Law Reform (Miscellaneous Provisions) (Scotland) Bill [H.L.]

HL Deb 01 May 1990 vol 518 cc979-1028

House again in Committee.

[Amendment No. 298 not moved.]

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—

1. (a) in section 8(1)(a) after the word "for" there shall be inserted "either or both";
2. (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 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.

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 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 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 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 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 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 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:

1. (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
2. (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 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 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 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 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 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 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. 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 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 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 and discrete assertions as to fact, including, without prejudice to the foregoing generality, assertions that on any specified occasion—

1. (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;
2. (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;
3. (c) an accused or any other such person had possession of any specific article;
4. (d) an accused or any other such person suffered specified injuries, with any specified consequences;
5. (e) any person named suffered fatal injuries caused in a specified manner;
6. (f) the accused or any person deceased made a statement in specified terms;
7. (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 moved Amendment No. 299DD: After Clause 44, insert the following new clause: ("Homeless "travellers" The Housing (Scotland) Act 1987 shall be amended as follows—

1. (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".
996
2. (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".
3. (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 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 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 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 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.

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 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—

1. (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;
2. (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
3. (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. (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—

1. (a) "prescribed" means prescribed by regulations made by the Secretary of State;
2. (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 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 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 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 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—

1. (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
2. (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 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 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 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 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. (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)—

1. (i) at the beginning there shall be inserted the words "Subject to subsection (1A) below,";
2. (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,";
3. (iii) after the word "term" in the second place where it occurs there shall be inserted "or provision"; and
4. (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)—

1. (i) after the word "contract" there shall be inserted "or a provision of a notice"; and
2. (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)—

1. (i) after the word "contract" in the first place where it occurs there shall be inserted "or a provision of a notice";
2. (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",
3. (iii) after the word "above" there shall be inserted "in the case of a term in a contract"; and
4. (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)—

1. (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
2. (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 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 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—

1. (i) sheriffs principal;
2. (ii) sheriffs;
3. (iii) members of the Faculty of Advocates;
4. (iv) solicitors; or
5. (v) sheriff clerks.

(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—

1. (a) consumer affairs;
2. (b) civil or criminal proceedings and the work of the courts; or
3. (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 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 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 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)—

1. (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
2. (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 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 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 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 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 moved Amendment No. 302F: Page 70, line 22, leave out ("(4)") and insert ("(1)").

On Question, amendment agreed to.

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 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—

1. (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;
2. (b) two persons appointed by the Lord President after consultation with the Secretary of State, being persons appearing to the Lord President to have—
1014
1. (i) a knowledge of the working procedures and practices of the civil courts;
2. (ii) a knowledge of consumer affairs; and
3. (iii) an awareness of the interests of litigants in the civil courts; and
3. (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 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 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 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 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 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.

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 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 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 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 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 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 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 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 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—

1. (i) in sub-paragraph (a), at the end there shall be inserted the words "appointed by the Lord President;"
2. (ii) in sub-paragraph (b), for the word "4" there shall be substituted the word "8";
3. (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
4. (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—

1. (i) after the words "Lord President" there shall be inserted the words "after consultation with the Secretary of State"; and
2. (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—

1. (i) the words from "also" to "before the order" shall cease to have effect;
2. (ii) after the words "and shall" there shall be inserted the words ", without prejudice to paragraph 14,"; and
3. (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 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 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)—

1. (a) the words ", at or before the time of the dealing," shall cease to have effect; and
2. (b) in sub-paragraph (1)—
1. (i) after the word "not" there shall be inserted "or were not at the time of dealing"; and
2. (ii) after the word "has" there shall be inserted "or had".

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

1. (a) in subsection (2), the words "before granting of the loan" shall cease to have effect; and
2. (b) in subsection (2A)—
1. (i) the words "at or before the granting of the security" shall cease to have effect;
2. (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
3. (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 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)—

1. (a) in paragraph (a), the words "or the transfer of property" sha11 cease to have effect; and
2. (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 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— ("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 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—

1. (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
2. (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—

1. (a) that the applicant has a probabilis causa litigandi; and
2. (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. (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 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,".

In section 25, subsections (3)(d) and (4).").

On Question, amendment agreed to.

[Amendment No. 302Y not moved.]

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 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 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 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 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 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 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 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 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 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 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 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 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 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.