hotel licence in respect of any premises or the applicant for a new public house or hotel licence or for the renewal of such a licence may make an application for a children's certificate in respect of those premises, and any such application shall be in such form as may be prescribed, shall be completed and signed by the applicant or his agent and shall be lodged with the clerk of the licensing board within whose area the premises are situated not later than five weeks before the first day of the meeting of the board at which the application is to be considered.
3. A copy of every application made under this Schedule shall be sent by the applicant to the chief constable, and if the chief constable desires to object to the grant of a children's certificate he shall, not later than seven days before the meeting of the licensing board at which the application is to be considered—

(a) lodge with the clerk of the board a written notice of his objection specifying the grounds of his objection to the grant of the certificate; and

(b) intimate such objection and grounds to the applicant,

and the chief constable shall be entitled to appear at the meeting of the licensing board which considers the application and make objection to the grant of the certificate.
4. A licensing board shall not, within two years of its refusal of an application made under paragraph 2 above in respect of
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any premises, entertain another such application in respect of those premises unless it has made a direction to the contrary in respect of that refusal.
5. An application for a new public house licence or hotel licence or for the renewal of such a licence under section 10 of the principal Act shall state whether the applicant is making an application for a children's certificate.
6. The grant of an application for a children's certificate shall come into effect on the making of the grant or, in the case of such an application made with an application for a new public house or hotel licence, on the day on which such licence comes into effect.
7. The grant of an application for a children's certificate made at the time of an application for the renewal of a licence shall come into effect on the renewal of the licence to which the application relates.
8. If an application for a children's certificate is made at the same time as an application for the renewal of a licence, any existing grant of such an application for a children's certificate shall continue to have effect until the first mentioned application is granted or, as the case may be, refused by the board.
9. The grant of an application for a children's certificate shall cease to have effect when the licence to which it relates ceases to have effect.").
The noble and learned Lord said: The amendment is one of a group of amendments which are consequential on the new clauses on children's certificates which I moved on 2nd April as Amendments Nos. 281F and 281G and which the Committee agreed should be inserted in the Bill. I beg to move.
On Question, amendment agreed to.
Schedule 4 [UNCITRAL]:
Earl of Balfour Earl of Balfour moved Amendment No. 299EB:
Page 61, line 20, after ("question") insert ("that it has jurisdiction").
The noble Earl said: I should like to go briefly through the three sentences which make up Article 16(3) of Schedule 4. An arbitral tribunal may rule on a plea that the tribunal is exceeding the scope of its authority, either as a preliminary question or in an award on the merits. If the tribunal rules on such a plea as a preliminary question—and I propose the addition of the words "that it has jurisdiction"—then any party may request the court to decide the matter, which decision shall be subject to no appeal.
While such a request is pending before the court the arbitral tribunal may continue the arbitral proceedings and make an award. If the words "that it has jurisdiction" are not inserted into the Bill I argue that there is some doubt as to what the preliminary question is.
Furthermore, the Scottish advisory committee added the words in line 20 "on such a plea" but left out the words "that it has jurisdiction". As I read Article 16(3), there is some doubt as to whether the preliminary question is that the tribunal has jurisdiction or the power to make an award on the merits. My amendment removes that doubt. I beg to move.
Lord Fraser of Carmyllie: The Scottish advisory committee noted particularly that an aim of the model law was to prevent the use of the courts as a

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source of tactical delay in international commercial arbitrations. The committee's report states:
"To that end the Model Law severely limits the right of recourse to the courts. Broadly, while an arbitration is a going arbitration, resort to the courts is not permissible except to obtain assistance in such matters as the obtaining of evidence".
My noble friend Lord Balfour has scrutinised this part of the Bill with greater care than anyone else. I am flattered that he should have taken the trouble to do so. It is a measure which I consider is an important one to introduce into the law of Scotland.
However, I invite my noble friend to withdraw the amendment for two reasons. First, it is an unnecessary departure from the model law, which the Scottish advisory committee indicated was undesirable in principle. Secondly, it is undesirable in that it would halt an arbitration where the tribunal has ruled on a preliminary plea that it does not have jurisdiction. Accordingly, the effect of the amendment would be substantially to detract from the benefits of the model law as a relatively uniform international code.
The committee carefully considered each of the articles of the model law, taking account of views expressed in a public consultation. The committee was, in general, content with the principle of Article 16, although it was concerned as to the grounds of appeal and the time available for appeal.
I have listened with interest to the arguments put forward in favour of the amendment. However, I do not consider it appropriate for me to depart from the advisory committee's recommendations both that the model law should be followed, unless there was good reason for not doing so, and that Article 16(3) should be adopted for Scotland with only the changes suggested by the committee.
My noble friend had the courtesy to write to me and let me know in advance that he was concerned about this point. I put his letter to the advisory committee, but it has not departed from its view. Nevertheless, I am grateful to him for raising the matter at this stage.
The Earl of Balfour: I am grateful to my noble and learned friend for giving me that explanation. I had not appreciated that the court could decide that it either has or has not jurisdiction. I thought that the choice was only one way. In view of that explanation, the amendment would not be helpful. I beg leave to withdraw it.
Amendment, by leave, withdrawn.
[Amendment No. 299F had been withdrawn from the Marshalled List.]
Schedule 4 agreed to.
Clause 46 agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 299G:
After Clause 46, insert the following new clause:
("Amendment of Unfair Contract Terms Act 1977 Avoidance of civil liability by non-contractual notice.—(1) The Unfair Contract Terms Act 1977 shall be amended in accordance with this section.
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(2) In section 15(1) (scope of Part II), the words "applies only to contracts," shall cease to have effect.
(3) In section 16 (liability for breach of duty)—
(a) in subsection (1)—

(i) at the beginning there shall be inserted the words "Subject to subsection (1A) below,";

(ii) after the word "contract" in the first place where it occurs there shall be inserted ", or a provision of a notice given to persons generally or to particular persons,";

(iii) after the word "term" in the second place where it occurs there shall be inserted "or provision"; and

(iv) at the end of paragraph (b) there shall be inserted the words "or, as the case may be, if it is not fair and reasonable to allow reliance on the provision";

(b) after subsection (1) there shall be inserted the following subsection—
"(1A) Nothing in paragraph (b) of subsection (1) above shall be taken as implying that a provision of a notice has effect in circumstances where, apart from that paragraph, it would not have effect."; and
(c) in subsection (3)—

(i) after the word "contract" there shall be inserted "or a provision of a notice"; and

(ii) after the word "term" in the second place where it occurs there shall be inserted "or provision".

(4) In section 24 (the "reasonableness" test)—
(a) after subsection (2) there shall be inserted the following subsection—
"(2A) In determining for the purposes of this Part of this Act whether it is fair and reasonable to allow reliance on a provision of a notice (not being a notice having contractual effect), regard shall be had to all the circumstances obtaining when the liability arose or (but for the provision) would have arisen.";
(b) in subsection (3)—

(i) after the word "contract" in the first place where it occurs there shall be inserted "or a provision of a notice";

(ii) after the word "contract" in the second place where it occurs there shall be inserted "or whether it is fair and reasonable to allow reliance on the provision",

(iii) after the word "above" there shall be inserted "in the case of a term in a contract"; and

(iv) in paragraph (a), after the word "term" there shall be inserted "or provision"; and

(c) in subsection (4), after the word "contract" there shall be inserted "or that it is fair and reasonable to allow reliance on a provision of a notice".
(5) in section 25 (interpretation of Part II)—

(a) in subsection (1), after the definition of "hire-purchase agreement" there shall be inserted— " "notice" includes an announcement, whether or not in writing, and any other communication or pretended communication;"; and

(b) subsections (3)(d) and (4) shall cease to have effect.

(6) This section shall have effect only in relation to liability for any loss or damage which is suffered on or after the date appointed for its coming into force.").
The noble and learned Lord said: In moving the new clause in my name I should like to speak also to Amendment No. 300A, which is the new clause tabled by the noble Lord, Lord Mackie of Benshie, and which my new clause is intended to replace.
The purpose of both our new clauses is to extend the Scottish provisions in Part II of the Unfair Contract Terms Act 1977 to apply to non-contractual notices in the same way as the English provisions in Part I of that Act apply to such notices.
At the time of the passage of what became the Unfair Contract Terms Act 1977, the view was taken that it was doubtful whether a person could, under

1011
Scots law, validly exclude his liability for breach of duty merely by means of a notice which did not form part of some contract. This was the reason why the Scottish provisions in that Act, unlike the English provisions, applied only to contracts and to notices having contractual effect. However, recent Scottish cases have held that non-contractual notices disclaiming liability can, in certain circumstances, be given effect to in Scots law. In those circumstances, there is no longer any reason why the Scottish provisions in Part II of that Act should not be extended to cover non-contractual notices in the same way as the English provisions in Part I.
I am grateful to the noble Lord, Lord Mackie, and to the Scottish Consumer Council for bringing this matter to my attention. As I explained to the noble Lord, the Government entirely accept the principle behind his useful amendment, but there were certain respects in which, as always, it was considered that the drafting might be improved. I hope that the noble Lord will agree that the new clause tabled in my name achieves precisely the same purpose as his clause, but is perhaps better drafted. With that in mind, I hope that he will consider not moving his amendment. I beg to move.
Lord Mackie of Benshie: Obviously, the noble and learned Lord the Lord Advocate deserves great praise for seeing the virtues in the amendment. The Scottish Consumer Council, which put it to me, has written to me saying that, not surprisingly, the drafting of the noble and learned Lord's clause is much better than the council's drafting. It is pleased about that. I am extraordinarily pleased in view of the case that it quoted to me. A man could not sue a surveyor who had given a clean bill of health for a house which was thereafter found to be full of dry rot. I should have thought that that was the very first thing that a surveyor should look for. Now that the matter has been put right by this clause, it only remains for me to thank the noble and learned Lord the Lord Advocate for tabling this much superior clause.
Baroness Carnegy of Lour: I too should like to express appreciation to my noble and learned friend. I think that he has done very well in tabling this amendment. The Consumer Council told a tale which should not be possible and I hope that it will now be precluded.
On Question, amendment agreed to.
10.15 p.m.
Lord Macaulay of Bragar Lord Macaulay of Bragar had given notice of his intention to move Amendment No. 300:
After Clause 46, insert the following new clause: ("Composition of Sheriff Court Rules Council.—(1) The Sheriff Courts (Scotland) Act 1971 shall be amended as follows.
(2) In section 33, after subsection (1) there shall be inserted—
"(1A) The Lord President of the Court of Session shall also appoint three persons who shall be other than—

(i) sheriffs principal;

(ii) sheriffs;

(iii) members of the Faculty of Advocates;

(iv) solicitors; or

(v) sheriff clerks.

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(1B) In appointing any member who falls within subsection (1A) the Lord President shall do so after consultation with the Secretary of State, and having regard to the desirability of appointing persons who have experience in, or knowledge of—

(a) consumer affairs;

(b) civil or criminal proceedings and the work of the courts; or

(c) social conditions." ").

The noble Lord said: In the light of Amendment No. 302GA tabled in the name of the noble and learned Lord the Lord Advocate which meets Amendment No. 300 in a slightly broader and perhaps better form, I do not propose to move this amendment.
[Amendment No. 300 not moved.]
[Amendment No. 300A not moved.]
Clauses 47 and 48 agreed to.
Schedule 5 [Amendment of Enactments]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 300B:
Page 67, line 43, at end insert:
("1A. In subsection (2) of section 5 (restriction on power of licensing board to delegate functions) at the end there shall be added the following paragraph—
"(1) making a decision on an application for the grant of a children's certificate under section 34A of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990.".").
On Question, amendment agreed to.
[Amendment No. 300BA not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 300C:
Page 67, line 48, at end insert:
("( ) In paragraph (b) of subsection (2) of that section, for the words ", designations and addresses" there shall be substituted the words "and designations.").
The noble and learned Lord said: Paragraphs 3 and 14 of Schedule 5 to the Bill remove the requirement for licensing boards to publish the addresses of applicants for licences. These amendments remove this same requirement from two further provisions in the 1976 Act; namely, Section 12(2)(b) in respect of applications made other than by individual natural persons, and Schedule 4, paragraph 4(a) in respect of applications for Sunday opening. I regret that these were not included in the introductory print of the Bill. It might also be useful if at the same time I indicate that in moving Amendment No. 300C I speak also to Amendment No. 302E. I beg to move.
On Question, amendment agreed to.
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove had given notice of his intention to move Amendment No. 300CA:
Page 68, line 4, at end insert: ("3A, In section 13(2) (consideration of applications)—

(a) after "licence" there shall be inserted "or for a regular extension of permitted hours or an application under section 32(1A) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990"; and

(b) after "through" there shall be inserted "his own or his agent's".").

The noble Lord said: This is one of a group of amendments. They are all in the schedule and are consequential upon other amendments. Until we

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have a chance to discuss this issue with the other people concerned and perhaps come back on Report, I do not intend to move this amendment. It may be for the convenience of the Committee if we look at Amendments Nos. 300CA, 300CB, 300CC, 300CD, 300CE, 300CF, 300CG, 300D, 300DA, 301, 301A, 301B and 301C together and I do not move them.
[Amendment No. 300CA not moved.]
[Amendments Nos. 300CB to 302AC not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No 302B:
Page 69. line 10, at end insert:
("11A. In each of subsections (1) and (2) of section 69 (prohibition on children being in certain licensed premises) at the beginning there shall be inserted the words "Subject to section 34A of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990".").
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 302C:
Page 69, line 10, at end insert:
("11B. In section 70(children in premises in respect of which a refreshment licence is held) for the number "21" there shall be substituted the number "18".").
On Question, amendment agreed to.
[Amendment No. 302D not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 302E:
Page 69, line 27, at end insert:
(" In paragraph 4(a) of Schedule 4 (applications for Sunday opening), for the words ", designation and address" there shall be substituted the words "and designation".")
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 302F:
Page 70, line 22, leave out ("(4)") and insert ("(1)").
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 302G:
Page 70, line 31, leave out ("(4)") and insert ("(1)").
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 302GA
Page 71, line 39, at end insert:
('The Sheriff Courts (Scotland) Act 1971 (c. 58) 21A.—(1) For subsection (1) of section 33 (Sheriff Court Rules Council) of the Sheriff Courts (Scotland) Act 1971 there shall be substituted the following subsection—
"(1) There shall be established a body (to be known as the Sheriff Court Rules Council, and hereafter in this section and section 34 called "the Council") which shall have the functions conferred on it by section 34, and which shall consist of—

(a) two sheriffs principal, three sheriffs, one advocate, five solicitors and two whole-time sheriff clerks, all appointed by the Lord President of the Court of Session, after consultation with such persons as appear to him to be appropriate;

(b) two persons appointed by the Lord President after consultation with the Secretary of State, being persons appearing to the Lord President to have—

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(i) a knowledge of the working procedures and practices of the civil courts;

(ii) a knowledge of consumer affairs; and

(iii) an awareness of the interests of litigants in the civil courts; and

(c) one person appointed by the Secretary of State, being a person appearing to the Secretary of State to be qualified for such appointment."

(2) In subsection (3) of that section, for the words "consultation with such persons as may appear to him appropriate" there shall be substituted the words "such consultation as is mentioned in paragraph (a) or, as the case may be, (b) of subsection (1) above".").
The noble and learned Lord said: This amendment in large measure reflects an amendment put down by the noble Lords, Lord Carmichael and Lord Macaulay. However, I have altered that amendment while accepting the general principle behind the noble Lords' proposal. We need to consider what lay participation is appropriate in the formulation of procedural rules which apply to civil proceedings in the sheriff courts.
The amendment which I have put forward is different from the noble Lords' amendment in two respects. First, I consider that two rather than three additional members is sufficient. Secondly, it should be borne in mind that a substantial part of the rules council's time is taken up with what might be called the nuts and bolts of procedures which govern sheriff court civil proceedings.
These are technical matters which require professional legal expertise and a close knowledge of how the sheriff courts operate. I therefore consider that it should be necessary for lay members on the rules council to have some knowledge of sheriff civil court procedures and practices to enable them to contribute sufficiently to the work of the rules council.
The amendment that I have brought forward specifies the qualifications that a lay member should have. Unlike the amendment put forward by the noble Lords, the Government's amendment would not specifically exclude the possibility of a lay member appointee being a person who also has formal legal qualifications. This helpfully widens the class of persons who might be considered for appointment. It is a useful amendment and I compliment the noble Lords on bringing it to the attention of the Committee. I have adjusted it in detail, but the principle is there. I hope that it will be widely welcomed by those who are concerned about these matters in Scotland. I beg to move.
Lord Macaulay of Bragar: I should like to thank the noble and learned Lord the Lord Advocate for his gracious words about myself and my noble friend Lord Carmichael. May I express our gratitude to the noble and learned Lord in reverse for the consideration he has given to this very important amendment in an important area of the development of the law. He has taken on board the spirit of the amendment and improved it. We are grateful to him.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 302H:
Page 72, line 2, leave out ("247") and insert ("250").
The noble and learned Lord said: This is a minor drafting amendment. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 302J:
Page 72, line 31, at end insert:
("The Divorce (Scotland) Act 1976 (c.39)
22A. In subsection (l)(b) of section 7 (power of court to award aliment) of the Divorce (Scotland) Act 1976, for the words "(a), (b) or (c)" there shall be substituted the words "(a) or (b)".").
The noble and learned Lord said: This amendment is consequential on the provision at Clause 43(1)(a) which abolishes the concept of divorce for desertion after a period of two years' separation. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 302K:
Page 73, line 11, at end insert ("; and where, by virtue of an order under section 53(2)(ba), 53A(2)(ba) or 55(1)(ba), a solicitor's right of audience in any of those courts is suspended or revoked, the Council shall forthwith inform the persons mentioned in this subsection of that fact.").
The noble and learned Lord said: These amendments refine the disciplinary powers already proposed for the Scottish Solicitors' Discipline Tribunal and the Court of Session when dealing with solicitors who have acquired rights of audience in the supreme courts under Clause 20, but whom the tribunal or court considers to have behaved in such a fashion that those rights should be suspended or revoked. The power to revoke rights is added to by an insertion into the Solicitors' (Scotland) Act 1980. These amendments will be exercisable whether the tribunal or court has found the solicitor guilty of professional misconduct or where the tribunal has found inadequate professional services. While I would not expect to see these disciplinary sanctions exercised frequently, if ever, I think it is important that they should be available. The Committee has already agreed to an amendment to provide for suspension of a solicitor's rights of audience pending determination of a complaint.
Amendment No. 302K is largely consequential on the insertion of this new disciplinary power, and requires the council to inform the clerks to the supreme courts where the tribunal decides to suspend or revoke a solicitor's right of audience before those courts. I hope that the Committee will agree that it is a reasonable addition to the list of disciplinary sanctions available to the tribunal and will allow cases to be dealt with in an appropriate way where the solicitor's transgression relates exclusively to his exercise of rights of audience in the supreme courts.
I speak also to Amendment No. 302Q, which raises the maximum limit for fines at the hands of the tribunal to £10,000. That brings the limit into line with the maximum figure for a fine imposed by the board on a conveyancing practitioner, a confirmation practitioner, or a qualified conveyancer. I hope that Members of the Committee will agree, as the Law Society does, that the two maxima should be comparable. It will be for the
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tribunal to determine a suitable fine in all cases. I speak also to Amendment No. 302R. I beg to move.
On Question, amendment agreed to.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 302L:
Page 73, leave out lines 14 to 17.
The noble and learned Lord said: The amendment leaves out lines 14 to 17 on page 73. At the moment it is illegal for an unqualified person or an employed unqualified person to draw any writ other than a will, a share transfer, a power of attorney and a document in re mercatoria. These have to be done by or on behalf of solicitors. The effect of these four lines in the Bill is to decriminalise the undertaking of such things.
The amendment is put forward on behalf of the Law Society. I suggest that it is wrong that that wide range of matters should now be able to be undertaken by anybody, whether qualified, unqualified, or whatever. It would be very dangerous if anybody were able to do such things. We have become accustomed in Scotland for them to be done only by qualified persons.
The effect of the amendment is to make sure that the drawing of writs relating to moveable property and the drawing of any reserved writ by an unqualified person would not occur, but that it would always be under the supervision of a solicitor, the client of whom would have the protection of all the solicitors' restrictions under the guarantee fund. I beg to move.
10.30 p.m.
Lord Fraser of Carmyllie: The amendment of the noble and learned Lord, Lord Morton, would have two effects. It would retain the offence provisions applying to the preparation of writs relating to moveable estate and to an employee acting on behalf of his company to draw or prepare a writ relating to court proceedings.
I shall deal with the two effects separately. As regards the first, I see no justification to retain a lawyers' monopoly over writs relating to moveable estate. There is no clear evidence that the monopoly is in practice exercised. Moreover the preparation of the writs in question, some of which may, I acknowledge, be complex, is not normally of concern to private individuals.
We are dealing here with documents prepared by businesses or in connection with business arrangements where, I would argue, any risks involved in using someone who is not a solicitor can be evaluated as a normal commercial expense and the choice of adviser made accordingly. By giving up this monopoly we are not surrendering any useful consumer protection.
The Committee has already approved the extensive provisions about regulating those who in future will be permitted to provide conveyancing services relating to heritable estate. I hope the noble and learned Lord, Lord Morton, will appreciate that a comparable need for consumer safeguards does not arise in relation to moveable estate.

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As regards writs relating to certain court proceedings, I am aware that many small businesses and companies wish, for example, to litigate to recover outstanding debts without employing a solicitor I think it is right and proper that they should be able to do so. Many such actions are undefended and raise no issues which require the use of a solicitor. The provisions in the Bill which seek to amend the Solicitors (Scotland) Act 1980 will enable an employee who is not a solicitor to represent his employers in a summary cause or small claims case in the sheriff court, including completion of the necessary court papers.
The amendments to the 1980 Act are limited to two categories of unqualified person: first, an employee of a corporate party (including a company direction) who prepares a summons or writ; and, secondly, a person who is permitted by sheriff court procedural rules to represent a party in a summary cause. This might be an employee acting on behalf of his employer or an adviser from the citizens advice bureau.
The Committee will be aware that "lay representation" is presently permitted in summary cause proceedings and also in proceedings under the Debtors (Scotland) Act 1987. I would, therefore, not wish to limit the relaxation of the offence provision to summary cause procedure, as this would have the effect that an employee could not make an application on behalf of his company under the Debtors (Scotland) Act 1987.
With that explanation, I hope that the noble and learned Lord will now not feel inclined to press his amendment.
Lord Morton of Shuna: At this hour I do not wish to press the amendment. However, I believe that the noble and learned Lord the Lord Advocate is entirely wrong. It is increasingly clear that the distinction between moveable and heritable property is becoming of less and less importance. Moveable property—for example, intellectual property, aircraft, ships and rights in machinery, vessels and aircraft and income from moveables such as animals—is becoming very complicated to deal with. It is vitally important that only qualified people should deal with such matters. At this stage, I ask leave to withdraw the amendment but I assure the Committee that it is very likely that I shall return to this matter at a later stage.
Amendment, by leave, withdrawn.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 302M:
Page 73, line 25, at end insert ("or by a solicitor").
The noble and learned Lord said: I am pleased that the noble and learned Lord, Lord Morton, has associated himself with this amendment, the purpose of which is to enable solicitors to employ qualified conveyancers, should they consider that to be a viable and attractive course. As subsection (2A) of the 1980 Act is presently drafted, it would remain an offence for a qualified conveyancer employed by a solicitor to draw or prepare any writ relating to
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heritable estate, which is the nub of the conveyancing transaction. This amendment removes a potential anomaly. I beg to move.
Lord Morton of Shuna: I rise not only to support the amendment, but also to apologise to the Committee at this stage because I have to be in court tomorrow and must leave. It is no discourtesy to the Committee, but I have duties to perform and I must be at Euston at a certain time. I apologise for that, but I support the amendment and others which I hope will be moved on my behalf.
On Question, amendment agreed to.
[Amendment No. 302N had been withdrawn from the Marshalled List.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 302P:
Page 73, leave out lines 37 to 44.
The noble and learned Lord said: I am again pleased to see that the noble and learned Lord, Lord Morton of Shuna, supports my Amendment No. 302P. It removes part of Schedule 5 which is now redundant. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No 302Q:
Page 74, leave out lines 1 and 2 and insert—
(" "(ba) order that any right of audience held by the solicitor by virtue of section 25A be suspended or revoked;"
(aa) in subsection (2)(c), for the words "£4,000" there shall be substituted the words "£10,000";
(ab) after subsection (3A) there shall be inserted the following subsection—
"(3B) The power conferred by subsection (2)(ba) may be exercised by the Tribunal either independently of, or in conjunction with, any other power conferred by that subsection."; and")
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 302R:
Page 74, line 4, leave out from ("that") to end of line 5 and insert—("any right of audience held by the solicitor by virtue of section 25A be suspended or revoked.".
(9A) In section 53A (inadequate professional services: powers of Tribunal), after subsection (2)(b) there shall be inserted the following paragraph—"(ba) to order that any right of audience held by the solicitor by virtue of section 25A be suspended or revoked;".").
The noble and learned Lord said: I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 302S:
Page 74, line 9, leave out ("acquired") and insert ("held").
The noble and learned Lord said: In moving Amendment No. 302S it may be convenient if I speak also to Amendment No. 302T. These are drafting amendments. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 302T:
Page 74, line 11 after ("(interpretation)") insert—
("(a) after the definition of "the court" there shall be inserted—
" "the Director" means the Director General of Fair Trading;"
and (b)").
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 302U:
Page 74, line 15, at end insert—
("(12) In Schedule 4 (constitution, procedure and powers of Tribunal)—
(a) in paragraph 1—

(i) in sub-paragraph (a), at the end there shall be inserted the words "appointed by the Lord President;"

(ii) in sub-paragraph (b), for the word "4" there shall be substituted the word "8";

(iii) at the end of sub-paragraph (b) there shall be inserted the words "appointed by the Lord President after consultation with the Secretary of State."; and

(iv) the words "appointed by the Lord President", where they appear at the end of that paragraph, shall cease to have effect;

(b) in paragraph 2—

(i) after the words "Lord President" there shall be inserted the words "after consultation with the Secretary of State"; and

(ii) for the words "so re-appointed" there shall be substituted the words "re-appointed by the Lord President";

(c) in paragraph 3, after the words "as the case may be," there shall be inserted the words "after consultation with the Secretary of State,";
(d) in paragraph 14, for the words from "may be published" to the end there shall be substituted the words "shall, subject to paragraph 14A, be published in full";
(e) after paragraph 14 there shall be inserted the following paragraph—
"14A. In carrying out their duty under paragraph 14, the Tribunal may refrain from publishing any names, places or other facts the publication of which would, in their opinion, damage, or be likely to damage, the interests of persons other than the solicitor against whom the complaint has been made or his partners or family, but where they so refrain they shall publish their reasons for so doing."; (f) in paragraph 17—

(i) the words from "also" to "before the order" shall cease to have effect;

(ii) after the words "and shall" there shall be inserted the words ", without prejudice to paragraph 14,"; and

(iii) the words from "and in such other manner" to the end shall cease to have effect; and (g) after paragraph 18 there shall be inserted the following paragraph—

"18A. Without prejudice to paragraph 18, the Council shall ensure that a copy of every decision published under paragraph 14 is open for inspection at the office of the Society during office hours by any person without payment of any fee.".").
The noble and learned Lord said: It might be convenient, when moving Amendment No. 302U, if I speak also to Amendment No. 302Z. Amendment No. 302U makes a number of changes to the composition and procedures of the Scottish Solicitors' Discipline Tribunal. In inviting the Committee to approve the amendment I wish to indicate that I intend to reconsider one aspect of it, which is the requirement of the tribunal to give
1020
named publicity where there is no finding of professional misconduct or of inadequate professional services. Once I have given the matter further thought I will return with a proposal which will apply both to that tribunal and to the conveyancing board, for which the Committee has already approved an amendment to require named publicity in all cases.
With regard to the rest of the amendment I commend a number of changes which have been agreed with the Lord President. I am confident that the Committee will welcome the increase in the number of lay members on the tribunal from four to eight. That should make it easier for the tribunal to arrange sittings and reduce the burden on individual members. The ratio of professional to lay members on any individual sitting of the tribunal remains, however, unaffected. A role is also provided for the Secretary of State in the appointment of lay members of the tribunal in that in future the Lord President will be required to consult him on such appointments. The purpose is simply to help the Lord President to make the lay appointments from a wider pool of candidates than he may readily be able to identify at present.
I believe that there is general support for greater openness in the way in which the tribunal publishes its decisions. Subject to the undertaking I have just given, the tribunal will in future be required to publish all its decisions in full. However, the tribunal is also given a discretion to withhold information regarding those names and facts which, if published, would be detrimental to the interests of a party other than the solicitor concerned or those associated with him.
Amendment No. 302Z simply provides for a consequential repeal in the 1980 Act. I beg to move.
Lord Macaulay of Bragar: It is perhaps my fault but I am not certain what undertaking has been given by the noble and learned Lord. He concluded by saying that the tribunal will be required to publish all its decisions but the noble and learned Lord also referred earlier to findings of not guilty. To save time it would assist if he could say precisely what he is taking away to consider.
Lord Fraser of Carmyllie: I indicated at the outset that I want to reconsider one aspect of the amendment I moved, the requirement for the tribunal to give named publicity where there is no finding—or a finding of innocence, so to speak—of professional misconduct or of inadequate professional services.
I went on to indicate that the tribunal will in future be required to publish all its decisions in full. In making that statement, however, I said that it was subject to the undertaking I had given earlier. I believe that that meets the point which, as the noble Lord will be aware, is of particular concern to the Law Society of Scotland.
Lord Macaulay of Bragar: With that undertaking I shall not take up the time of the Committee by saying anything about that aspect. I shall wait to see what transpires.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 302UA:
Page 74, line 15, at end insert—
("The Matrimonial Homes (Family Protection) (Scotland) Act 1981 (c. 59)
23A.—(1) In section 6(3)(e) of the Matrimonial Homes (Family) Protection) (Scotland) Act 1981 (occupancy rights after dealing with third parties)—

(a) the words ", at or before the time of the dealing," shall cease to have effect; and

(b) in sub-paragraph (1)—

(i) after the word "not" there shall be inserted "or were not at the time of dealing"; and

(ii) after the word "has" there shall be inserted "or had".

In section 8 of that Act (interests of heritable creditors)—

(a) in subsection (2), the words "before granting of the loan" shall cease to have effect; and

(b) in subsection (2A)—

(i) the words "at or before the granting of the security" shall cease to have effect;

(ii) after the word "not" in paragraph (a) there shall be inserted "or were not at the time of the granting of the security"; and

(iii) after the word "has" in paragraph (a) there shall be inserted "or had".").

The noble and learned Lord said: In the groupings as originally set out, this amendment should have been spoken to with Amendment No. 290. That amendment was withdrawn by the noble and learned Lord, Lord Morton, and I had no opportunity to deal with this amendment. It might therefore be of assistance to the Committee to say that the amendment to Section 6 of the Matrimonial Homes (Family Protection) (Scotland) Act will provide welcome relief to sellers who are unable to sell their property and prospective purchasers as well as the Keeper of the Registers for Scotland. However, it would seem advisable in amending Section 6 of the 1981 Act to make a similar amendment to Section 8 of the Act which relates to the interests of heritable creditors and which, I understand, causes even more problems where a creditor wishing to sell the property discovers that he does not have the necessary affidavit. My amendment therefore makes the necessary change to Section 8.
In moving Amendment No. 302UA I speak also to Amendment No. 302ZA which is consequential. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 302UB:
Page 74, line 15, at end insert—
("The Family Law (Scotland) Act 1985 (c. 37)
2313. In section 8(1) of the Family Law (Scotland) Act 1985 (orders for financial provision on divorce etc)—

(a) in paragraph (a), the words "or the transfer of property" sha11 cease to have effect; and

(b) at the end of paragraph (a) there shall be inserted the following paragraph—

"(aa) an order for the transfer of property to him by the other party to the marriage;".").
On Question, amendment agreed to.
Lord Macaulay of Bragar Lord Macaulay of Bragar moved Amendment No. 302V:
Page 74, line 15, at end insert—
("(12) In Schedule 1 (The Law Society of Scotland) after paragraph 11 there shall be inserted—
1022
("Exemption from liability for damages
11A. Neither the Society nor any of its officers or servants shall be liable in damages for anything done or omitted in the discharge or purported discharge of its functions unless the act or omission is shown to have been in bad faith.").
The noble Lord said: In the absence of my noble and learned friend Lord Morton of Shuna I move this amendment which deals with the position of employees of the Law Society in respect of liability and damages. The amendment puts them on the same basis as the staff of the new board created by the Bill. I understand that the noble and learned Lord the Lord Advocate finds the amendment acceptable. I beg to move.
Lord Fraser of Carmyllie: Yes, and in view of the full and persuasive arguments advanced by the noble Lord I am delighted to accept this amendment. It can only be reasonable for the Law Society to enjoy the same degree of protection in the discharging of its statutory functions under the 1980 Act as the board will enjoy under the terms of this Bill. While I am not aware of any cases which point to a pressing need for an exemption from liability for damages for the society, I can clearly see how one may arise. I am grateful to the noble and learned Lord, Lord Morton, for tabling the amendment and to the noble Lord, Lord Macaulay for moving it.
Lord Mackie of Benshie: It seems to me that, quite simply, if the society acts in bad faith it can be liable but if it is incompetent it is not liable.
On Question, amendment agreed to.
10.45 p.m.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 302W:
Page 74, leave out lines 17 to 19 and insert—
("24.—(1) In subsection (1) of section 6 (definitions) of the Legal Aid (Scotland) Act 1986, for the words "if and so far as may be necessary", in both places where they occur, there shall be substituted the words "where appropriate".
(1A) In subsection (2) of section 13 (meaning of "civil legal aid") of the Act, for the words "(so far as is necessary)" there shall be substituted the words ",where appropriate,".
(1B) In subsection (3) of section 14 (availability of civil legal aid) of that Act, at the beginning there shall be inserted the words "Subject to subsections (4) to (6) below,".
(1C) After the said subsection (3) there shall be inserted the following subsections—
"(4) Where—

(a) the Board has refused an application for civil legal aid by a person who has applied for such aid for the purpose of raising an action against the Board; and

(b) the applicant has applied to the Board for a review of his application,

the Board shall, unless they decide to grant the application forthwith, refer the application, together with all relevant precognitions, statements and other papers, including any observations they wish to make on the application, to the sheriff for Lothian and Borders at Edinburgh.
(5) Subject to section 15 of this Act, and to subsection (2) above, where the sheriff decides—

(a) that the applicant has a probabilis causa litigandi; and

(b) that it is reasonable in the particular circumstances of the case that he should receive legal aid,

he shall so inform the Board, and the Board shall make civil legal aid available to the applicant.
(6) A decision made by the sheriff under subsection (5) above shall be final."

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(1D) In subsection (4) of section 21 (scope and nature of criminal legal aid) of that Act, for the words "(so far as is necessary)" there shall be substituted the words ", where appropriate,".
(1E) In subsection (8) of section 29 (legal aid in certain proceedings relating to children) of that Act, for the words "(so far as is necessary)" there shall be substituted the words ", where appropriate,".
(1F) In subsection (4) of section 30 (legal aid in contempt proceedings) of that Act, for the words "(so far as is necessary)" there shall be substituted the words ", where appropriate,".
(1G) In subsection (1) of section 31 (solicitors and council) of that Act, for the words "if the case requires counsel" there shall be substituted the words "where counsel is to be employed '.")
The noble and learned Lord said: Clause 20 provides that solicitors may acquire rights of audience to the supreme courts. It will then not be necessary for counsel to be employed in all supreme court actions, and the definition of legal aid at several points within the Legal Aid (Scotland) Act 1986 as,
"representation by solicitor and (where necessary) by Counsel"
will be incorrect. The amendment corrects the definitions of legal aid within the 1986 Act and replaces a previous drafting error.
There are occasions when legal aid is sought in relation to an action against the Scottish Legal Aid Board. In determining whether to grant legal aid in such cases the board, with which rests the sole power to determine applications for civil legal aid, must act as judge in its own cause and so offend against the principle of natural justice.
In these cases the amendment will require the board to refer the case to the sheriff for Lothian and Borders at Edinburgh for determination, unless on reviewing its original refusal the board is minded to make legal aid available. The amendment further provides that the board will send all such precognitions and other documents submitted by the applicant and any observations thereon which the board wishes to make to the sheriff. This will remove an unfortunate lacuna in the administration of legal aid. I beg to move.
Lord Macaulay of Bragar: On a point of information, are the words "the sheriff defined as being any sheriff for Lothian and Borders at Edinburgh or is it the sheriff principal for Lothian and Borders that is meant? I assume that any sheriff is what is meant.
Lord Fraser of Carmyllie: The word "sheriff is used rather that the words "sheriff principal". I believe that will mean any sheriff at Edinburgh, but if I am wrong I shall let the noble Lord know.
On Question, amendment agreed to.
[Amendment No. 302X not moved.]
Schedule 5, as amended, agreed to.
Schedule 6 [Repeals]:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 302XA:
Page 76, line 11, at end insert—

("1977 c. 50.

The Unfair Contract Terms Act 1977.

In section 15(1), the words "applies only to contracts,".

1024
In section 25, subsections (3)(d) and (4).").
On Question, amendment agreed to.
[Amendment No. 302Y not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 302Z:
Page 76, line 23, at end insert—
("In Schedule 4, in paragraph 1, the words "appointed by the Lord President" following sub-paragraph (b), and in paragraph 17, the words from "also" to "before the order" and the words from "and in such other manner" to the end.").
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 320ZA:
Page 76, line 24, at end insert—

("1981 c.59

The Homes Protection) (Scotland) Act 1981

Matrimonial (Family)

In section 6(3)(e), the words ", at or before the time of the dealing,".

In section 8, in subsection (2), the words "before the granting of the loan", and in subsection (2A), the words "at or before the granting of the security".").

On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 320ZB:
Page 76, line 27, at end insert—
("1985 c. 37. The Family Law In section 8(l)(a), the (Scotland) Act 1985. words "or the transfer of property".").
On Question, amendment agreed to.
Schedule 6, as amended, agreed to.
Clause 49 [Citation, commencement and extent]:
Lord Grimond Lord Grimond moved Amendment No. 303:
Page 49, line 3, leave out ("subsection (3)") and insert ("subsections (3) and (3A)").
The noble Lord said: I tabled this amendment after listening to the ex-Lord President, the noble and learned Lord, Lord Emslie, and three other distinguished judges at Second Reading. Perhaps I may remind Members of the Committee that the noble and learned Lord asked:
"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".—[Official Report, 30/1/90; col. 185.]
The form of that question appeared to invite the answer, "Yes, it might destroy the College of Justice". One other Lord of Appeal in Ordinary and two Lords of the Court of Session also made rather serious criticisms of the Bill.
I am not in a position to say whether they are right or wrong. My first impression was that they were possibly going too far. But the law in Scotland is

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very much more important than the law in England. We have no Parliament and it is through our law, our Church and our education that we express our nationhood. If there were any danger of the College of Justice being destroyed rather casually by a Bill which is said to be one of miscellaneous provisions, the House would bear a heavy responsibility, especially as many of its provisions have come under severe criticism and the Bill does not appear to follow the recommendations of the Royal Commission.
Normally, to suggest that a portion of a Bill should be delayed would be seen as a wrecking amendment and would rightly be resisted by any government. They would say that the Bill had been discussed by Parliament and that they had a right to make it into law. But in this instance there are special reasons why the normal provisions are not necessarily to be carried out. The first is that no one has really suggested that the Bill is of great urgency. No one indeed has suggested that it would ever have been introduced were there not a similar Bill in England. I have heard no criticism, not even from Ministers, of the conduct of the law in Scotland anything like as severe as some of the criticisms of the law in England.
Secondly, it so happens that there is a parallel Bill before Parliament. I have always thought that Parliament makes a mistake in not learning from experiments and seeing what the effect of legislation may be before carrying it any further. I do not believe therefore that there would be any great disadvantage, either to the Government or to the people of Scotland, if Part II of Bill were postponed until we see what happens in England to the English Bill.
Scotland has suffered a great deal in my lifetime from losing is principal institutions, or rather the people who man them. We have seen the head offices of Scottish industry go south. It would be a tragedy for Edinburgh, for Scotland as a whole and for the United Kingdom if Scottish law gradually lost its independence and we saw the leading Scottish lawyers all drifting down to London. It would no longer then be developed, just at the moment when we are going into Europe. Scottish law is of particular importance owing to its similarity in some ways to the law of Europe. Therefore there are obvious dangers in immediately bringing into effect Part II. We cannot just ignore what the noble and learned Lord, Lord Emslie, has said. Bearing in mind the experience in Scotland of a loss of influence and the gradual drift south of power over our own affairs, it seemed to me reasonable that the Committee should at least consider postponing the introduction of Part II of the Bill.
How long we should postpone it is a matter of discussion. I do not put any special weight on the time I have stated in the amendment. But I should like to think that we might, first, consider the Bill further and, secondly, give some attention to the fate of the English Bill and see whether the effects which some people have predicted come to pass. I beg to move.
Lord Fraser of Carmyllie: While I recall that the recently retired Lord President of the Court of
1026
Session did indeed indicate that he had some concern that the College of Justice in Edinburgh may be damaged in some way, and although I have the greatest of respect for his views, I do not accept for a moment that Part II of the Bill will bring about its destruction. On the contrary, I hope that by bringing the arrangement in Scotland for rights of audience in court up to date, we shall secure its continuation and future.
The noble Lord made reference to a drift southwards. I must tell him that as things stand at present—that is, before the Bill is on the statute book—there is already rather an alarming drift of qualified lawyers to London. So much so that before this year is out I suspect that the Society of Scottish Lawyers in London will be larger than the Faculty of Advocates. However, that is already happening. By introducing these changes and modernising the procedures, I would argue that we shall ensure that the law of Scotland and its structures will continue rather than suffer damage.
I must also point out to the noble Lord that I recognise the fact that there is something of an inter-relationship between Part II of the Bill and the Bill which was promoted by my noble and learned friend the Lord Chancellor. However, I do not accept for one moment, as we consider Part II, that there are necessarily lessons to be learnt from the experience south of the Border as regards the type of changes which have been introduced. I say that because we start from a very different standpoint with far greater rights of audience already extended to solicitors in Scotland than are enjoyed by solicitors on this side of the Border. For that reason I do not think that it would be helpful to delay the introduction of Part II of the Bill.
Finally, perhaps I may remind the noble Lord—that is, if he is not already aware of the fact—that as we dealt with Part II I gave an undertaking to the Committee to the effect that so far as concerns Clause 21 which deals with groups of individuals who are not lawyers at present, there would be no commencement order until it was clear that the extended rights of audience provided by Clause 20 had bedded down satisfactorily. That was principally with a view to ensuring that the Lord President of the Court of Session was not unduly burdened with trying to introduce two separate sets of arrangements. It may not be as extensive a delay as the noble Lord would wish; but in a practical way, I believe that that is a more desirable approach. I understand what lies behind the amendment. However, I should prefer to look to our own experience to see how that develops and to consider how Clause 20 settles down before we introduce Clause 21 rather than adopt the approach he suggests which would mean a delay to see what progress is made south of the Border. With that explanation I hope that the noble Lord will feel able to withdraw the amendment.
Lord Grimond: I am most grateful to the noble and learned Lord the Lord Advocate for the courtesy of his reply and for reminding me of the undertaking given as regards Clauses 20 and 21. I agree that those clauses are important. However, I still think that

1027
what I suggested is a very serious possibility, although I rather share his view that the dangers may be exaggerated. Nevertheless, if they were even partially possible, it would be a serious blow to Scotland.
As the noble and learned Lord reminded us, it is interesting to note that the drift southwards is already taking place. To my mind it would be a great pity if that process was accelerated. In view of the undertaking give, and bearing in mind the fact that I may return to the matter at a later stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 303A:
Page 49, line 10, leave out ("paragraph 17") and insert ("paragraphs 17 and 23B").
On Question, amendment agreed to. [Amendment No. 304 not moved.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 304A:
Page 49, line 14, after ("(5)") insert ("Paragraph 17 of Schedule 1 to this Act,")
The noble and learned Lord said: The Committee will be pleased to learn that this amendment is a technical one. I beg to move.
On Question, amendment agreed to.
Clause 49, as amended, agreed to.
In the Title:
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 304AA:
Line 11, after ("imprisonment") insert ("to amend Part I of the Cirminal Justice (Scotland) Act 1987 with respect to registration and enforcement of confiscation orders in relation to the proceeds of drug trafficking;")
On Question, amendment agreed to.
Lord Sanderson of Bowden Lord Sanderson of Bowden moved Amendment No. 304AB:
Line 14, after ("divorce;") insert ("to amend section 24 of the Housing (Scotland) Act 1987 in relation to homelessness due to risk of violence;").
The noble Lord said: I spoke to this amendment with Amendment No. 293B. I beg to move.
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 304AC:
Line 14, after ("divorce;") insert ("to amend the Mental Health (Scotland) Act 1984 with respect to admission to and detention in hospital;").
On Question, amendment agreed to.
[Amendment No. 304B had been withdrawn from the Marshalled List.]
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 305:
Line 14, after ("divorce;") insert ("to make further provision as to the giving of evidence in criminal proceedings by persons outside the United Kingdom, the Channel Islands and the Isle of Man;").
On Question, amendment agreed to.
Lord Fraser of Carmyllie Lord Fraser of Carmyllie moved Amendment No. 306:
Line 15, after ("disputes;") insert ("to amend Part II of the Unfair Contract Terms Act 1977;").
On Question, amendment agreed to.
Title, as amended, agreed to.
House resumed: Bill reported with amendments.

Redbridge London Borough Council Bill
Reported from the Select Committee without amendment and recommitted to an Unopposed Bill Committee.
House adjourned at three minutes past eleven o'clock.