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

HL Deb 17 May 1990 vol 519 cc388-452

3.16 p.m.

The Minister of State, Scottish Office (Lord Sanderson of Bowden)

My Lords, I beg to move that the Bill be now further considered on Report.

Moved, That the Bill be further considered on Report. — (Lord Sanderson of Bowden.)

On Question, Motion agreed to.

Lord Carmichael of Kelvingrove moved Amendment No. 184: Before Clause 36. insert the following new clause:

("Application for off-sale licence

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

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

The noble Lord said: My Lords, the purpose of the amendment is to give licensing boards the same powers in respect of any structural alterations to off-sale premises as they already have in the case of licensed premises. Control of the structure of off-sale premises will enable licensing boards to ensure that the layout is conducive to the prevention of the sale of alcohol to persons under 18.

Furthermore, under-age drinking is a major concern and plans should ensure that no one can hang about in an area of the premises and virtually turn the off-licence into a drinking den. We must be vigilant in that respect. Unscrupulous owners could encourage in particular younger people to remain on the premises drinking for longer than is good for them.

Therefore, if the premises were open to inspection by the licensing board before the licence was granted or if the board were able to see plans before structural alterations were made, that would go a long way towards obviating the possibility of continuous drinking in off-sale premises. I beg to move.

Lord Sanderson of Bowden

My Lords, the amendment would require the applicant for a new off-sale licence or for renewal of such a licence to lodge a plan with the clerk of the licensing board, similar to the existing provisions relating to applications for public house and hotel licences. Off-sale premises are different in nature from public houses and hotels, where some members of the public spend a considerable period of their leisure time and where alcohol is consumed on the premises. It is right in the case of hotels and public houses, where people will be drinking on the premises, that boards should have the opportunity to consider the proposed layout in detail and to consider its public order and safety implications. We see no similar justification in the case of off-licences, where the customer buys his drink and leaves.

Paragraph 5 of Schedule 6 to the Bill adds the fire authority to the list of competent objectors to an application for an off-sales licence. The point raised by the noble Lord is contained in Clause 43 which introduces provisions enabling the chief constable to make observations on any application. Any question of danger to the public arising from the inadequacy of proposed off-licence premises could therefore be raised by either the chief constable or the fire master.

The present off-sale provisions have operated since the Licensing (Scotland) Act 1959 came into operation. I am not aware that the exclusion of off-sale premises from the requirement for plans to be lodged has created any problems of significance for licensing boards.

In the light of that answer and the provisions in Clause 43, I hope that the noble Lord will consider withdrawing his amendment.

Lord Macaulay of Bragar

My Lords, is not the Minister making a large presumption in assuming that people who go to off-sale premises buy their drinks and leave? Is not one of the troubles that off-sale premises attract people who do not go to public houses or hotels and whose very intention is to linger about in the vicinity of the off-sale premises? Does he agree that to make that requirement for off-sale premises would do no harm in the public interest? It will not cause the applicant a great deal of inconvenience to submit a plan to the licensing board for consideration and approval to ensure that the premises will be suitable for the function lor which they are intended.

Lord Sanderson of Bowden

My Lords, with the leave of the House, I believe that the question which the noble Lord and his noble friend Lord Carmichael are raising is: is there a problem here? I repeat that we are not aware that the exclusion of off-sale premises from the requirement in the plans in the 1959 Act has produced a problem. There is a remedy for the police in Clause 43.

Lord Carmichael of Kelvingrove

My Lords, I shall look at the Minister's reply; but there must surely be occasions on which the police have objected to licences even after they have been granted. It is obvious that there is a great deal of drinking immediately outside licensed premises in the street. I do not frequent them very often, particularly at these times, but I should be surprised if some of the people drinking outside did not move in and out of the premises. However, I shall look at the Minister's reply and perhaps raise the subject again at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 36 [Permitted hours]:

Lord Carmichael of Kelvingrove moved Amendment No. 185:

Page 40, line 38, leave out ("and half-past two in the afternoon and the period between half-past six") and insert ("in the afternoon").

The noble Lord said: My Lords, under Section 64 (4) of the original Act, a licensing board may not grant an application from the holder of a public house licence for an extension of permitted hours on Sunday. Other types of licence-holders—hotels, entertainment establishments, registered clubs and so on—have the right to apply. With the new proposals, off-sales premises will also be able to open between 2. 30 and 6. 30 p. m. That will make it possible for all types of licence-holders, except public houses, to be open on Sunday from 12. 30 to 11 p. m., if the licensee so wishes. It is not by any means compulsory.

The Scottish Office has referred to an Office of Population Censuses and Surveys report on drinking and attitudes to licensing in Scotland, published a few years ago. The report acknowledges that: The Clayson Committee proposed that all licensed premises be permitted, but not obliged, to open at any time from 11 a. m. -11 p. m. on weekdays and from 12. 30 p. m. -11 p. m. on Sundays. The Committee hoped that the implementation of these and other recomendations would encourage 'civilised drinking' —that is, drinking as ancillary to a meal or some other form of social activity, rather than as an end in itself Although the Committee accepted the argument that extension of the hours might tempt some heavy drinkers to even greater excesses, it felt that the overwhelming responsible majority should not be deprived of the greater freedom and flexibility that would be brought about by such a change".

We are all aware that heavy drinkers know how to find alcohol. They are not the kind of people whom we are trying to curb in this way. It is unfair that the only group of people who are not able to open all day, if they so wish, are the public house people. I beg to move.

Lord Campbell of Croy

My Lords, I am most grateful to the noble Lord, Lord Carmichael, for having tabled the amendment because it is the equivalent of two amendments which were tabled in my name at the Committee stage. Because of the postponement of the Committee stage by over a week, I was unable to be here to move them. I informed everyone concerned at the time why I could not be here and I owe an apology to the House, but I was asked to leave the amendments in my name on the Marshalled List so that they could be discussed in Committee.

I must quickly say that I was with my right honourable friend the Prime Minister and Chancellor Kohl in Cambridge for the 40th anniversay of the Konigswinter conference on the day that the Bill was taken. I should explain to noble Lords that I was invited as an old hand, not as someone attending the conference this year, and that some of the participants were rather astonished to find that I had attended the conference before the Berlin Wall was built 30 years ago. It was kind of them to ask me back. That was why I missed the Committee day on 29th March.

The next day I had to go to Normandy to lecture to 350 British officers for five days on an operation carried out by my Scottish Division in June 1944. As only two members of that division still around and able to talk about the operation could be found—it was a staff college study in the 1950s and 1960s—I am sure that noble Lords from Scotland will understand that I could not suddenly let them down, having said weeks beforehand that I would perform that duty. That meant that I could not be here for the next Committee day.

I therefore have a chance to speak now, though only once, this being Report stage, on what were the amendments that I tabled in Committee. I remind noble Lords—I hope that they will bear with me—that nearly 20 years ago I was the Secretary of State who appointed the Clayson Committee. It reported to me and I took the action, before I left office in 1974, which led to the 1976 reform in the Scottish Act.

The Clayson Committee had recommended that there should be a period for all licence holders of the kind for which this amendment provides. Most of the Clayson Committee's recommendations were adopted. As the noble Lord, Lord Carmichael, said, the Bill in its present form would allow every other kind of licence holder, except a public house, the privilege of being able to ask for an extension and have it granted on Sunday afternoons between 12. 30 and 11 p. m., if they so wish and if they are granted permission by the licensing board.

Public houses are the only exception and that seems very strange. Why should they be discriminated against in that way? As the noble Lord, Lord Carmichael said, the only reason appears to be the survey by the Office of Population, Censuses and Surveys which reported about five years ago. That OPCS survey vindicated completely the reform which was carried out in 1976. It studied the first eight years during which Scotland had operated under the 1976 Act and found that there had been no increase in drunkenness and that drinking was becoming a more civilised pastime connected with social gatherings in Scotland. I remind noble Lords that nothing was done in England and Wales at the time. The reform was in Scotland where it was much needed because the early closing hours and other restrictions, which I shall not go into now, meant that some people simply tried to drink as much as they could before early closing times. All that has changed and the OPCS survey vindicated what was done. However, in a part of the survey—it was a minor part—it was reported that there was an attitude which was not in favour of public houses being opened on Sunday afternoons.

I do not think that the sample tested by that unit was asked that particular question. I think the word "pub" was used generically to cover any licensed premises. For example, I do not believe that the question was asked: Do you agree that hotels, off-sales, licensed entertainments and registered clubs should be allowed to have extensions on Sunday afternoons but that public houses should not be given the same right? I am sure that that question was not put.

I believe that there was a simple misunderstanding. There was a general question about opening on Sunday afternoons and so far as the general public were concerned the word "pub" was used to cover all licensees. There must have been a misunderstanding. Otherwise it seems extraordinary that public houses should get such treatment while all other licence holders receive favourable treatment.

I felt that I must speak out, having been the grandfather, if I might say so, of the whole Scottish reform of the licensing laws. If the Government do not agree to this amendment now, it is a matter which they should look at to try to make sure that this anomaly is ironed out.

3.30 p.m.

Lord Macaulay of Bragar

My Lords, my noble friend Lord Carmichael and the noble Lord, Lord Campbell of Croy, have said most of what can be said in favour of this amendment. However, I should like to add a few comments. We are not discussing the principle of whether pubs should be open on Sunday or indeed whether off-licences or places of entertainment serving alcohol should be open on Sunday. Whatever may be one's view, that is past praying for. I know that many people prayed that it would not happen but it has happened.

This amendment appeals to the Government's well-known sense of equity. We know that this is a fair government; they tell us so and say that they approach everything very fairly. The basic issue here is whether it is fair to the publican. After all, in contrast to the off-licence holder who can just stock his shelves, open the doors and provide no other facility apart from handing drink over the counter before taking the money, the publican is subject to very close scrutiny by the licensing boards. Is it fair that the publican should be denied the right to continue to sell within his public house?

It is a fact that in the main drinking has become a more civilised activity—if the word "civilised" can be applied at all to drinking, but we shall apply it for the purposes of this debate—and a large extension of that civilised aspect has come with the introduction of the pub lunch. It is something which attracts tourists. Tourists are a large source of income in particular to Scotland because, as those south of the Border will know, Scotland is the most beautiful country in the United Kingdom, and people tend to go there rather than anywhere else.

From the tourist's point of view, he may be faced with the sad situation of going in for his pub lunch at 2. 15 p. m., starting to eat it at 2. 25 p. m. (if he is lucky) and being thrown out of the front door with his meal unfinished at half-past two, twenty-to three or whatever the time is. He then goes back to France, Germany or wherever he came from and says what an uncivilised though beautiful country Scotland is.

On this side of your Lordships' House we appeal to the Government's sense of equity and fairness. We merely ask them to take this point away and think about it again.

Lord Parry

My Lords, before the Minister rises, will he accept that the House—especially noble Lords from outside Scotland—probably needs a definition of the phrase "civilised drinking "? In attempting such a definition, would the Minister remember that that other great Celt, Dylan Thomas, described a drunkard as, "Anyone you do not know who drinks as much as you do"?

Lord Sanderson of Bowden

My Lords, we have had a wide-ranging debate on this amendment and I shall restrain myself from becoming too closely involved in the rights and wrongs of drinking. The amendment would permit Sunday opening of all licensed premises other than seamen's canteens between the hours of 12. 30 p. m. and 11 p. m. Section 64 (4) of the Licensing (Scotland) Act 1976 prohibits Sunday afternoon opening of public houses when this is unrelated to the service of meals—as the noble Lord, Lord Macaulay, said—and was introduced to prevent all-day bar drinking on Sundays. The responses to the Scottish Home and Health Department's consultative document on the operation of the 1976 Act showed that a clear majority of respondents were opposed to any extension of Sunday permitted hours for public houses.

The noble Lord asked whether the Government were being fair and reasonable. I have to say that we do consult and try to obtain a consensus view. The health interests, community councils, churches and local authorities were all against change. That view was accepted by the Government as they consider it appropriate to restrict the opening of public houses to the times which have operated since 1976—very successfully too, if I might say so to my noble friend.

As I have responsibility for tourism, I welcome the remarks made by the noble Lord, Lord Macaulay. I must however draw to his attention the fact that it was the hate Lord Ross of Marnock who passed the measure in the first place. I for one do not want to change it.

Lord Carmichael of Kelvingrove

My Lords, it is true that the late Lord Ross of Marnock passed the Act with, I think, great foresight. I was involved in it. I am only too glad to admit that he had to make that amendment in order to get the Act through. However, I cannot agree with the Minister's last statement; namely, that they try to be even-handed. We now have a change in that off-licences will be able to open.

The Minister says that the Government continually take soundings. I wonder whether at some time in the very near future they would make another attempt at a survey, perhaps one that would meet with greater probity in relation to its answers than the one described by the noble Lord, Lord Campbell of Croy. In the meantime I beg leave to withdraw the amendment. I am sure that it will come up in another place.

Amendment, by leave, withdrawn.

Clause 37 [Sunday opening of licensed premises]:

Lord Sanderson of Bowden moved Amendment No. 186:

Page 42, line 18, after ("application)") insert ("(a)").

The noble Lord said: My Lords, in moving this amendment I shall speak also to Amendment No. 187. As presently drafted Clause 37 makes no provision for an applicant who has been refused a licence for Sunday opening by a licensing board to appeal to the sheriff against that decision. These amendments rectify that omission.

On a separate but related matter my noble and learned friend the Lord Advocate indicated during Committee stage on 2nd April, in response to Amendment No. 281ZA of the noble Lord, Lord Carmichael of Kelvingrove, that in removing the requirement for separate applications for Sunday opening of licensed premises it was our intention to streamline the application procedures but that we would reconsider the implications for the applicant who had been granted a licence for six days but wished to be able to open his premises on a Sunday.

On further consideration of this matter, we have come to the conclusion that it would not be appropriate to insert into the Bill provisions to enable the applicant in these circumstances to apply for Sunday opening when the original licence had been granted for six-day opening. In reaching that view we have had regard to the fact that Sunday opening of licensed premises is now generally and widely accepted, and consequently we would expect applicants in future as a matter of course to apply for Sunday opening unless they make a conscious decision not to do so. If they make such a decision, and the licensing board grants the application, we consider that it is reasonable for the applicant to wait until the licence is due for renewal before the question of Sunday opening can be considered by the licensing board.

It has been put to us that difficulties might arise if application forms for licences are framed in such a way that, through inadvertence, an applicant may fail to indicate that he wishes a licence extending to Sunday opening. We recognise that there may be a difficulty here and consider that the appropriate way to resolve it is to give guidance to licensing boards, once the provisions come into operation, to make it clear that applicants should have to make a conscious decision not to apply for Sunday opening, for example, by having to tick a box on the application form or some other active rather than passive procedure.

I hope that this will meet the concerns which have been expressed. We have considered this matter very carefully and have concluded that the Bill as drafted, together with the proposed guidance, should deal with the problems which have been identified. To reintroduce separate applications for Sunday opening would simply mean reverting to the provisions in the existing statute which the Government are trying to streamline. I beg to move.

On Question, amendment agreed to.

Lord Sanderson of Bowden moved Amendment No. 187:

Page 42, line 27, at end insert:

("(b) in subsection (4), after the words "transfer the licence" there shall be inserted the words "or to grant the licence in respect of the permitted hours on a Sunday".").

On Question, amendment agreed to.

Clause 38 [Regular extensions of permitted hours]:

Lord Carmichael of Kelvingrove moved Amendment No. 188:

Page 43, line 29, at end insert: ("() Subsection (4) of section 64 of the principal Act is hereby repealed.").

The noble Lord said: My Lords, this amendment is similar to an earlier one that I moved, except that it removes Section 64 (4) of the 1976 Act which says that: A licensing board may not grant an application from the holder of a public house licence for an occasional or regular extension of permitted hours on Sundays".

It would mean, as I read it, that the licensee would then be able to make an application to his own board. Each board will then be able to make an assessment on the basis of its own area and its understanding and knowledge of social and other situations in the area. I beg to move.

Lord Sanderson of Bowden

My Lords, Clause 36 makes provision for permitted hours on a Sunday for public houses. These hours would, as at present, be from 12. 30 p. m. to 2. 30 p. m. and from 6. 30 p. m. to 11 p. m. In the Government's view, these opening hours strike the right balance between the views of those who have reservations about any Sunday opening of public houses and those who wish all day opening. The effect of the amendment would be to allow licensing boards to grant regular and occasional extensions of the permitted hours on a Sunday.

The responses to the consultation exercise conducted by the Scottish Home and Health Department in 1986 indicated that the overwhelming majority were in favour of no change to the existing hours. The Government believe that this clear expression of opinion should be respected, not least because Sunday afternoons are traditionally regarded as periods of peace and quiet which ought not to be at risk of disruption from the opening of public houses, many of which are located in residential areas. I hope that with that explanation which has some bearing on the previous reply that I gave, the noble Lord will consider withdrawing his amendment.

Lord Carmichael of Kelvingrove

My Lords, the Minister again referred to the 1986 survey. I suggest that attitudes have changed considerably since then. The new conditions have not applied for all that long, but the whole atmosphere, particularly in a city like Glasgow this year and in the year of the Glasgow festival, has made people see matters differently. That is why I appeal to the Minister and the Secretary of State to consider whether another survey would do any harm. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carmichael of Kelvingrove moved Amendment No. 189: After Clause 38, insert the following new clause:

("Amendment of s. 17 of 1976 Act

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

The noble Lord said: My Lords, this is an amendment to Section 17 (4) of the principal Act. It proposes that after the words, permanent transfer of a licence there should be inserted the words, or for the grant of a regular or occasional extension".

An applicant for the grant of a new licence, including the provisional grant of such a licence, or for the renewal or permanent transfer of a licence, or for the grant of a regular or occasional extension, may appeal to the sheriff against the refusal of the licensing board to grant, renew or transfer the licence, as the case may be.

At the moment there is no right of appeal to the sheriff on decisions taken by the board under Section 64 of the Licensing (Scotland) Act 1976. This has now taken on an added importance, as an amendment is contained in the Bill which would make it impossible for a licensee to apply to the board for a regular extension for a period of two years. He could not apply until that period had elapsed, if a similar application had been refused.

We feel that this is rather harsh and I know that the licensed trade has been concerned for several years about the omission of this right. All other parts of the Act carry the right of appeal. The decision of licensing boards can vary, not only from one quarterly sitting to another, but it can change during a day's sitting.

During the short period when I was associated with local government, I knew that many members of the licensing board might perhaps be present in the morning but they would often be unable to go back in the afternoon. That meant that different people were studying different licences and perhaps making different judgments on them. I believe that this is totally wrong and that fairness must be exercised in what is an unjust situation. In those circumstances, an appeal to the sheriff should be given earnest consideration. The amendment attempts to prevent this serious anomaly. I beg to move.

Lord Sanderson of Bowden

My Lords, as the noble Lord said, Section 17 (4) of the 1976 Act enables the applicant for the grant of a new licence (including the provisional grant of such a licence), or for the renewal or permanent transfer of a licence to appeal to the sheriff against a refusal by a board to grant, renew or transfer a licence. The amendment seeks to include regular or occasional extensions within this appellate provision.

As far as regular extensions are concerned, by including Clause 38 in the Bill we have had in mind the need for licensing boards, in the case of each application, to weigh up very carefully the likely benefits of the extension to the community locally, and the adverse consequences—if any—for the locality. In our view, these are judgments which boards are best placed to make on the basis of their detailed local knowledge; and the same applies, if anything with more force in the case of occasional extensions. The considerations involved in such decisions are not appropriate to the appellate function of the courts. The consultative exercise which we undertook revealed that a clear majority were opposed to the introduction of a right of appeal on this matter. I understand what the noble Lord says about licensing boards, but I feel that in this case they should be the judges.

Lord Carmichael of Kelvingrove

My Lords, I am sure the Minister realises that that is a disappointing reply. In many cases not only will it depend on whether the board is the same all day—which is one of the hazards a licensee has to overcome—but it may also depend on the initials of his name as to whether he is heard in the morning or the afternoon and the type of board and who is sitting. I believe that it is against natural justice, as has been pointed out by the licensees.

Of coarse there is ultimately the fallback of an appeal 1o the Court of Session, but that is an expensive course which few licensees are able to afford or even to dream of trying to use. I hope that the Minster in another place will take note of what has been said here and will give Members of another place the opportunity to raise the matter again. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

3.45 p.m.

Clause 40 [Children's certificates]:

Lord Sanderson of Bowden moved Amendment No. 190:

Page 44 line 16, leave out subsection (1) and insert: ("(1) The holder of a public house licence or an hotel licence in respect of any premises or an applicant for the grant, provisional grant or renewal of such a licence may apply to the licensing board, in accordance with this section, for the grant of a children's certificate in respect of the premises or any part or parts of the premises specified in the application for the certificate.").

The noble Lord said: My Lords, I beg to move Amendment No. 190 and speak also to Amendments Nos. 191 and 192. During the Committee stage my noble and learned friend the Lord Advocate moved a series of provisions to permit the granting by licensing boards of children's certificates in respect of licensed premises which in their view represent a suitable environment for children. This group of government amendments proposes a few minor improvements to these measures, which I hope will be welcomed by noble Lords. I beg to move.

On Question, amendment agreed to.

Lord Sanderson of Bowden moved Amendment No. 191:

Page 44, line 22, after ("section") insert ("and section 41 of this Act"),

On Question, amendment agreed to.

Lord Sanderson of Bowden moved Amendment No. 192: Page 45, line 25, at end insert: ("(11) Expressions used in this section and section 41 of this Act and in the principal Act shall have the same meaning as in the principal Act.").

On Question, amendment agreed to.

Clause 41 [Suspension of children's certificate]:

Lord Sanderson of Bowden moved Amendment No. 193:

Page 46, line 13, at end insert ("not more than").

The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Clause 44 [Supervision of sales of liquor in off-sale premises by persons 18 or over]:

Lord Sanderson of Bowden moved Amendment No. 194: Page 48, line 23, leave out from ("(1)") to ("A") in line 29.

The noble Lord said: My Lords, I beg to move Amendment No. 194 and speak also to Amendments Nos. 196, 197, 198 and 199. The effect of this set of amendments is to alter Clause 44 of the Bill so as to remove the distinction in the proposed offences in relation to off-sales as between premises with three or more points of sale and those with fewer than three points of sale. The amendments have the effect of modifying the clause so as to provide that in larger premises such as supermarkets an offence is committed, not if the licence holder causes or permits a person under 18 to sell alcoholic liquor, but rather if the licence holder causes such a person to sell alcoholic liquor without the sale having been specifically approved by the licence holder himself or another adult acting on his behalf.

When we considered the matter in Committee in the context of Amendment No. 283 moved by my noble friend Lord Lucas of Chilworth, we had a full debate on the important issues raised by the clause and the amendment. In addition to my noble friend's speech to his amendment, there were contributions from my noble friends Lady Carnegy of Lour, Lord Jenkin of Roding and Lord Sainsbury of Preston Candover, and from the noble Viscount, Lord Falkland, and the noble Lords, Lord Macaulay of Bragar and Lord Carmichael of Kelvingrove.

In response to the points which were made, my noble and learned friend the Lord Advocate indicated that if my noble friend Lord Lucas of Chilworth, would withdraw his amendment he would take the matter away for consideration. The main point at issue was whether, as part of the strategy to minimise under-age drinking, it was right to draw a distinction between the regime of control of off-sales in small off-licences and that in larger shops such as supermarkets. I do not think that it would be productive to rehearse the lengthy background to the issue, except to make the point that, in proposing the distinction in the present Bill the Government had in mind the conclusion reached by your Lordships in the previous parliamentary Session when the House considered the Private Member's Bill introduced in another place by Mr. Jimmy Hood. My noble friend Lady Carnegy of Lour moved an amendment to that Bill which was passed by your Lordships. It has the same effect as the provisions in the present Bill. It seemed to the Government that, since the House had approved this regime last year, it was appropriate to bring forward provisions to the same effect in the context of the present Bill.

The debate which we had on 2nd April suggested, however, that the balance of views among your Lordships was now different and that different proposals might commend themselves to the House. Among the main arguments advanced for the change which these amendments would achieve was that such evidence as there is of purchase in off-sales premises by under-age persons does not distinguish between shops and supermarkets; that anecdotal evidence suggests that young people do not in practice tend to purchase alcohol in supermarkets; that a requirement to restrict sales in supermarkets to persons aged 18 or over would represent an unjustified criticism of younger people's judgment and ability; and that the training prospects of young entrants to the retail trade might be damaged, as was mentioned by my noble friend Lord Sainsbury.

The Government accept that there is less than comprehensive evidence of the extent of the problem of sales to young people in supermarkets. To that extent a more stringent regime for larger shops than for other off-sales might with some justification be criticised as tackling the wrong problem. But I do not think that there is any disagreement that controls aimed at minimising purchases of alcohol by young people in off-sale premises are necessary. We were reassured by the arguments in the debate to the effect that check-out assistants in supermarkets are trained carefully and that there is no reason why those who are under 18 could not be expected to behave responsibly in the matter of sales of alcohol.

Our own investigations at the end of last year indicated, however, that when sales were brisk there was a danger that supervision of alcohol sales by assistants under 18 might become sketchy, and enforcement of the supervision requirement is of course likely to be less straightforward than enforcement of the rule that all sales must be made by assistants who are 18 or over. Nevertheless, we have come to the conclusion that, because of the uncertain impact on the problem of under-age drinking of the distinction between the two regimes which the present clause contains, it would be appropriate to remove that distinction and require licence holders in larger premises such as supermarkets, or adult persons acting on their behalf, to supervise specifically the sales of alcohol by persons under 18.

I hope that this set of amendments will commend themselves to your Lordships. To those who may have preferred the distinction between small and larger premises to be retained I offer the assurance that, if the practical effect of the supervision requirement in Scotland appears to be that there is a serious problem of sales to under-age persons in supermarkets, we shall consider urgently the case for amending legislation and bring forward proposals as soon as the parliamentary timetable allows.

In moving these amendments I trust that my noble friend Lord Lucas will not be seeking to move his Amendment No. 195 which has the same effect but which, in our view, may be technically defective. I beg to move.

Lord Lucas of Chilworth

My Lords, I am grateful to my noble friend for his full explanation of this group of amendments. He reminded the House that in April my noble and learned friend the Lord Advocate promised to consider the views then put forward. The outcome of that consideration is this series of amendments. It meets the proper needs and concerns of the retail trade and the consumers. At the same time, it does not abandon the control of the sale of liquor and alcohol to under-aged persons. Were that not the case the amendments would not commend themselves to the House.

My noble friend Lord Jenkin of Roding, other noble friends and I are satisfied and grateful to the Government for this set of amendments. I hope that your Lordships will accept them this afternoon.

On Question, amendment agreed to.

[Amendment No. 195 not moved.]

Lord Sanderson of Bowden moved Amendments Nos. 196 to 199:

Page 48, line 32, leave out ("with less than three points of sale").

Page 48, line 34, after ("sell") insert ("on these premises").

Page 48, leave out lines 42 and 43.

Page 48, line 45, leave out ("(2)").

On Question, amendments agreed to.

Clause 45 [Power of police to enter clubs]:

4 p.m.

Lord Macaulay of Bragar moved Amendment No. 200:

Page 49, line 5, after ("club") insert ("without the necessity of obtaining a warrant in pursuance of this section only if he is satisfied that there is an emergency situation in relation to the activities of the club requiring his immediate attention or that the public peace is being affected by any such activities.").

The noble Lord said: My Lords, this is an amendment to Clause 45 of the Act which deals with the power of police to enter clubs. The matter was comprehensively discussed in Committee. Section 114 (1) of the new clause states: A constable may, at all reasonable times, enter and inspect the premises of any registered club … Subject to subsection (4) below, any person who … refuses to admit to the premises of a club a constable acting in pursuance of this section; or … obstructs a constable so acting, shall be guilty of an offence. ".

New Section 114 (5) states: If a justice or sheriff is satisfied by evidence on oath that there are reasonable grounds for believing … that any registered club is being so managed or carried on as to give rise to a ground of objection to the renewal of its certificate of registration, being one of the grounds of objection specified in section 108 of this Act; or … that an offence under this Act has been or is being committed in any registered club, he may grant a warrant authorising a constable to enter the premises of such club at any time using such force as is necessary for the purpose and to search the premises and seize any documents relating to the business of the club and to take the names and addresses of any persons found in the premises".

In Committee the noble and learned Lord the Lord Advocate indicated that the power of entry proposed in relation to clubs was basically that which presently relates to the entry of licensed premises and places of entertainment. We tried to distinguish between the two places because essentially a club is a private place. People have volunteered to become members and they expect to receive certain benefits. We are not talking about what one might call sleazy or doubtful clubs, which no doubt still exist in places. We art: talking about civil liberties of the members of ordinary clubs to which decent people belong, including their right to enjoy the private facility of a club the existence of which is approved by the licensing authority, with the club having stated its aims aid objectives.

Most clubs would have nothing to fear if a policeman came to the door and on most occasions would invite him to come in if he wanted to do so. However, to have the right of entry without a warrant enshrined in statute is an entirely different matter and affects the rights of the club members.

It does not take long for word to get around in any neighbourhood where there is a private club which is not being run properly. Neighbourhood watch schemes and groups soon complain to the authorities and, if necessary, the appropriate warrant can be obtained.

As I understand it—and I am sure I shall be corrected if I am wrong—in England there is no such provision. The only way of entering a club in England is for the police to do so lawfully by obtaining a warrant. When that was being discussed in the early 1970s the government of the day expressed the matter in these terms: We did, of course, consider this but in framing this legislation we have at the same time to be quite sure that we are framing it consistently with personal liberty … One of the most valued privileges of clubs is freedon from police entry without a warrant. That is a privilege which should be retained".

The Government would not or could not accept the principle of entry by the police without a warrant into club premises at any time which is inherent in the present proposals in Clause 114 (1).

At that time all parties seemed to accept that to allow the police to enter club premises at any time except for the limited purposes covered by the English Bill would be an unjustifiable interference with private liberties. That is still the case in England. I pose the question: why is that power of entry without warrant necessary for Scotland? I believe that it is the noble Lord, Lord Sanderson of Bowden, who is to reply to this debate. Perhaps he can tell me whether there is a demand in Scotland for this power of entry without warrant. Can the Minister tell us in which areas of Scotland clubs are being run in such a way that the locality is being disturbed? Surely if that were so, the licensing board could take away the certificate from the club. I should be interested to know, as I am sure would your Lordships, whether there is a major problem in Scotland such that constables cannot go along to the justice of the peace or sheriff. There is always a duty justice or sheriff on 24-hour duty and, if something is going wrong in a club, one need only go along and apply for a warrant. Entry to the club can them be obtained.

The amendment does not go so far as to say that the police should have no right of entry without a warrant. It is an attempt to compromise between the private and public interest. If this amendment were accepted, the provision would read as follows: A constable may, at all reasonable times, enter and inspect the premises of any registered club without the necessity of obtaining a warrant in pursuance of this section only if he is satisfied that there is an emergency situation in relation to the activities of the club requiring his immediate attention or that the public peace is being affected by any such activities".

In other words, if there is an urgent situation in which there is no time to obtain a warrant—for example, in order to follow a drug dealer into a club—then that is a state of emergency and the need for a warrant will not apply at all.

The new Section 114 entitles the police to obtain a warrant under the terms of Section 108 of the Licensing (Scotland) Act 1976. I wish to take up your Lordships' time, not deliberately but as a matter of interest, to detail the grounds on which a warrant can be obtained and to pose the question: if a warrant can be obtained on those grounds, where is the necessity to allow a constable to walk into a club willy-nilly at any time of the day? Section 108 of the 1976 Act provides grounds as follows:

1. (a) that the application made by the club is in any respect specified in such objection not in conformity with the provisions of this Act;
2. (b) that the rules of the club are in any respect specified in such objection not in conformity with the provisions of this Act;
3. (c) that the club has ceased to exist or has less than 25 members;
4. (d) that the premises are … not suitable or convenient for the purposes of a club …
5. (f) that the club is not conducted in good faith as a club, or that it is kept or habitually used for any unlawful purpose or mainly for the supply of alcoholic liquor;
6. (g) that there has been a failure to intimate to the registrar forthwith any change in the rules of the club or in the list containing the names and addresses of the officials and members of the committee of management or governing body of the club;
7. (h) that the club is to be used mainly as a drinking club;
8. (i) that there is frequent drunkenness in the club premises, or that drunken persons are frequently seen to leave the premises;
9. (j) that the club is conducted in a disorderly manner;
10. (k) that illegal sales of alcoholic liquor have taken place in the club premises;
11. (l) that persons who are not members of the club are habitually admitted to the club premises merely for the purpose of obtaining alcoholic liquor;
12. (m) that the supply of alcoholic liquor to the club is not under the control of the members of the club or of the committee of management or governing body of the club;
13. (n) that the officials and committee of management or governing body of the club, or the manager, or a servant employed in or by the club, have or will have a personal interest in the purchase by the club or in the sale in the premises of the club of alcoholic liquor or in the profits arising therefrom …
14. (o) that any of the rules of the club referred to in section 107 (1) of this Act are habitually broken;
15. (p) that persons are habitually admitted or supplied as members of the club without an interval of at least two weeks between their nomination and election as ordinary members, or for a subscription of a nominal amount;
16. (q) that the officials and committee of management or governing body of the club, or the members of the club, are persons of bad character or persons who follow no lawful occupation and have no means of subsistence;
17. (r) that the club has been, is or will be used as a resort of persons of bad character;
18. (s) that alcoholic liquor is sold or supplied for consumption on or off the premises outwith the permitted hours.

It is difficult to imagine what other ground remains on which a constable may just wish to wander into a private club. Almost every conceivable evil in relation to the running of a club is covered by Section 108.

The Government having rejected the previous amendment tabled in Committee, we have tabled this amendment in the hope that the Government will accept it as a reasonable compromise which will give protection so that, if there is instant trouble in the club, the police cannot be kept out. However, at the end of the day they will have to justify why they went in.

Scottish law recognises that, should matters come to a court case and the entry without warrant be challenged, the courts give to the policeman on the spot the right to decide whether or not it was an emergency in which he was entitled to act without a warrant. The court will then decide one way or the other whether the evidence obtained in the circumstances in question is admissible in court.

I hope that the Government will accept this amendment and treat it sympathetically in the interests of the various clubs involved. I have received approaches from the Committee of the Registered Clubs Association in England, and that probably also covers Scotland. That covers the Royal British Legion clubs, the Royal Naval Association clubs, the Royal Air Force Association clubs, the National Union of Labour and Socialists Clubs, the National Union of Liberal Clubs and the Working Men's Club and Institute Union Limited. They are of one accord with the view on this issue held by the Association of Conservation Clubs —a right about which noble Lords opposite will know more than I, although I understand that the word "conservative" in relation to clubs sometimes has no political connotation. The clubs in the membership of the above association total approximately 6,000 and it claims to represent 8 million individual members. That is the number of people who would be affected if that right of entry without warrant were allowed in Scotland because the clubs in England and Wales see it as the thin end of the wedge. In those circumstances, I beg to move.

Lord Campbell of Croy

My Lords, I wish to make a few comments and also ask a question on this matter. Going back to the days before the reform of the licensing laws which took place in the 1970s and started in 1971 with the Clayson Committee, there was more than a suspicion that clubs had been set up for the purpose of drinking. They were not bona fide clubs but had come into existence because of the restricted licensing hours and the fact that there could be no premises open on Sundays.

There has been a change since those days. Perhaps my noble friend, when he replies, could say whether there are still clubs of that kind and whether he agrees that there has been a change. We hoped that one of the results of the reform would be that the need for such bogus clubs—if I may use that term —would disappear.

I listened very carefully to the case that has been very fully made and there is a possibility that we may still be thinking of the 1950s, 1960s and early 1970s. I remind noble Lords in all parts of the House who are not familiar with Scotland that there was even a practice which was referred to as the bona fide traveller, which continued until about 20 years ago. That practice meant that someone who was a genuine traveller in Scotland on a Sunday could buy an alcoholic drink at an establishment—usually a hotel which was open at the time—provided that he signed a book and certified that he had travelled at least three miles.

That practice clearly arose from the days of horse and carriage. It was completely out of date and was one of the practices which was fortunately got rid of When that kind of situation exists, one realises that quite a number of people will deliberately travel more than three miles on a Sunday in order to have a drink. What could possibly be worse for the whole principle of drinking and driving? They had to travel three miles and then no doubt return home. The book contained the addresses which could be checked to ensure that the mileage was correct. An official was supposed to inspect the books at the various hostelries from time to time to check the facts.

With that kind of system one can perhaps understand people attempting to get round the restricted hours by establishing clubs which were mainly ways of enabling people to drink on Sundays or outside the permitted hours on other days. I ask my noble friend therefore to comment on what I hope has been a change for the better since that time.

I regret that I was not able to speak and take part in the debates on my own amendments and also the amendments of other noble Lords at Committee stage. I explained the reason why I had to miss the two days, but I hope I have been able to make some contribution at Report stage. I am sure that noble Lords would not have wished me to let down my colleague, the only other surviving member who could be found from our Scottish division able to tell the younger generations in the Army about six days and nights of an operation 46 years ago.

Lord Carmichael of Kelvingrove

My Lords, before the Minister rises to reply, I confess that I do not know what is the definition of a club. With the noble and learned Lord the Lord Advocate, perhaps the Minister could find out for me.

Am I correct in thinking that any policeman walking along the road—say, Princes Street in Edinburgh—could just walk into a new club, or in Blythwood Square in Glasgow walk into the Royal Automobile Club, without invitation, or is there a special difference between that situation and the clubs outlined in what I thought was an extremely powerful speech by my noble friend Lord Macaulay of Bragar?

Lord Dean of Beswick

My Lords, dare I, as a mere Englishmen who nevertheless has spent a lot of time in club life, say that nostalgia has passed the noble Lord, Lord Campbell, by, because clubs are not as he described. The clubs that we are talking about are based on the principle of the working men's club where the club belongs to and is completely owned in its entirety by the members. In most cases the members consider and look upon the club as an extension of their home.

If anything untoward occurs and proof is shown that the clubs are only opening to sell drink, the matter is in the hands of the licensing authority. All the clubs have to apply for renewal of the licences at various periods. I can assure the House that the licensing authority, which of course includes the police and the local authority, is very strict and makes sure that there is no possibility of a mushrooming of undesirable clubs.

I just wanted the say those few words—I know that it is a Scottish Bill—as a person who was the secretary of a Labour club in England which was formed on the basis of working men's clubs and owned by the members. There is no possibility that the type of club to which we are referring can revert to the type of practice that, unless watched very closely, proprietary clubs can.

4.15 p.m.

Lord Sanderson of Bowden

My Lords, this has been a very important debate. The noble Lord, Lord Dean of Beswick, spoke of nostalgia, and many noble Lords will recall discussions in the past, particularly in 1976, when this matter was raised with the party of the noble Lord, Lord Carmichael, in government.

Clause 45 makes provision for the police to enter and inspect clubs at all reasonable times, without a justice's or sheriffs warrant. The background to this provision is that in 1973 the Clayson Committee recommended, as had the Guest Committee previously—my noble friend is correct—that the police should have the same right of entry to registered clubs as to licensed premises, but a provision to that effect was not enacted as part of the 1976 Act.

I am sure that the noble Lord, Lord Carmichael of Kelvingrove, remembers well what happended at that time. During the passage of that measure, the issue provoked a good deal of debate —and I may say cross-party debate also. One speaker made the point that there was a considerable list of people in support of the proposal for a power of entry who had not been mentioned, and the same is true on this occasion.

Before reaching the conclusion that the Bill as introduced should include a provision along these lines, the Government consulted on this issue, and on other matters, by means of a consultation paper issued by the Scottish Home and Health Department in 1986. Of those who responded on this point, an overwhelming majority supported a police power of entry without warrant. These organisations included the Law Society, CoSLA, the Police Federation, the Association of Chief Police Officers (Scotland), the Association of Scottish Police Superintendants, the Scottish licensing boards and other bodies covering the licensed trade, community councils, churches and alcohol abuse interests.

I should draw particular attention to the views of the Association of Chief Police Officers (Scotland), which expressed the view that there is no doubt that there is abuse of their registration by many clubs in respect of alcoholic liquor and that there are occasions when unrestricted power of entry would be useful.

The noble Lord, Lord Macaulay of Bragar, asked whether there is support for the provision. The answer is yes. A lot of support for the Government's proposals came from the west of Scotland; for instance, from the Strathclyde Licensed Trade Association. Also, very recently in a letter from the Grampian Police Authority there is evidence from the chief constable of Grampian who says that it is essential that the matter should be attended to. The Association of Chief Police Officers in Scotland says in its evidence: there is no doubt that there is abuse of their registration by many clubs in respect of alcoholic liquor and although the Act provides for entering under warrant, there are occasions when unrestricted power of entry would be useful". The use of the word "occasions" is significant. Clearly the Association of Chief Police Officers had in mind that the use of the power would be justified only by particular circumstances occuring on specific occasions. The police concern regarding this matter remains and the department had received many representations, particularly from the chief constable of Grampian, as recently as 23rd April this year.

I turn now to the provisions of the noble Lord's amendment. The amendment would limit the new power of entry without warrant to an emergency situation or one where the constable was satisfied that the public peace was being affected, and I recognise the noble Lord's intention is to frame an amendment that would meet the Government's ultimate aim. Thus, in every case where exercise of the power is contemplated, the police would have to conclude before acting that there was indisputably an emergency situation currently occurring, or that the public peace was unquestionably being disrupted.

The intention behind the proposed Section 114 (1) is to provide the police, as in the case of public houses, with a power limited to entry and inspection of the premises and exercisable only at all reasonable times. I have to say to your Lordships that, in the Government's view, the amendment draws these circumstances in which the power may be exercised too narrowly. The 1976 Act sets out a wide range of offences which can be committed in licensed premises, including registered clubs: these include offences relating to drunk persons in licensed premises, the procuring or aiding of a drunken person to procure alcoholic liquor, and the sale or supply of such liquor to drunken persons and to persons under 18, provisions relating to the permitting of stolen goods in licensed premises and offences relating to betting and gaming. If the police receive complaints alleging that such offences are taking place in a particular club, or if they have reasonable grounds of their own to suppose that such offences are taking place but are unable to provide the evidence necessary (in terms of the existing power of entry) to secure a warrant for entry from the justice or the sheriff, there may be little or nothing which they can do to investigate potential or actual infringements of the law.

I should stress that the proposed power would be exercisable by the police only at reasonable times, and that the proposed Section 114 (4) would create a defence for a person refusing to admit a constable, or obstructing a constable, that he had reasonable excuse for so doing. The question of what constitutes reasonable excuse would of course ultimately be a matter for the courts, but in the event of a dispute as to whether the power of entry should be exercised the club officials concerned might seek reasonably to justify their reluctance to admit the police on grounds of inconvenience as to time of day or the nature of the particular function taking place inside the club.

The noble Lord, Lord Macaulay, referred to Section 108. The problem for the police is that they cannot get the evidence to satisfy the sheriff that a warrant be granted without being able to enter and inspect without a warrant.

The noble Lord, Lord Macaulay, asked a direct question and I can equally directly confirm that this power is not in law south of the Border. However, it is not always the case that laws are similar in every respect and sometimes we feel that the law in Scotland gets it right on some occasions; perhaps not always but certainly on many occasions.

We concluded that a power limited to entry and inspection, and confined to reasonable times, was neither excessive nor draconian. The provision follows on a comprehensive consultation exercise which showed that the overwhelming majority of those consulted were in favour of the measures we have introduced, and I have mentioned the main associations. There is clearly general concern about this matter and the police interests have made it clear to us that they in particular are concerned about the present position and that the power is desirable for occasional use. In these circumstances, and having regard to the fact that a properly managed and operated club has nothing to fear—the noble Lord referred to a new club and I could refer to many others —I hope that your Lordships will agree that the limited provisions in the Bill are reasonable and justified.

It is a difficult situation, as the noble Lord, Lord Macaulay of Bragar, said. He said that there are some clubs that may be sleazy—his word, not mine. I would say that there are many many more clubs that are very satisfactory but it must be admitted that there are some clubs that are, as he said, sleazy.

My noble friend Lord Campbell of Croy asked whether there had been change. Yes, there has been change, but I am concerned, as are my colleagues, about the evidence coming from such well-respected people as the Chief Constable of Grampian. That evidence shows there has been change, mostly for the good, but I have to say that it is not always for the good. Therefore, I hope that the House will reject this amendment.

Lord Macaulay of Bragar

My Lords, I am obliged to the Minister for his extensive and courteous reply to my amendment. There may be some misapprehension about what is required. My understanding is—I may have it wrong, but we all make mistakes—that if a justice of the peace is satisfied by evidence on oath it does not mean that the police officer has to have a piece of evidence in his hand. It is the evidence of the police officer that he suspects what is going on in the club. He does not need to have any solid material evidence. If the justice or sheriff is satisfied by the evidence of the police officer that something is going on in the club that requires investigation, the warrant will be granted. It is not a question of absence of evidence. I still maintain, despite what the Minister said, that this power of unlimited entry is not necessary in Scotland.

The Minister said that he has received representations from various police federations, superintendents' associations, and so on. That is all very well, but how much concrete evidence was presented of instances where the police did not obtain convictions and where power of entry would have assisted them? To have the country run by the police is a dangerous road to tread. To have such a measure basically on the views of the police is, as I said, a dangerous concept in legislation, particularly when it does not apply south of the Border.

Lord Sanderson of Bowden

My Lords, with the leave of the House, this measure is not being put forward on the representations of the police. It is being put forward after very careful consideration. A consultation paper was prepared with all the bodies I listed in favour of it, particularly CoSLA and the Law Society, of which the noble Lord knows quite a lot. I reject his argument that this measure is being put forward on behalf of or for the police. It is being put forward by the Government after careful consideration.

Lord Macaulay of Bragar

My Lords, I am sorry if the Minister has misunderstood me. I was not suggesting that the measure was put forward solely on the representations from the police, but there is certainly a heavy overlay of police representation among the many representations made. The noble Lord has not answered my questions. Why is this measure necessary for Scotland? Where is the abuse taking place? What sort of clubs are abusing the privilege of having a certificate? The Minister has not put forward one solid shred of evidence to justify this imposition on the civil liberties of individuals, which is the other issue involved.

Lord Sanderson of Bowden

My Lords, again, with the leave of the House, I apologise to the noble Lord for intervening once more. I draw his attention to the fact that the police are responsible for law and order in Scotland just as much as anywhere else. I quote from a letter from the Chief Constable of Grampian. He said: The police have no power of entry into Registered Clubs without a Warrant. The practical result is that in relation to Clubs the law is virtually unenforceable". Of course there is a variety of clubs. Of course there are many good ones, but there must be one or two sleazy clubs as well.

Lord Macaulay of Bragar

My Lords, the absence of right of entry without a warrant does not, with respect, make the law unenforceable. The necessity to obtain a warrant was built into law for the protection of the citizen. The citizen behind the closed door of his club is as much a citizen as the citizen behind the closed door of his house whose privacy should not be invaded without a warrant.

The Minister has not faced up to the issue. I know that he has given as full an answer as he can in the circumstances, but I respectfully suggest to him that this amendment, which attempts to reach a compromise between the public and private interests, meets the points that he has made.

To the extent that the Minister is not prepared at least to take away this amendment —the second we have tabled on his issue—I am somewhat disappointed. We had a useful and knowledgeable contribution from the noble Lord, Lord Campbell of Croy, and also from my noble friend Lord Dean of Beswick, who have both faced up to this issue, if I may say so. The year 1973 is a long time ago and referring to what happened then makes a nonsense of the advances that have been made in civilised drinking that we spoke about in relation to an earlier amendment. In the circumstances, I must seek the opinion of the House.

4.29 p.m.

On Question, Whether the said amendment (No. 200) shall be agreed to?

Their Lordships divided: Contents, 83; Not-Contents, 94.

DIVISION NO. 1
CONTENTS
Addington, L.	Hunt, L.
Ailesbury, M.	Hutchinson of Lullington, L.
Airedale;, L.	Jenkins of Putney, L.
Ardwick, L.	John-Mackie, L.
Aylestone, L.	Kagan, L.
Birk, B.	Kilmarnock, L.
Blease, L	Kirkhill, L.
Bonham-Carter, L.	Listowel, E.
Boston of Faversham, L.	Longford, E.
Bottomley, L.	Lovell-Davis, L.
Broadbridge, L.	Macaulay of Bragar, L.
Bruce of Donington, L.	McIntosh of Haringey, L.
Carmichael of Kelvingrove,	McNair, L.
L.	Mishcon, L.
Cledwyn of Penrhos, L.	Molloy, L.
Cocks of Hartcliffe, L.	Monson, L.
David, B.	Morris of Castle Morris, L.
Dean of Beswick, L. [Teller.]	Murray of Epping Forest, L.
Diamond, L.	Nicol, B.
Donaldson of Kingsbridge, L.	Peston, L.
Dormard of Easington, L.	Ponsonby of Shulbrede, L.
Ennals, L.	Prys-Davies, L.
Ewart-Biggs, B.	Rea, L.
Fisher of Rednal, B.	Ritchie of Dundee, L.
Foot, L.	Robson of Kiddington, B.
Gainsborough, E.	Russell, E.
Gallacher, L. [Teller.]	Sainsbury, L.
Galpern, L.	Seear, B.
Gladwyn, L.	Shackleton, L.
Graham of Edmonton, L.	Stallard, L.
Gregson, L.	Stoddart of Swindon, L.
Grey, E.	Strabolgi, L.
Grimond, L.	Taylor of Blackburn, L.
Hampton, L.	Thomson of Monifieth, L.
Hanworth, V.	Tordoff, L.
Harris of Greenwich, L.	Turner of Camden, B.
Hatch of Lusby, L.	Underhill, L.
Hirshfield, L.	Wallace of Coslany, L.
Houghton of Sowerby, L.	Wedderburn of Charlton, L.
Hughes, L.	White, B.

Wigoder, L.	Winchilsea and Nottingham,
Williams of Elvel, L.	E.
Willis, L.
NOT-CONTENTS
Alexander of Tunis, E.	Long, V.
Ampthill, L.	Lucas of Chilworth, L.
Belhaven and Stenton, L.	Luke, L.
Beloff, L.	Lyell, L.
Belstead, L.	Manchester, D.
Bessborough, E.	Mancroft, L.
Blatch, B.	Merrivale, L.
Blyth, L.	Mersey, V.
Bolton, L.	Monk Bretton, L.
Borthwick, L.	Morris, L.
Boyd-Carpenter, L.	Mowbray and Stourton, L.
Brabazon of Tara, L.	Munster, E.
Bridgeman, V.	Murton of Lindisfarne, L.
Butterfield, L.	Nelson of Stafford, L.
Butterworth, L.	Norfolk, D.
Caldecote, V.	Norrie, L.
Carnegy of Lour, B.	Nugent of Guildford, L.
Carnock, L.	Orkney, E.
Colwyn, L.	Orr-Ewing, L.
Cork and Orrery, E.	Oxfuird, V.
Cottesloe, L.	Pender, L.
Cox, B.	Porritt, L.
Craigavon, V.	Rankeillour, L.
Cullen of Ashbourne, L.	Reay, L.
Dacre of Glanton, L.	Rees, L.
Davidson, V. [Teller.]	Renton, L.
Denham, L. [Teller.]	Renwick, L.
Downshire, M.	Rippon of Hexham, L.
Elibank, L.	Rodney, L.
Elles, B.	Romney, E.
Elliot of Harwood, B.	St. John of Bletso, L.
Elton, L.	Sanderson of Bowden, L.
Foley, L.	Sempill, Ly.
Fortescue, E.	Shannon, E.
Fraser of Carmyllie, L.	Skelmersdale, L.
Fraser of Kilmorack, L.	Strathcarron, L.
Gainford, L.	Strathmore and Kinghorne,
Gridley, L.	E.
Hailsham of Saint	Strathspey, L.
Marylebone, L.	Swansea, L.
Halsbury, E.	Swinton, E.
Hesketh, L.	Terrington, L.
Hives, L.	Thomas of Gwydir, L.
Holderness, L.	Trumpington, B.
Howe, E.	Ullswater, V.
Iddesleigh, E.	Vaux of Harrowden, L.
Joseph, L.	Wise, L.
Lloyd of Hampstead, L.	Wyatt of Weeford, L.

Resolved in the negative, and amendment disagreed to accordingly.

4.38 p.m.

Lord Sanderson of Bowden moved Amendments Nos. 201 to 203:

Page 49, leave out lines 11 to 25.

Page 49, line 29, at end insert: ("(4A) Subsections (1) and (2) of section 67 of this Act shall apply to an offence under subsection (2) above as if for any reference in those subsections to the licence-holder there were substituted a reference to every person whose name was, at the time when the offence was committed, contained in the list lodged under section 103(3)(b) of this Act or, as the case may be, in the new list last lodged under section 103 (5) or (5A) of this Act in respect of that club."). Page 50, line 3, in column 3, insert ("Yes").

The noble Lord said: My Lords, Clause 45, in relation to police powers of entry into clubs, provides for each club official or management committee member named at the time of the offence in the list lodged with the sheriff clerk (who acts as the registrar) to be vicariously responsible for an offence by anyone refusing to admit a constable to the club, or obstructing a constable, in the pursuit of his entry and inspection powers. It further provides for a defence of due diligence in any proceedings subsequently instituted.

Section 67 of the 1976 Act already contains the penalty provisions in relation to offences against the 1976 Act including vicarious responsibility and the due diligence defence. These amendments therefore seek to adjust subsection (3) of the new Section 114 contained in Clause 45 to attract the Section 67 provisions by substituting for the reference to the licence holder, a reference to the club official or management committee member named on the list lodged with the sheriff clerk. That is a much tidier arrangement than having two similar provisions in the same Act. I beg to move these amendments en bloc.

On Question, amendments agreed to.

The Lord Advocate (Lord Fraser of Carmyllie) moved Amendment No. 204: After Clause 45, insert the following new clause:

("Presumption as to contents of containers

.—(1) In section 127 of the principal Act (presumptions as to the contents of containers) for subsections (2) to (6) there shall be substituted the following subsections —

"(2) Any liquid found in a container (sealed or open) shall, subject to the provisions of this section, be presumed to conform to the description of the liquid on the container.

(3) An open container which is found to contain—

1. (a) no liquid; or
2. (b) insufficient liquid to permit analysis,

but which when sold or supplied to a person was sealed shall, subject to the provisions of this section, be presumed to have contained at the time of the sale or supply liquid which conformed to the description of the liquid on the container.

(4) Subject to subsection (5) below, in any trial of a person for an offence under this Act, he may rebut the presumption mentioned in subsection (2) or (3) above by showing that, at the time of the sale or supply, the liquid in the container did not conform to the description of the liquid on the container.

(5) A person shall not be entitled to lead evidence for the purpose of rebutting a presumption as mentioned in subsection (4) above unless, not less than 7 days before the date of the trial, he has given notice to the prosecutor of his intention to do so".

(2) Nothing in this section shall apply to the prosecution of any person for an offence committed before the commencement of this section.").

The noble and learned Lord said: My Lords, in moving Amendment No. 204 I shall speak also to Amendment No. 268. The purpose of this new clause and of Amendment No. 268 is to make adjustments to the provisions relating to the presumption as to the contents of containers for the purposes of trials in connection with alleged licensing and related offences. They flow from the practical difficulties which have occurred in the operation of the provisions in the Licensing (Scotland) Act 1976 and the Criminal Justice (Scotland) Act 1980 since they came into operation 14 and 10 years ago, respectively.

The difficulties which have occurred have related to alleged sales of alcohol to, or purchases by, persons under the age of 18. Section 127 of the 1976 Act is inadequate in cases where an alleged under-age drinker is found outside licensed premises with an open container, as it refers to a container "in licensed premises". Moreover, the provision at present does not cover circumstances where an under-age person is found with an empty container, or with one containing insufficient liquid to permit analysis. The amendments seek to deal with those problems in both the 1976 and the 1980 provisions.

There is also a procedural change which the amendments introduce. The onus would be on the accused or his agent to prove that the contents of a container were not alcoholic liquor in terms of Section 139 (1) of the 1976 Act. The amended provisions nevertheless provide that the accused may lead evidence for the purpose of rebutting the presumption, although he or his agent must give the Crown notice.

The 1980 Act is covered because, although it is in similar terms to Section 127 of the 1976 Act, the relevant provision is aimed principally at alleged offences in sports grounds, trains and buses, rather than alleged sales to under-age people and related offences. The amendments make adjustments to the present provisions in the light of the practical experience of their operation. They will make the provisions available in circumstances where they are needed in practice, while at the same time providing appropriate procedural safeguards for the parties concerned. I beg to move.

Lord Macaulay of Bragar

My Lords, on this side of the House we welcome the provision which is another weapon in the armoury to stop the sale of drink to those under 18. This issue concerns all noble Lords. We shall have to see how it works in the courts.

On Question, amendment agreed to.

Lord Tordoff moved Amendment No. 205: After Clause 45, insert the following new clause;

("Maximum numbers of persons on licensed premises

.After subsection (2) of section 24 of the principal Act (special provisions relating to applications for renewal of a licence) there shall be inserted the following subsections—

"(3) Notwithstanding any application of any less restrictive requirements of building regulations, a Licensing Board, on granting application for renewal of a principal licence may, having regard to advice to be given following consultation with the Fire Authority for the area, decide, in the interests of public safety, to fix such maximum numbers of persons who may be entitled to be within such licensed premises from time to time; which requirement shall be a condition of any licence granted.

(4) Section 38 (4) of this Act shall apply to such condition as if it were a condition applied under that section."").

The noble Lord said: My Lords, I have the greatest temerity in inserting myself into discussions of a Scottish Bill. I do so offering the apologies of my noble friend Lord Mackie of Benshie, who cannot be present this afternoon as he has an engagement at the cathedral in Lincoln involving laying up the colours of his old squadron.

The amendment arises out of discussions between my honourable friend Mr. Archy Kirkwood and the police and correspondence between my right honourable friend Sir David Steel and the Etterick and Lauderdale District Council following experiences in Roxburgh district. It is designed to allow a licensing board to put greater restrictions on the number of persons entitled to be within licensed premises than would be laid down by building regulations. The district councils and the licensing boards have been especially concerned that the building regulations, which might be seen to cover the situation, are not adequate. For licensing boards to set more restrictive conditions because of fire hazards; might be seen as unjustified against the formula which exists under the building control regulations. It is because of that considerable perturbation in the Borders that I move the amendment.

4.45 p.m.

Lord Macaulay of Bragar

My Lords, this is an interesting new clause. It deals with the maximum number of persons to be allowed on licensed premises and is designed to ensure their safety on such premises. We are now very safety conscious following the disasters that have stricken the country over the past few years. In various areas drink has been involved. The Taylor Report has now been implemented to minimise numbers so that there is safety in the crowds gathering at football matches. If one goes to a football match, one can see that the ground is never full. There is usually room for people to move around.

The difficulty is in the application of the provision to a public house. I can see it being applied to club premises but the practicability of enforcing the fixed number may have to be considered. Perhaps the local authority could pass by-laws to regulate the numbers. I understand that some establishments are on three floors, with a public house at the bottom, a restaurant in the middle and a discotheque at the top—perhaps it is the other way round; I am not quite sure. It would be difficult, without making a head count, to know how many people were on the premises.

There is the further difficulty that, even though the number of people in the building was certified by the licensing board, those people might all congregate in one part of the premises rather than spread themselves out. A disaster could occur just the same even though the numbers were fixed. It may be the case that public houses will have to come into line with other places which use doormen (or bouncers as they are commonly known) to count the number of people coming in. Even when one travels by ship there is a check at busy times to ensure that the boat is not overcrowded.

I appreciate the reasoning behind the amendment, and I in no way oppose it. However, the practicability of enforcing it causes me concern. There is also the additional cost, but we must not equate cost with safety. The basic difficulty of enforcing it is a drawback to the amendment in its present form.

Lord Sanderson of Bowden

My Lords, Section 24 of the Licensing (Scotland) Act 1976 provides that before granting the renewal of a licence, a licensing board must consult the fire authority in its area; and that the board may also require to see a plan of the relevant premises. This amendment would supplement those provisions by providing that, after consulting the fire authority and in the interests of public safety, the board may set a maximum number of persons permitted to be on the premises. This requirement would be a condition of the licence and any breach of the condition would be an offence under Section 38 (4).

We appreciate the concerns of licensing boards which have given rise to the noble Lord's amendment. Indeed, as a Borderer, I am well aware of the problems that have arisen in that area. We have sympathy for the purpose behind the amendment and have already included in the Bill measures to strengthen the role of fire authorities in the consideration of applications for licences or for renewals. Under the terms of paragraph 5 of Schedule 6 to the Bill, the fire authority will be added to the list of competent objectors in Section 16 (1). The fire authority would therefore be entitled to object to the renewal of a licence, and in the case of existing licences to lodge a complaint which could lead to the suspension of a licence under Section 31. Moreover, we propose in Clause 39 that boards will have increased powers to impose restriction orders on licensed premises, dependent on the receipt of a complaint from a competent objector which would include the fire authority.

We recognise however that there may be merit in going further than this, by amending the 1976 Act to permit licensing boards to make by-laws specifically related to fire safety measures which might include provisions to specify the maximum number of persons on licensed premises. I am not however convinced that the noble Lord has selected the most appropriate section of the 1976 Act for amendment. Section 24 deals only with the renewal of licences, and an amendment to the by-law-making powers in Section 38 might be the best way forward. We shall consider this further with a view to returning to the matter during the later stages of the Bill.

We shall look closely at what the noble Lord, Lord Macaulay, said about enforcement. However, I ask the noble Lord, Lord Tordoff, to withdraw the amendment with the assurance that we shall come back at a later stage on this important matter.

Lord Tordoff

My Lords, when I undertook to move the amendment on behalf of my noble friend, I did not see myself as a great Scottish law reformer. It appears that the Government are being sympathetic. Perhaps I may respond to the noble Lord, Lord Macaulay of Bragar. There are restrictions of this kind in other enactments. One can see the difficulty that he foresees. There are enactments applying to factories, shops and hotels in respect of which, presumably, similar difficulties could be said to exist in terms of concentrations of people in a particular part of the building.

I am most grateful to the noble and learned Lord for his undertaking to take the matter further and return to it at a later stage. I presume he means that it will be dealt with in another place. With that undertaking in mind, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 46 [Probation and community service orders and supervision and care of persons on probation or released from prison etc.]:

Lord Fraser of Carmyllie moved Amendment No. 207:

Page 50, line 32, at end insert:

("() In subsection (1) of each of sections 186 and 387 of that Act (failure to comply with probation order) —

1. (a) after the word "from" there shall be inserted " (a) "; and
2. (b) after the word "probationer" where it first occurs there shall be inserted —
1. "(b) the director of social work of the local authority whose officer is supervising the probationer; or
2. (c) an officer appointed by the director of social work to act on his behalf for the purposes of this subsection, ".").

The noble and learned Lord said: My Lords, this amendment is of a procedural nature and stems from recent difficulties arising during the supervising officer's absence and involving a probationer's failure to comply with a requirement to avoid contact with a child. I beg to move.

On Question, amendment agreed to.

Lord Carmichael of Kelvingrove moved Amendment No. 208:

Page 50, line 32, at end insert: ("(1A) The following subsection is added at the end of section 186 and of section 387 of that Act — () A Court may be satisfied with proof of Failure to Comply through the evidence on oath of the supervising officer unless rebutted by the accused. "").

The noble Lord said: My Lords, in moving this amendment, I should like, with leave of the House, to speak also to Amendment No. 209. This amendment was inspired by SACRO in Scotland. I must declare an interest as I was the chairman of SACRO in Scotland for many years. I am pleased to be able to move this amendment which I hope will receive some sympathy from the Minister.

The purpose of the amendment is to ensure greater clarity. There is currently variation in practice in that some sheriffs, in making decisions about a breach of a probation order, will accept the evidence of the supervising officer alone that a requirement of a probation order has not been complied with; on the other hand, others insist upon corroboration for full criminal proof. Clearly, this is often very difficult to obtain. It is believed that that has contributed to the too low number of breaches of probation orders in Scotland, A low number of breaches leads to loss of credibility with sheriffs and a further lack of confidence in supervising probation by social workers.

It is very important to the increased use of probation planned in the legislation that there is full confidence on the part of both parties. As regards the question of rebuttal, it is rare for an accused not to admit to the alleged circumstances giving rise to breach reports by social workers. Nevertheless, it is clearly important that, if an accused denies the allegation, the court can insist on the need for corroboration. I hope that what is prosposed will be appreciated by the noble and learned Lord the Lord Advocate. I beg to move.

Lord Fraser of Carmyllie

My Lords, the interest shown by the noble Lord in this matter is very much appreciated. I should say that I am in sympathy with the intentions which lie behind the amendment. As he said, it is a most important matter. However, I am not persuaded that the amendments as drafted fully address the difficulties which he so rightly highlighted.

Nevertheless, I am sure that the noble Lord will be pleased to learn that his proposals are being subjected to close scrutiny. Moreover, following full consideration of all the difficulties surrounding assessing the appropriate level of proof required, it may be possible to bring forward amendments in another place which will satisfy the noble Lord's intentions. In view of what I have said, I hope that he will feel able to withdraw his amendment.

Lord Carmichael of Kelvingrove

My Lords, I am most grateful to the noble and learned Lord the Lord Advocate. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 209 not moved.]

Clause 48 [Imposition and recovery of fines, etc.]:

Lord Fraser of Carmyllie moved Amendment No. 210:

Page 53, line 28, at end insert: ("() In subsection (l) (b) of section 407 of that Act (imprisonment for non-payment of fine), at the end there shall be inserted "either with immediate effect or to take effect in the event of the person failing to pay the fine or any part or instalment of it by such further time as the court may order".").

The noble and learned Lord said: My Lords, in moving this amendment, I think that it would be for the convenience of the House if I speak also to Amendment No. 211. The purpose of the first amendment is to set out expressly in statute that a court of summary jurisdiction, when a fine defaulter appears at a means enquiry court, may impose a term of imprisonment in the event of future default in payment while at the same time allowing more time to pay or allowing payment by instalments. This had long been common practice in both sheriff courts and district courts throughout Scotland —that is, until the case of Craig v. Procurator Fiscal, Dundee. In that case, the High Court took the view that the wording of the relevant provisions of the Criminal Procedure (Scotland) Act 1975 is such that imprisonment in the event of future default could be imposed only when the fine was first imposed, and that a means enquiry court could only either allow more time to pay—or allow payment by instalments—or imprison the defaulter forthwith. The practical implication of this judgment is that means enquiry courts are either sending defaulters to prison on their first appearance at such a court, or allowing extra opportunities to pay, with the consequence that many more means enquiry courts may have to be held.

As your Lordships will understand, there is considerable concern about this practical effect of the High Court's judgment. The potential and actual implications for both the courts and, perhaps more important, the prisons are considerable. There is unanimity among practitioners that the problems need to be resolved as soon as possible. I hope that, in these circumstances, the House will accept that the case for amendment of the 1975 Act provisions should be made in this Bill. I beg to move.

Lord Macaulay of Bragar

My Lords, perhaps I may say briefly that this appears to be a very useful step towards keeping fine defaulters out of prison. This is one of the great problems we have as the prison population in Scotland is very heavy. We hope that what is proposed will meet with practical success in the courts.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 211:

Page 53, line 29, leave out ("section 407 of that Act (imprisonment for non-payment of fine)") and insert ("that section")

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 212:

Page 54, line 21, at end insert: ("(1K) Where a sentence is imposed under subsection (1E) above, the Rehabilitation of Offenders Act 1974 shall continue to app y in relation to the sentence imposed on the offender's conviction of the offence as if the sentence under that subsection had net been imposed.").

The noble and learned Lord said: My Lords, this is an amendment which makes it clear that it is the original sentence of the court to which the Rehabilitation of Offenders Act 1974 applies, and not any re-sentence. The clarification is necessary, as there would otherwise be some ambiguity as to which sentence counted in the context of rehabilitation and resulting problems because different disposals attract different periods of rehabilitation.

We consider that, on balance, it is more appropriate that the court's initial decision should apply. While we recognise that there are arguments on both sides, the re-sentencing provisions come into play only in the event of default in payment of a fine, and we consider that it would be unfair that a defaulter's period of rehabilitation were, for example, only one year because he had been re-sentenced to a term of probation, whereas the rehabilitation of a fellow offender who had not defaulted was five years because the disposal was a fine. I beg to move.

On Question, amendment agreed to.

Clause 51 [Restriction of periods of non-cohabitation required in relation to actions of divorce]:

Lord McCluskey moved Amendment No. 213:

Page 58, line 5, leave out paragraph (b).

The noble and learned Lord said: My Lords, in moving this amendment, I should like to speak also to Amendment No. 214. Your Lordships will see that Clause 51, to which these amendments relate, seeks to alter the periods which must elapse before a divorce may be applied for and granted in Scotland. At present, divorce where both parties consent may be obtained after a period of two years, and where the defendant does not consent, the period is five years. The Bill reduces those periods from two years and five years to one year and two years respectively.

A similar amendment to this one was moved by my noble and learned friend Lord Morton of Shuna in Committee. We seek to insert different figures; namely, two years for consent and three years in the absence of consent. Noble Lords will be aware that on the occasion that this matter was debated in Committee support for the amendment which was tabled in my name and that of my noble and learned friend was obtained from the noble Lords, Lord Campbell of Alloway, and Lord Macaulay of Bragar, and the noble Earls, Lord Perth and Lord Selkirk, and the noble Baroness, Lady Phillips. We must bear in mind the fact that if we reduce those periods we are extremely unlikely ever to increase them again.

The thinking behind the amendment is that while we entirely accept what the noble and learned Lord the Lord Advocate said in Committee —that to some extent the choice of a particular period is somewhat arbitrary, and that there is no particular magic about two years as distinct from 21 months or 30 months—nonetheless, we are trying to allow for a sufficient period so that there shall elapse some time during which the parties may get over their anger or their hurt. They may have exaggerated something trivial into something too important.

Since the matter was discussed in Committee and was, by leave, withdrawn, the noble and learned Lord the Lord Chancellor has made a statement on the subject on television. I have the advantage of having a copy of the report in the Independent of Friday of last week in which reference is made to what he said. I accept, as has been said many times in the course of these proceedings, that one does not have to have the law in Scotland the same as the law in England, but on a matter of this kind, especially bearing in mind that a substantial proportion of the population in Scotland—too many for some, although I do not say it myself—comes from England. There are many cross-Border marriages. It is perhaps wise, as the noble and learned Lord, Lord Hailsham, said in Committee, that we should not, except for good cause, allow the law in the two jurisdictions to become too different.

On television the noble and learned Lord the Lord Chancellor said that he wanted a system in which there would be a process of time which would not make divorce easier. He wants to see the practical consequences settled before a divorce is granted. He wants arguments about the children and the financial consequences of divorce settled before the divorce is allowed. One can see some advantages in that. I can see some weaknesses in it; but the corollary to that proposition appears to be that if there are no differences the parties are likely to be allowed to divorce even more swiftly than at present.

What has been suggested to the Law Commission—I understand that the Law Commission favours it—is a period of nine months. I am worried that we are seeing a substantial gap opening up between the law in England and in Scotland. I do not understand the urgency of this proposal. In fact, when I looked at what the noble Lord the Lord Chancellor said, I asked myself: did the Home Secretary know that the Scottish Office was going to put this clause into the Bill? I do not seek an answer to that question. I often wonder about little things, but I do not necessarily have to pursue them to the limit. In the circumstances, I decided that I should return to this matter. Accordingly, I beg to move.

5 p.m.

Lord Campbell of Alloway

My Lords, I support the amendment. I had my name to a similar amendment moved by the motives to which the noble and learned Lord has just referred. I feel, as the noble and learned Lord has just said, that some effort should be made to allow a sufficient period to elapse for considered reflection, or, as my noble and learned friend the Lord Chancellor put it, a process of time for reflection. I have read most of the relevant papers, and I am worried by the Law Commission's attitude. It appears to adopt the principle that we should have, so to speak, divorce on demand rather like some non-Christian countries where one just says three times, "I divorce you", and that is it.

We must be careful about reducing the sanctity of a contract of marriage in any sense. Whether it be religious or non-religious, it is a contract. It is primarily intended to be an engagement for life. There are of course escape clauses as in most contracts, but one should not adopt this dangerous attitude, from a sociological point of view, of facilitating divorce on demand. I shall not take up more time, but I am convinced as a matter of conviction that the spirit of the amendment is right. I hope that your Lordships will support it.

Lord Macaulay of Bragar

My Lords, in Committee I said that I had received no representations from any church body. Since then I have received a letter which is an advance from the Christian Action research and education organisation. The letter is basically in favour of the proposals, but it puts rather neatly the problem faced by all of us who are interested in that area of life. In the letter the following sentence appears: Reason would indicate that the regard in which Marriage is held is inversely proportional to the ease with which one can extricate oneself from the vows". That is a neat way of putting the matter. It focuses the problem. The director says: My concern is that the proposals would not only help those who are facing that irretrievable breakdown of their marriage, but encourage those who are in inherently unstable relationships to enter into wedlock in the knowledge that the key to release them, should they so desire, is readily available. The enactment of this Bill would, therefore, lessen the distress in a number of cases, but I believe, lead to very many more cases being brought. The net result would be to increase the number of couples going through the trauma of separation and be to the detriment of any children involved and society as a whole". I include that in the general debate as an indication that I have had a response from at least one church body.

The Earl of Selkirk

My Lords, I am grateful to the noble and learned Lord for raising this question. It is most astonishing that this propositon about divorce should appear in the Bill. There are all sorts of things in the Bill, including charities and prisons. All kinds of things are mixed up. The first two occasions on which I read the Bill I did not even notice the proposal. I found it only recently. It is a matter of the utmost seriousness. There may not be enough Members in the House to try to take a decison about it today.

It reminds me of what Edmund Burke said: No universal propositon can rationally be affirmed on any moral or political subject". I do not believe that there is a logical basis to the proposition, but there is a fundamental point involved. We have suddenly reached the stage of talking about the subject. The Law Society and I believe the Scottish Office talk about three, six or 12 months separation. As a proposition that is jumping a little quickly.

We should bear in mind that at least two-thirds of the population of Scotland have never had any use for divorce. Those people are more important than those who are divorced. The Law Society of Scotland, for which I have the highest regard, which has an interesting paper on the subject, deals with divorces. It sees the bitterness and the anguish. It may put too much emphasis on the problems. I do not suppose that many people are divorced with complete happiness. I am told that in England—I do not know whether my noble and learned friend knows the figures for Scotland —90 per cent. of the divorces are by consent. I do not know whether that is true in Scotland.

I agree in principle with what the noble and learned Lord, Lord McCluskey, has said. The matter needs to be gone into with great care. This is a question of whether we believe that marriage is an engagement for life. Do we think that it is like renting a house? One takes it for three, six or 12 months and lives in it. That is a fundamental point which goes to the heart of the issue. I do not think that we should lightheartedly go into any proposition which violated that.

I suppose it is inevitable that marriage will not always be a success. There must be a way out. I believe that the Moslems dismiss their wives with three words. However, I do not think we would like that very much in this country. I am not suggesting we should follow that procedure for a minute. I am merely saying that different people undertake divorce in different ways. We must think hard about what we want to change to.

I am not quite certain that we need change any further. Perhaps we should accept the longer period as proposed in the amendment, because will people be any happier if we make divorce easy? We should solemnly ask that question. I am not quite sure of the answer, but I am far from convinced that easy divorce is an easy course to happiness.

Lord Howie of Troon

My Lords, like the noble Earl, Lord Selkirk, I am a little surprised to find this provision in the Bill although it is a miscellaneous provisions Bill. I hasten to add at this point that I am not a lawyer or ever likely to be one. Is it not the case that the Government are looking at the state of society as it is and are recognising that the state of marriage and the state of divorce are as they are and not as we might in a better or an older and different world hope that they were? In that sense should not our legal provisions for such matters relate to the real world with all its blemishes, shortcomings and weaknesses?

A legal framework which does not relate to the real world is a legal framework which is not likely to work. It is just conceivable that there is something to be said for the Government, although I am not just at the moment willing to say it. However, I am sure the noble and learned Lord the Lord Advocate will say that for me.

Earl Russell

My Lords, like the noble Earl, Lord Selkirk I must confess that I had not noticed this provision was in the Bill. I have not come with any prepared speech. I shall only ask the House to bear in mind that the prevention of divorce is not necessarily synonymous with the preservation of marriage.

5.15 p.m.

Lord Fraser of Carmyllie

My Lords, I entirely concur with that observation. I should have thought there was no one in this House who did not regard the institution of marriage as a contract that ought to be entered into in the belief that it will last for life. However, the difficult issue here arises where the high hopes that may have been there at the beginning of a marriage do not last. We must decide how we wish to see an unsuccessful marriage brought to an end, and after what length of time. As the noble and learned Lord, Lord McCluskey, rightly observed —I accept I said this at the time —whatever periods are chosen are necessarily arbitrary within a certain range. As the noble Earl, Lord Selkirk, said, there can be nothing absolute about the periods recommended. Indeed, the Scottish Law Commission acknowledged at the commencement of its report that it had received and considered comments which encompassed a wide spectrum of views.

I must say to my noble friend Lord Campbell of Alloway that the Scottish Law Commission in bringing this matter forward, and the Government in including it in the Bill, are far from adopting a position that there should be divorce on demand. In amending the existing legislation we are not detracting or departing from the single criterion that is required in Scots law that there should be an irretrievable breakdown of the marriage before a divorce can be granted.

I am aware that the Law Commission on this side of the Border is indeed contemplating the issue of divorce. As I understand it, it is likely to proceed in a direction which is certainly at variance with the line that the Scottish Law Commission has proposed. As far as I can ascertain, it would appear that the Law Commission is proposing a rather more radical approach which is sometimes described in shorthand as processed divorce. In that approach it is considered that the critical issues to be determined before a divorce can be granted are that the children of the marriage should be properly cared for and that financial matters between the parties should be settled.

I venture forth cautiously, but as I understand it the noble and learned Lord, Lord McCluskey, may well be right in that the corollary of what is to be proposed by the Law Commission is that divorce might be achievable after a period that is shorter than that which is proposed for Scotland. I stress the words "might be" because, as I understand it, the Law Commission has not yet come forward with its report. However, I mention that matter because we in Scotland have our own divorce law and this is a matter which has been carefully considered by the Scottish Law Commission.

I recognise that noble Lords have strongly held views as regards the commission's recommendations. The effect of Clause 51 may go rather further than they consider desirable. However, it is worth reflecting that on consultation there was quite considerable support for even more radical reform of the divorce laws than represented by Clause 51. I mentioned in Committee that the Law Society of Scotland, for example, had suggested that six months with consent and two years without consent would be the appropriate periods.

As noble Lords will be aware, the Scottish Law Commission carried out consultations and research which indicated that a shortening of the separation periods would be widely supported. In preparing its report the commission obtained comments from 30 organisations on the commission's earlier discussion paper. The commission also conducted a public opinion survey among a representative sample of the Scottish adult population. Nearly 1,000 adults were involved and great care was taken to ensure that the sample was representative of the adult population in terms of age, sex and social class. In answer to some of the concerns that have been expressed I would say that it is worth noting that only 8 per cent. of those responding to the survey had been through a divorce.

The Scottish Law Commission is seeking to reflect the views of society in Scotland as a whole and not only the views of those who have been through the difficulties and trauma of a divorce. From that consultation there emerged the view that separation periods of one year with consent and two years without would be fairer than the present two-year and five-year periods which public opinion regards as unduly repressive. It was considered that the reduced periods would lead to a reduction in the number of acrimonious disputes generated by recourse to behavioural grounds, but would be long enough to prevent the risk of precipitate divorce and the undermining of marriage as a serious commitment.

I say to the noble Lord, Lord Howie of Troon, that I agree that one of the matters that we must consider is the state of society and the difficulties that exist in marriages at the present time. My own experience is that protracted or difficult divorces do absolutely nothing to ensure that the children survive that terrible time without distress or permanent injury.

The commission's proposals were supported by that important body the Scottish Marriage Guidance Council. As well as describing the proposals as eminently sensible, the council stated: We can appreciate that others may be concerned about the reduction of time in relation to encouraging couples to take marriage less seriously but can honestly claim that we, in our work, have not experienced this attitude". Similar support was given by another important body, the Scottish Association of Family Conciliation Services. The commission moreover noted in its report the support for reform expressed by a number of organisations with a special interest in the problems of divorced people. A case can of course be argued in support of the view held by noble and learned Lords that one year's separation with consent and two years without consent are too short, but the proposals of the Bill are consistent with the research to which I have referred.

Noble Lords have suggested that three years would be a more appropriate period of separation for divorce without consent than the two years provided in the Bill. However, I again make the point I referred to in Committee that such a period would be at variance with the current period for desertion. Clause 51 also abolishes the ground of desertion followed by separation for two years. As far as I am aware, no one has challenged that abolition. There is no place for such a ground if divorce can in any event be obtained after a separation of two years.

Accordingly, if your Lordships take the view that three years is a more appropriate period for divorce without consent, it may be necessary to reconsider whether the desertion ground ought to be retained. If the amendment were to be passed it would mean that a deserted spouse, far from being able to bring the marriage to an end after two years as is possible at present, would find that he or she had to wait a further year in circumstances in which they had been deserted and might be entirely without fault or blame themselves.

Desertion, as the Scottish Law Commission noted, has always been a difficult ground legally, because the attitudes and intentions of both parties are relevant, and its removal now, in the context of the reduction in the length of the separation periods that the Government propose, would simplify the law without causing hardship or difficulty.

On the basis of the considerable research undertaken by the Scottish Law Commission and the wide support given to it, while not advocating that the periods are necessarily fixed as the noble and learned Lord, Lord McCluskey, understood, it would seem to me that the balance that is struck in this measure is right. On that basis I suggest that the provisions as they stand in the Bill should remain unchanged.

The Earl of Selkirk

My Lords, is it necessary to maintain the provision for desertion if there is a two or three-year period? Is desertion a separate matter from living apart?

Lord Fraser of Carmyllie

My Lords, if the amendment were to be carried, because there is provision in Clause 51 which removes the ground of desertion, a deserted spouse would not be able to bring the marriage to an end after two years but would only be able to do so after three years.

Viscount Tonypandy

My Lords, I hope that your Lordships will forgive a Welshman for entering into the debate. Has the Kirk of Scotland commented on the proposals?

Lord Fraser of Carmyllie

My Lords, I am hot aware of any particular representation to the effect that as a church it is opposed to the proposals. However, I am aware that some sincere individual members of the Church of Scotland and a number of kirk sessions have expressed concern. I do not know the extent to which they have examined the careful reasoning which lay behind the Scottish Law Commission's proposals.

The Earl of Selkirk

My Lords, perhaps I may mention that I wrote to the Church of Scotland and did not receive a reply.

Lord McCluskey

My Lords, I am still slightly puzzled as to why the noble and learned Lord the Lord Chancellor, who is a Scot and is well known for his adherence to the church in Scotland, chose the interval between the Committee and Report stages to make his observations.

As the noble and learned Lord the Lord Advocate pointed out, the Scottish Law Commission consulted very widely. The noble and learned Lord has made plain to the House the results of that consultation. I ask myself what is the responsibility of Members of this House. I answer my own question in this way. First, the noble Earl, Lord Selkirk, was right to say that there are not enough Members in the House in order to obtain the opinion of the Whole House. Secondly, the noble and learned Lord the Lord Advocate is certainly right to point out the technical deficiency in relation to the matter of desertion.

The most important point for me is that this is a matter which ought to be determined, in my respectful view, by the elected House. No doubt the Government will allow the matter to be determined by a free vote by the Members of another place so that they can determine the matter in accordance with their responsibility. Accordingly, but principally for the last reason, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 214 not moved.]

Clause 53 [Homelessness due to risk of violence]:

Lord Carmichael of Kelvingrove moved Amendment No. 215:

Page 58, leave out from beginning of line 27 to ("after") in line 28 and insert:

1. ("(1) Section 24 of the Housing (Scotland) Act 1987 (definition of homelessness and persons threatened with homelessness) shall be amended as follows.
425
2. (2) After subsection (2) there shall be inserted the following subsec ion—
1. "(2A) A person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy.
2. (2B) Regard may be had, in determining whether it would be reasonable for a person to continue to occupy accommodation, to the general circumstances prevailing in relation to housing in the area of the local authority to whom he has applied for accommodation or for assistance in obtaining accommodation."
3. (3) In subsection (3),").

The noble Lord said: My Lords, the amendment has been suggested to us by Shelter (Scotland). I understand that the noble and learned Lord the Lord Advocate is reasonably sympathetic to it. Its purpose is to bring Scottish legislation for homeless people into line with the current English and Welsh legislation in so far as requiring local authorities to consider whether it is reasonable in all circumstances for a person who has accommodation to be classed as homeless or threatened with homelessness.

At Committee stage the Minister gave a firm commitment to come back to the amendment. He also intimated that it was the Government's wish: to bring Scottish legislation into line in this area"— [Official Report, 1/5/90; col. 975.]

I therefore invite the Minister to accept the amendment as fulfilling his stated object, or to bring forward an amendment which would satisfy the purpose of this amendment. I beg to move.

Lord Sanderson of Bowden

My Lords, I am grateful to the noble Lord for bringing forward the amendment. I said at the time that we would look carefully at the wording of the amendment. I am now happy that the wording of the amendment meets with our approval. Therefore I have pleasure in supporting the amendment.

On Question, amendment agreed to.

Lord McCluskey moved Amendment No. 216: After Clause 54, insert the following new clause: {"Facts not disputed at trial. .After section 26 of the Criminal Justice (Scotland) Act 1980 there s hall be inserted the following section —

Facts not disputed at trial.

"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 deputes, 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 specifed occasion—

1. (a) an accussed 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;
426
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 or 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 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: My Lords, it will not have escaped the attention of those who have attended assiduously the proceedings in connection with this Bill that my attitude has been largely negative hitherto. I have sought to change the Bill and to take things out, and preferably to take out the whole of Part II. However, I now have the opportunity to do something positive, and I seize it.

Despite the length and apparent complexity of what is proposed, the underlying concept is a simple one. When the prosecution in Scotland, as in England, comes to court the prosecutor gives notice to the accused person of the charge. To take a simple example, the charge might be that "You did on a certain occasion drive a car while under the influence of drink". The prosecution has then to prove, first, that the person in the dock was the driver and, secondly, that while driving he was under the influence of drink. The prosecutor may require four witnesses for the first point and three separate witnesses for the second. Therefore he brings seven witnesses to court but only one of the issues is challenged. Accordingly he either does not need four of the seven witnesses or he does not need three. The person says, "Yes, I was drunk but I wasn't driving" or "I was driving, but I wasn't drunk".

We have in Scotland, and have had for some time, a procedure whereby an accused person can admit certain facts. If they are admitted they do not require to be proved. The matter could be dealt with in that way. We have a very similar procedure under which the prosecutor and the accused can enter into a joint minute of agreement about certain facts. Those facts are then held to be established without further proof.

The problem is that in practice those procedures do not work as well as we hoped when they were introduced. In particular, it is often difficult in a busy world for the prosecution and the defence to make adequate contact before the case comes to court. Therefore, in order to safeguard a prosecution, the prosecutor has to bring to court large numbers of potential witnesses.

I do not know whether this figure is right or wrong—it cannot be far from being right—but the police say that 70 per cent. of the police officers who are brought to the courts in Scotland are not called to the witness box. Many of those police officers will sit all day in court waiting to be called having worked all night on the night shift. That is a scandal in a public sense, but there is an additional scandal in that they must be paid overtime while they sit smoking or getting angry in the courts' inadequate waiting rooms. It is not just police witnesses but all witnesses who are liable to find that happening to them.

I therefore propose that the burden should go on to the prosecutor. When the prosecutor serves an indictment—a formal complaint that will bring the matter to a trial before a jury—he should be entitled to specify distinct, discrete facts of the kind that are narrated on the second page of the amendment, such as the fact that an accused or any other person had possession of a specified article. One has in mind a knife, a bottle of whisky or dangerous drugs. I have listed there various matters which are extremely common in ordinary criminal practice.

The prosecutor must therefore think before the trial of the matters that might not be in dispute. The chances are that, through his police investigation, he will know perfectly well what matters will and will not be disputed, so he can propose those matters which are likely to be agreed. The inertia principle then comes into play. The defence has the responsibility, if it chooses to challenge those matters, to lodge a counter-notice saying no. It is perfectly entitled to do that under the clause and, if it does so, the matter can never be referred to again, so the prosecutor cannot found upon the failure of the defence to agree something or to challenge. If the defence says, "We do not want this to be treated as an agreed fact", that is out of the case and nothing has been lost or gained. However, the proposal requires the defence to think about what is in dispute. One can see that in a great many cases it would come back and say, "We are not bothered about facts A and B, but we're not agreeing anything else". There might be one witness, two witnessess or 20 witnesses.

I had considerable criminal experience in my ordinary practice when I returned to the Bar after serving as Solicitor General for Scotland until May 1979. I was anxious to get out of the criminal courts and back into the civil courts in order that I might earn an honest and substantially larger crust there. I was therefore always extremely anxious to agree as much as possible with the prosecution. When I tried to do so, I frequently found that I just could not get hold of the right prosecutor and could not even make arrangements to suit counsel, never mind the witnesses. I therefore want to introduce this system. I have urged it before. I have written to the Scottish Law Commission, which is considering this matter in general and I hope that the Government will look favourably upon the proposal.

In conclusion, I recall what the noble and learned Lord the Lord Advocate said in Committee. He said that the Scottish Law Commission is looking at the matter in a wider context. Of course it is but in my judgment —I have practised the law in one shape or form since 1949—this matter can be taken separately. If my new clause is defective, so be it. It does not matter. The Government have a vast array of talented draftsmen, some of whom have been flitting through the Box with worried looks on their faces as the Bill has progressed. They could turn their attention to what has been proposed and come forward with something similar. The person who would benefit most of all is the noble and learned Lord the Lord Advocate, because the police, who constantly raise the very point to which I referred earlier, would be delighted and he would no doubt earn due and proper plaudits for the measure. I commend the amendment to the House. I beg to move.

5.30 p.m.

Lord Macaulay of Bragar

My Lords, I support the principle and the detail of the amendment and endorse the view expressed by the noble and learned Lord, Lord McCluskey. The problem of obtaining agreement and the essential facts in the case before the trial starts has been with us in Scotland for many years. One of the problems is that the accused person is the arbiter of those matters and, if he says that he intends to agree nothing, then nothing is agreed.

The predecessor of the present Lord Advocate—the noble and learned Lord, Lord Cameron of Lochbroom—attempted to encourage co-operation between the prosecution and the defence by sending out a letter—I do not have a copy with me—encouraging the defence and the prosecution to get together to agree as many facts as they could so that police officers, doctors and others were not brought unnecessarily to court.

My experience corresponds with that of the noble and learned Lord, Lord McCluskey, in that, when making approaches to find out whether agreement could be reached, one was inevitably met with the response that the advocate depute had not yet read the papers for next week owing to pressure of work so the prosecutor who was to deal with the case was not in a position to agree or disagree.

As I see it, the clause makes a great deal of sense because the papers will have been through the prosecutor's hands, certainly in a High Court case, about three times. It will be simple for the procurator fiscal in the first instance and the advocate depute looking at the papers and deciding where the case is to go to extract from the case facts which can be readily agreed and served on a separate paper to the defence for its agreement.

Quite apart from the practicability and usefulness of the proposal and the saving of people's time and energy, there is also cost to be taken into account. The noble and learned Lord, Lord McCluskey, mentioned the cost of police officers, but many other people who are called to give evidence hang about the courts for days and are sometimes not in the end called, the matter is not disputed and it has been a complete waste of time, energy and money. Anything that helps to prevent people's time and energy being wasted and saves the public purse must be welcomed. I hope that the Government will welcome the new clause.

Lord Harris of Greenwich

My Lords, I make any statement on this amendment with considerable caution as I find myself among a number of Scottish lawyers who inevitably have a great deal more experience in the matter than I have. However, I should like to confirm what the noble and learned Lord, Lord McCluskey, said. A number of Scottish chief officers of police have complained to me about the totally unnecessary situation in which policemen are kept hanging around and are never called as witnesses. That is a significant drain on police manpower and a substantial cost to the public. It is not just a question of the police but of specialist witnesses. I recognise some of the difficulties confronting the noble and learned Lord the Lord Advocate, but the noble and learned Lord, Lord McCluskey, has made a powerful case which deserves serious attention from the Government.

Lord Fraser of Carmyllie

My Lords, the most complete answer in terms of admission of the facts that the Crown would always be pleased to receive would be a Section 102 letter containing a plea of guilty.

As the noble and learned Lord, Lord McCluskey, said, no one would be more relieved than myself if a satisfactory arrangement could be achieved whereby witnesses were not cited for court attendance. It would make the organisation of business much easier, and, as has been indicated, would ensure that police officers' time was not unduly wasted. Even more important, it would ensure that lay witnesses would not feel irritated and angered that they had been brought to court and then discovered that they were not truly needed. However, it must be stressed that the presence of police officers at the court, while they may not be called as witnesses, has a compelling effect in bringing forward the plea of guilty that would otherwise not be forthcoming if there was any suspicion that the witnesses who were necessary for the proof of the case by the Crown were not in attendance.

There are a number of ways in which the matter might be approached. I do not disagree that the line of approach taken by the noble and learned Lord, Lord McCluskey, might well be satisfactory. As the noble Lord, Lord Macaulay, indicated, my predecessor as Lord Advocate repeatedly urged the advantage of minutes of admission. Procurators fiscal were instructed that they should make every facility available for such minutes to be prepared.

The only real difficulty, which the noble and learned Lord, Lord McCluskey, anticipated, is that I do not consider that we should make some interim statutory provision at this stage. The Scottish Law Commission is currently considering the responses to its consultation on Discussion Paper No. 77 on affidavit evidence, hearsay and related matters in criminal proceedings. Following the Committee stage debate I arranged for this amendment to be brought to the attention of the commission. It confirmed that it will consider it as part of its work on the report. I understand that the commission hopes to be in a position to submit its report to me before the end of the year.

In reply to the noble and learned Lord, I must tell him that internally within the Crown Office under the chairmanship of the deputy Crown Agent there has been a considerable amount of work done on exactly the same matter that is proposed to be covered by his amendment. Discussion of these matters is at a fairly advanced stage and I shall shortly undertake consideration of what is achievable. It may be possible to achieve a number of the matters put forward by the noble and learned Lord without resort to a statutory provision. In that context I should like to look further at the matter.

I appreciate that the wheels of law reform are seen from time to time to grind unduly slowly. I can only reiterate that I am convinced that it would be preferable to wait for the considered recommendations of the Scottish Law Commission. I share the desire to tackle the problem of the waste of time of witnesses.

While in the law of Scotland as in the law of England the onus is on the Crown to prove its case beyond reasonable doubt and the presumption of innocence is in place, it will always be the responsibility of the Crown to have the evidence available to achieve that end. An article which appeared in this month's edition of the Journal of the Law Society of Scotland has been brought to my attention. The article is signed by someone who describes himself as Quintillian (who he is I know not). I am bound to say that although it is a very interesting article it indicates rather gloomily, I think, that—as he puts it: Almost always there is scope for the prosecution and the defence to reach substantial agreement on important facts … Yet the undisputed facts are rarely admitted by formal minutes. That the absence of such concessions is a lost opportunity to save an enormous amount of time for courts, lawyers, witnesses and others is self evident. But no one would criticise the principle, based on fairness, which places the onus on the Crown to prove its whole case. The defence are entitled to test every element in it and they have no duty to make proof of guilt easy for the Crown". If that is a general attitude, it will no doubt be appreciated that if the provision that the noble and learned Lord has put forward were adopted its success would not be as great as both he and I would like to see. This has been a useful debate. I hope that the noble and learned Lord, notwithstanding his earlier comments, will agree with me that it should be done in the context of the wider work of the Scottish Law Commission.

5.45 p.m.

Lord McCluskey

My Lords, in relation to the last point, there have been cases—and I have been involved as a prosecutor, counsel for the defence and a judge in such case—in which the Crown case has failed because, owing to some highly technical reason or some accident such as illness of a witness at the last moment, the Crown has failed to provide a point which was essential but which was never in dispute.

I do not know who Quintillian is and I do not have much regard for the observation that he has made. No principle of fairness requires that a prosecution brought in the public interest should fail simply because at the last moment a matter which was never going to be disputed, and which in fact for all practical purposes was going to be admitted, is not established owing to some accidental circumstances of that kind. So I do not find that that is a respectable argument at all.

The noble and learned Lord the Lord Advocate began by saying that the presence of vast numbers of police officers sitting around in the sheriff court or the High Court or wherever helps to bring forward the plea of guilty. It may or it may not. That has nothing to do with the point that I am making, which is that in those cases in which the plea is to be not guilty the case should concentrate on the issues that are in dispute. That is therefore not a respectable answer to my point.

The noble and learned Lord the Lord Advocate referred to the fact that the pace of law reform moves exceedingly slowly from time to time. Indeed it does. I have been advocating this particular matter for years. As a Law Officer I did not enjoy the advantage possessed by the noble and learned Lord the Lord Advocate to bring forward a massive Bill, 100 pages long, with numerous clauses and a Long Title so wide that a coach and horses could be driven through it. We were given very limited opportunities to legislate. Otherwise I should certainly have urged this measure upon the House during the 1970s.

It is not a question of making interim provision. I believe that this measure is complete in itself. It would work. It would work like the clause for which I successfully argued some years ago and got into the Criminal Justice Act 1980, which allows proof of routine matters in a certain way by a rather similar procedure. I believe that it would work. I believe that it is worth while doing on its own.

But it is not a matter on which this House should vote against the Government and I leave the matter on the basis that I am sure that the noble and learned Lord the Lord Advocate, when he thinks carefully about this matter and discusses it with his colleagues in the Crown Office (and indeed with the Law Commission) will realise that this is something that can be done. He may come forward with an amendment in suitable words, without any technical defects, in the other place and then at last we shall have in the Bill something that is worth having. I beg leave to withdraw this amendment.

Amendment, by leave, withdrawn.

Clause 55 [Detention under the Mental Health (Scotland) Act 1984]:

Lord Fraser of Carmyllie moved Amendment No. 217:

Page 62, line 42, at end insert: ("() In section 56 (3) of that Act (appointment by sheriff of acting nearest relative), after paragraph (c) there shall be inserted the following paragraph — (d) that the nearest relative is unsuitable to act as such.".").

The noble and learned Lord said: My Lords, in moving this amendment I speak also to Amendment No. 219. These amendments are purely drafting amendments. I beg to move.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 218:

Page 62, line 47, at end insert: ("() In Part I of Schedule 2 to that Act (hospital order without restriction and transfer from prison without restriction), in paragraph 7 (b) after the word "26", there shall be inserted "26A, ".").

On Question, amendment agreed to.

Clause 56 [Appointment of acting nearest relative]:

Lord Fraser of Carmyllie moved Amendment No. 219:

Leave out Clause 56.

On Question, amendment agreed to.

Lord McCluskey moved Amendment No. 220: After Clause 56, insert the following new clause:

("Factory and commission or power of attorney

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 subsections (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 I 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 applied 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: My Lords, once again I come to the House in a highly positive mood. On this occasion I ask noble Lords to approve an amendment which will introduce into our law something which is very necessary. I am the chairman of a body called the Scottish Association for Mental Health which is concerned with mental health problems in Scotland. In association with Scottish Action on Dementia we sponsored a discussion paper entitled Dementia and the law: the challenge ahead, which was published in December 1988. It was concerned principally with the legal aspects of problems that arise when a person who for reasons of mental illness, including in particular dementia, is no longer capable of managing his own affairs.

That discussion paper drew attention to the fact that the law at present is highly unsatisfactory. It suggested a number of amendments. I have no doubt that the Government are considering the proposed amendments to the law and the system which that document espouses. However, in the course of the document we drew attention to the fact that when a person in Scotland grants a power of attorney that power of attorney endures for as long as and no longer than that person remains in possession of all his mental faculties. If he or she becomes the victim of dementia or of any of the other episodic mental illnesses such as schizophrenia or the like, the power of attorney that has been granted lapses. So in the very circumstances in which it is most likely to be needed, it ceases in the law, in the judgment of most lawyers in Scotland, to be effective. Of course, that is not the position in England where under the legislation on powers of attorney of, I think, 1985 the power of attorney endures.

This new clause has been drafted by a colleague in the Scottish Action on Dementia, Dr. McCreadie, and I have revised it. It proposes to make that limited change: namely, to ensure that when the granter of a power of attorney, granting it in the prescribed form and stating expressly the intention that the power of attorney will ensure beyond any period of subsequent mental incapacity, that power of attorney will still endure. Of course, powers are given to protect the power of attorney, and in order to protect the state and the court they have a role in relation to these matters. The Secretary of State has a role under subsection (6) of the new clause because the Secretary of State will make regulations which prescribe the form in which the power of attorney has to be made and attested and the like.

I believe that this would be valuable. No doubt I shall be told, as we were in Committee, that the Scottish Law Commission is examining the matter. I wrote, I think, in December 1988, to the chairman of the Scottish Law Commission, Lord Davidson, and received an answer to that effect. However, once again this is a matter which in my judgment can be separated out from the many issues that will no doubt form the subject of a Scottish Law Commission report. I urge the Government in this case also to approach the matter positively to see whether or not there exists here an opportunity to do good in a limited way. It will be much appreciated not just by lawyers but most of all by those persons—and many of us fall into this category —who have parents, relatives, friends who have fallen victim to dementia or other mental illness. We have seen the problems that may arise. In the confidence that this is a matter of some value and that the Government will respond positively, I beg to move Amendment No. 220.

Lord Fraser of Carmyllie

My Lords, as I indicated at Committee when the same amendment was moved by the noble and learned Lord, Lord Morton, I have considerable sympathy with the intention behind the amendment. I entirely appreciate the difficulties that the noble and learned Lord has so eloquently set out as arising in such cases. I have previously indicated that I thought it would be preferable to await the recommendations of the Scottish Law Commission which is considering the matter as part of its fourth programme of law reform. I mentioned comparatively recently my interest in it and that I agreed with it. It may be that the attitude that I have taken on these matters is too conservative in wishing to ensure that the law is not amended in a piecemeal fashion or a fashion that makes the achievement of the longer term reform more difficult.

I say to the noble and learned Lord that I should like more time to consider whether, as he suggest, the matter can be, to adopt his wording, "separated out" from other consideration of work on judicial factors. If I am satisfied that it can be separated out, I shall look carefully at introducing an amendment at a later stage.

Lord McCluskey

My Lords, I am happy to hear what the noble and learned Lord the Lord Advocate said. I shall take up no further time on the matter, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Fraser of Carmyllie moved Amendment No. 220A: After Clause 59, insert the following new clause:

("Liability in respect of services to injured persons Future services to injured person. 1982 c. 53

—(1) For subsection (2) of section 8 of the Administration of Justice Act 1982 (services rendered to injured person) there shall be substituted the following subsections —

"(2) The injured person shall be under an obligation to account to the relative for any damages recovered from the responsible person under subsection (1) above.

(3) Where, at the date of an award of damages in favour of the injured person, it is likely that necessary services will, after that date, be rendered to him by a relative in consequence of the injuries in question, then, unless the relative has expressly agreed that no payment shall be made in respect of those services, the responsible person shall be liable to pay to the injured person by way of damages such sum as represents —

1. (a) reasonable remuneration for those services; and
2. (b) reasonable expenses which are likely to be incurred in connection therewith.

(4) The relative shall have no direct right of action in delict against the responsible person in respect of any services or expenses referred to in this section. "

(2) Without prejudice to Parts II and III of the Prescription and Limitation (Scotland) Act 1973, this section shall apply to rights accruing both before and after the date appointed for its coming into force, but shall not affect any proceedings commenced before that date.").

The noble and learned Lord said: My Lords, during Committee stage I gave an assurance to the noble and learned Lord, Lord Morton of Shuna, that my right honourable friend the Secretary of State would give urgent consideration to recommendations of the Scottish Law Commission on whether an amendment would be necessary to the Administration of Justice Act 1982 following the decision in the recent case of Forsyth's Curator Bonis V. Govan Shipbuilders which was reported in 1989 Scots Law Times. On the question of whether, in a reparation action for negligence, damages can be awarded to the claimant for necessary services to be rendered to an injured person, it was held in that case that such damages could only be awarded in respect of services rendered to the injured person for the period before the award.

That decision meant that there was no equitable solution attainable in Scotland, unlike England and Wales, to meet the case of future quantifiable loss of earnings incurred by spouses or relatives who had to give up work to nurse and tend injured persons.

The Scottish Law Commission, in a report to my right honourable and learned friend took the view that the objectionable feature of the Forsyth's Curator Bonis case was the apparent requirement for an express agreement in relation to payment for future services. It proposed that in future such agreements should no longer be required. This amendment stems from its consideration of the matter.

As a result of the amendment, in any action for damages by an injured person quantification of claims for services to be rendered by others—usually the spouse or other relative who has given up work to be able to do this—to that injured person will be admissible and need not depend on any express agreement in relation to payment for such future services.

I should like at this point to thank the noble and learned Lord, Lord Morton, for his efforts in raising this matter and also the Scottish Law Commission for its rapid consideration. The wheels certainly did not grind slowly on this occasion. I beg to move.

Lord McCluskey

My Lords, on behalf of the noble and learned Lord, Lord Morton of Shuna (who is absent on judicial business today), I wish to welcome the positive response by the Government to what has been proposed here. This is a thoroughly useful piece of law reform, albeit rather limited, and I am happy that the Government have been able to respond positively. Let us hope that they can make a similar response in relation to other matters that we have raised in the same spirit.

On Question, amendment agreed to.

Clause 60 [Finance]:

Lord Fraser of Carmyllie moved Amendment No. 221:

Page 65, line 24, leave out ("Confirmation Practitioners") and insert ("Executry Services").

The noble and learned Lord said: My Lords, in speaking to Amendment No. 54, I spoke to Amendment No. 221. Amendment No. 222 has been withdrawn. I spoke also to Amendments Nos. 223, 224 and 225. I beg to move.

On Question, amendment agreed to.

Schedule 1 [Scottish Conveyancing and Confirmation Practitioners Board]:

[Amendment No. 222 had been withdrawn from the Marshalled List.]

Lord Fraser of Carmyllie moved Amendments Nos. 223 to 225:

Page 67, line 3, leave out ("CONFIRMATION PRACTITIONERS") and insert ("EXECUTRY SERVICES").

Page 67, line 7, leave out ("Confirmation Practitioners") and insert ("Executry Services").

Page 67, line 19, leave out ("confirmation") and insert ("executry").

On Question, amendments agreed to.

Lord Fraser of Carmyllie moved Amendments Nos. 226 to 228:

Page 68, line 35, after ("invest") insert ("and borrow").

Page 68, line 35, leave out ("and").

Page 68, line 37, at end insert: ("; and (d) to apply sums received by them in respect of fees towards repayment of any grant made to them by virtue of section 14 (2) of this Act.").

The noble and learned Lord said: My Lords, in speaking to Amendment No. 57 I also spoke to Amendments Nos. 226, 227, and 228. I beg to move these amendments en bloc.

On Question, amendments agreed to.

Lord Fraser of Carmyllie moved Amendments Nos. 229 to 234:

Page 69, line 28, leave out ("a confirmation") and insert ("an executry").

Page 69, line 31, leave out ("a confirmation") and insert ("an executry").

Page 69, line 34, leave out ("a confirmation") and insert ("an executry").

Page 69, line 37, leave out ("a confirmation") and insert ("an executry").

Page 69, line 39, leave out ("confirmation") and insert ("executry").

Page 69, line 45, after first ("of") insert ("(a)").

The noble and learned Lord said: My Lords, in speaking to Amendment No. 54 I spoke also to Amendments Nos. 229 to 234. I beg to move en bloc.

On Question, amendments agreed to.

Lord McCluskey had given notice of his intention to move Amendment No. 235:

Page 69, line 45, leave out ("services by or on behalf of a conveyancing") and insert ("or executry services by or on behalf of a conveyancing or executry").

The noble Lord said: My Lords, I think that this amendment should have been dropped. Accordingly, I do not wish to move it.

[Amendment No. 235 not moved.]

Lord Fraser of Carmyllie moved Amendments Nos. 236 and 237:

Page 69, line 45, at end insert; ("; or (b) executry services by or on behalf of an executry practitioner."). Page 70, line 1, leave out ("conveyancing").

The noble and learned Lord said: My Lords, I spoke to Amendments Nos. 236 and 237 when moving Amendment No. 54. I beg to move these amendments.

On Question, amendments agreed to.

[Amendment No. 238 not moved.]

6 p.m.

Lord Fraser of Carmyllie moved Amendment No. 239:

Page 70, line 8, leave out ("Confirmation Practitioners") and insert ("Executry Services").

On Question, amendment agreed to.

[Amendment No. 240 had been withdrawn from the Marshalled List.]

Schedule 3 [Judicial Appointments]:

Lord McCluskey had given notice of his intention to move Amendment No. 241:

Page 71, line 24, leave out ("5") and insert ("15").

The noble and learned Lord said: My Lords, everything that I had intended to say in respect of the amendment was said when dealing with Amendment No. 175. Accordingly, I do not seek to move Amendment No. 241 and when asked I shall not move Amendment No. 242.

[Amendment No. 241 not moved.]

[Amendment No. 242 not moved.]

Lord McCluskey moved Amendment No. 243:

Page 71, leave out lines 36 to 39.

The noble and learned Lord said: My Lords, I wish to make certain suggestions in relation to Amendments Nos. 243 and 244, which are amendments to Schedule 3, which can be found on page 71 of the Bill.

Amendment No. 243 relates to an intention to introduce an amendment to the Court of Session Act 1988 which will change the law which has existed since at least 1819. The present law provides that when a division of the Appeal Court sits in the absence of the Lord President or the Lord Justice Clerk, the two chairmen of the two divisions, the senior judge present presides over the gathering of judges which constitute the Appeal Court. It is proposed that in future the presiding judge shall be designated by the Lord President. I do not like that idea because in a small court it is slightly invidious to select one person and say, "You will preside". If such a person is selected on six or 10 occasions in succession but then is not selected, it will appear as though the Lord President has decided that he has fallen out of favour. That may not be entirely desirable. I have spoken to many of my colleagues about the proposal and they are not enthusiastic.

We should not tinker in this fashion with the appeal system in the Court of Session. Until 1948 the court consisted of two divisions of the Inner House (the two Appeal Courts), with a total of eight judges; that is four in each court. One Appeal Court was presided over by the Lord President and the other by the Lord Justice Clerk. There were five judges in the Outer House who sat at first instance with or without a jury. The two appeal divisions heard appeals from the five judges, from all the sheriff courts and from one or two tribunals. Since 1948 there have been two divisions consisting of four judges in each, although they now sit in threes and not in fours. There are now 15 judges in the Outer House; the number of criminal cases has at least quadrupled; the number of sheriffs has doubled; and the number of tribunals has grown out of all recognition. Therefore, the burden of work upon the Appeal Court is substantial.

In my judgment it is important that the Government should come to grips with the situation and consider the creation of an extra division which would sit almost permanently. At present extra divisions are sitting frequently and teams of judges are being scraped together for that purpose.

That is the important matter about which the Government should be thinking. They should not be including a provision of this kind, no matter who is in favour, merely to tinker with the question of who sits in the chair. That will cause nothing but ill feeling and bad blood. In due course I shall speak about Amendment No. 244 and I shall make certain suggestions. No doubt the current issue can be taken on board with any further thinking. In order not to prevent any discussion I beg to move the amendment. However, ultimately I intend to seek leave to withdraw it.

Lord Fraser of Carmyllie

My Lords, I shall respond briefly to the noble and learned Lord's remarks. I heard clearly what he said about the extra division and agree that an extra division sits almost permanently in order to deal with either civil or criminal cases.

He spoke of what might be the invidious character of a senior person being passed over and another brought in to chair the division. I hope that my explanation may go some way towards allaying the concerns of those who were worried about that prospect.

Paragraph 4 (2) (a) of Schedule 3 was inserted at the request of the Lord President, following consultation with the Lord Justice Clerk, in the interests of flexibility and the efficient dispatch of business in the Inner House of the Court of Session. To reduce delays further in the Inner House, it is considered necessary to plan ahead over a considerable period by making provision for the sitting of extra divisions, while at the same time maintaining extra sittings of the Criminal Appeal Court when the first and second divisions are not sitting on criminal appeals. The noble and learned Lord is a senior member of the judiciary and will know more about the matter than I. However, I am advised that the key to sensible planning of extra divisions over a long period into the future is to identify the chairman around whom each sitting can be arranged. This is necessary to ensure that they are kept off circuit duties which would prevent them from taking the chair when required. If the senior judge present always had to preside. I am advised that it would be difficult to maintain that system.

It is not intended that a senior judge should be replaced by another because he was not thought to be up to the task, but it is merely to allow for longer-term planning in the arrangements of the court. On that basis it appears to be a sensible arrangement and therefore it is included in our proposals.

Lord McCluskey

My Lords, it is not right that I should further express my views on the merits of the provision at this stage. I am sure that such an opportunity will be given to me and to all the judges in the fullness of time. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McCluskey moved Amendment No. 244:

Page 71, leave out lines 40 to 45.

The noble and learned Lord said: My Lords, on Tuesday evening I informed your Lordships that I did not intend to move Amendment No. 176 with which this amendment was linked. It was to leave out Clause 27 (2). I added that the argument that I had intended to raise could also be raised in relation to Amendment No. 244 and that I should develop it at this stage. However, since then the noble and learned Lord the Lord Advocate and I have discussed the problem and I have decided not to press for a full debate at this stage. I merely wish to outline the difficulty which Clause 27 (2) and paragraph 4 (b) of Schedule 3 have occasioned.

As I explained briefly to the Committee on 2nd April (col. 1192 of the Official Report) , the judges in the Court of Session are divided into two categories. The Inner House consists of two divisions, each of which contains four judges. The first division is presided over by the Lord President of the Court of Session and the second division by the Lord Justice Clerk. Fifteen other judges sit in the Outer House and they each sit alone as a judge of first instance. From time to time judges of the Outer House are brought in to join others in one of the two divisions or to make up an extra ad hoc division when the volume of appellate work, including criminal appeals, renders it necessary to have three appeal courts. As I said, that happens very frequently nowadays, as the volume of appeal business has become very substantial indeed.

Since at least 1820, wherever a vacancy occurred in the Inner House—the appeal part of the Court of Sessions—other than a vacancy in the office of the Lord President or the Lord Justice Clerk, the vacancy was filled by a senior judge in the Outer House; that is, by the judge with the longest service on the Court of Session Bench in the Outer House. The Bill provides that in future the Lord President and the Lord Justice Clerk are to select an Outer House judge for promotion. There is now a provision in the Bill for consultation.

In Committee my noble and learned friend Lord Morton of Shuna and I explained our own interest as judges who would be directly affected by the proposed change and I hope that it it unnecessary for me to repeat what was said then.

I do not propose to challenge the underlying principle; namely, that an Outer House judge should be chosen for promotion and that accordingly promotion on the strength of seniority alone should cease. However, I must say that all the Outer House judges serving as such at present—and I personally consulted every one —are either totally opposed to the principle underlying the change or view it with distaste for reasons on which my noble and learned friend Lord Morton of Shuna touched in Committee. There are two exceptions to that general statement and I am one of them.

It is widely felt that in its operation it could be invidious and cause resentment. In a small country like ours those dangers might outweigh such advantages to be gained by promotion in that fashion. However, it is recognised—and I certainly acknowledge it—that circumstances have changed since the Second World War and certainly since the early part of the 19th century. In particular, judges of the Inner House for the past three or four years have been paid more than a judge of the Outer House. I believe that until 1986 all judges except for the two chairmen were paid the same.

Secondly, as I said in relation to the previous amendment, the increase in the number of those serving as Outer House judges has increased from five to 15 since 1948, which is very important. During that time the number of judges in the Inner House has remained at eight so that the chances of promotion on the basis of seniority are diminishing very substantially. That means also that some very capable judges may never be promoted to the Inner House at all. Those circumstances has persuaded me that choice should replace seniority as the basis of promotion to the Inner House.

That leaves for decision the method whereby the choice is to be effected. The alternatives appear to be, as in the Bill, selection by the Lord President and Lord Justice Clerk accompanied by a degree of consultation and, secondly, selection by the person who in Scotland is the Minister of Justice; namely, the Secretary of State. That method would correspond broadly to what happens in England and Wales where the Lord Chancellor acts as a Minister of Justice in recommending people for promotion to the Court of Appeal and the House of Lords. Judges in Scotland do not favour that second alternative.

The third alternative is that there should be selection by the judges themselves; namely, the serving judges should somehow find a way of choosing who among their number should be promoted. However, few of the judges feel any enthusiasm for election and there is no agreement among the Outer House judges as to how, otherwise, such a selection could be made.

The fourth method is selection by a mechanism or mechanisms not yet discussed or identified. That fourth point raises the subsidiary but important point that the judges of the Outer House have not been formally consulted on this matter by anyone other than myself. As the Bill has yet to go through another place, there is obviously time for such consultation and consideration so as to be sure that the Bill, when it finally receives Royal Assent, contains the best method of selection which we can devise. If necessary, the present proposal could be dropped from this Bill and reintroduced in the next suitable Bill. However, I have every confidence that the timetable for the present Bill should allow time for a full consultation to allow us to adopt the least invidious method for selecting judges for promotion over their more experienced colleagues.

The constitutional dimension to this, which I mentioned in Committee, is that the judges of the Inner House constitute for almost all purposes the final criminal court of appeal in Scotland. There is an anxiety, not confined to the Outer House judges, that the persons who preside as chairmen in the two divisions should not be allowed to choose which judges are to sit alongside them in case, through time, the divisions should come to exhibit too many of the perspectives of the chairmen who have selected those to sit beside them.

I hope that I need hardly add that the two chairmen at present—the Lord President and the Lord Justice Clerk—are held by us all in the highest regard. The point is not personal, but is a matter of long-term constitutional propriety as to the correct method of promotion to be adopted. I understand that in England the chairmen of the various appeal courts do not determine who is to be promoted to sit alongside: them. We should think long and hard before we adopt a different system.

In due course I propose to ask the leave of the House to withdraw the amendment. However, I hope that what I have said will enable the Lord President, the Lord Justice Clerk and the Government to stimulate discussion with the judiciary and perhaps with others as to what is the best method to adopt in order to ensure that we arrive at a method of selection which commends the widest possible assent. I beg to move.

6.15 p.m.

Lord Fraser of Carmyllie

My Lords, I am grateful to the noble and learned Lord for the way in which he presented his amendment on this important matter. It must be clear that in present circumstances and in view of the changes which the noble and learned Lord so carefully outlined, it is right that the element of automaticity in the existing arrangements for the appointment of Inner House judges is no longer appropriate. A change is clearly required if the policy is to be adopted that in respect of each judicial vacancy the best fitted individual for that vacancy is selected.

That policy has applied to all other judicial vacancies and as far as I am aware the principle underlying that policy is generally accepted. In those circumstances, with respect, there appears to be little doubt that a change is required to the existing provisions.

A change in respect of the appointments procedure for the Inner House judges which the Government have brought forward in this Bill followed consultations with the Lord President and the Lord Justice Clerk and was announced in answer to a Parliamentary Question in December of last year in another place. The present provisions of the Bill meet the criterion that the best fitted judge can be appointed to fill a vacancy in the Inner House. I am not sure whether it is possible, while meeting that criterion, to develop some adjustment to the proposed machinery which would make for a better provision. The range of options is relatively limited. We have considered two of the first three alternatives outlined by the noble and learned Lord of appointment by the recommendation of the Secretary of State and that of election. The noble and learned Lord has already outlined the difficulties about those options as well as the dislike expressed about them.

I listened very carefully to what I say, with the greatest respect, has been presented with admirable and magisterial detachment by the noble and learned Lord in circumstances which are undoubtedly difficult for him as the senior Lord Ordinary in the Outer House. The Government would be willing to examine any further option which might appear to be a better alternative than has hitherto been identified to the existing procedure.

In the meantime, however, on the basis that the principle underlying the new provision is correct and that the status quo is not acceptable, while we will listen carefully—and we will carefully consider any new proposals which may come forward —I should appreciate the noble and learned Lord doing as he indicated and withdrawing the amendment.

Lord McCluskey

My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Fraser of Carmyllie moved Amendment No. 245:

Page 71, line 43, leave out ("the Lord President") and insert ("them").

The noble and learned Lord said: My Lords, at Committee stage I accepted Amendment No. 270A tabled by the noble and learned Lords, Lords Emslie and McCluskey, which provides that, prior to the Lord President and the Lord Justice Clerk appointing a Lord Ordinary to the Inner House, the Lord President is required to carry out such consultation with judges as appears to him to be appropriate in the particular circumstances. I indicated, however, that I would examine further the point that, although the appointment is made jointly, the requirement to consult applies only to the Lord President.

While the Lord President is the senior judge, it would indeed seem rather anomalous in a situation where the Lord President and the Lord Justice Clerk jointly make an appointment that the requirement to consult apply to the Lord President alone. This amendment therefore provides that the consultation requirement applies to both the Lord President and the Lord Justice Clerk. I beg to move.

On Question, amendment agreed to.

[Amendment No. 246 not moved.]

Schedule 4 [Applications for Childrens Certificates]:

Lord Sanderson of Bowden moved Amendment No. 246A:

Page 73, line 38, at end insert:

1. (".—(1) On any application for the grant of a children's certificate in respect of only part of any premises, the licensing board may require a plan of the premises to which the application relates to be produced to it and lodged with the clerk.
2. (2) A plan produced and lodged in accordance with this paragraph shall be such as will enable the board to ascertain to which part of the premises it is proposed the certificate should relate.").

The noble Lord said: My Lords, I spoke to this amendment earlier this afternoon. I beg to move.

On Question, amendment agreed to.

Schedule 6 [Amendment of Enactments]:

Lord Sanderson of Bowden moved Amendment No. 247:

Page 86, line 23, leave out paragraph 4.

The noble Lord said: My Lords, in moving Amendment No. 247 I speak also to Amendments Nos. 248, 249, 251, 252, 256 and 256A.

This group of amendments makes provision for an applicant for a licence to quote either his home or business address or the address of his agent in his application form. This meets the concern expressed on behalf of the licensed trade that the present requirement of providing only the home address of the applicant places the applicant's home at risk of vandalism or burglary. These amendments constitute a positive crime prevention measure which aims to respond in practical terms to the anxieties of applicants and potential applicants for licences. I beg to move.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendments Nos. 248 and 249:

Page 86. line 35, leave out from beginning to ("at") in line 36 and insert ("In section 16 (persons who may object to licence applications) — (a) in subsection (1),"). Page 86, line 38, at end insert ("; and (b) in subsection (3), after "made, " there shall be inserted the words "or, in the case of the agent of an applicant, shall be his place of business. ";").

On Question, amendments agreed to.

Lord Macaulay of Bragar moved Amendment No. 250:

Page 87, line 22, leave out paragraph 9.

The noble Lord said: My Lords, this is a short amendment relating to the licensing laws, the effect of which would be to leave out paragraph 9 at page 87. It deals with the granting of occasional licences which at the present time can only be granted for one day. The Government's present amendment would extend the period of that occasional licence for 14 days.

The amendment is intended to leave matters as they stand in relation to occasional licences on the basis that there has been no evidence produced that there is a need for the creation of an extended period for such licences, which would enable each day of the licence to be justified and examined by the granting authority. I beg to move.

Lord Sanderson of Bowden

My Lords, the effect of this amendment would be to leave unclear the issue of whether, where an occasional licence is applied for in respect of an event lasting several days taking place outwith a licensee's premises, the licence is chargeable on a daily basis. Some licensing boards have taken that view founded on the wording: such hours and on such day as the board may determine". Other boards have interpreted the grant of occasional licences to cover the period of an event and have charged a single fee. The majority of those consulted favoured the application of only one fee in respect of an occasional licence covering the whole period of the event and the Government have accepted that view.

I believe that that clarifies the situation and was something which was sought. I hope that the noble Lord, in the light of that explanation, will withdraw the amendment.

Lord Macaulay of Bragar

My Lords, I am grateful to the Minister for that reply which clarifies the reason behind the amendment. In those circumstances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Sanderson of Bowden moved Amendment No. 251:

Page 87, line 23, at beginning insert ("(a)").

On Question, amendment agreed to.

Lord Sanderson of Bowden moved Amendment No. 252:

Page 87, line 25, at end insert: ("(b) in subsection (9) there shall be added at the end the words "but the board shall not cause to be published the address of the applicant if the applicant provides the name and address of an agent through whom he may have intimated to him any objections.").

On Question, amendment agreed to.

Lord Macaulay of Bragar moved Amendment No. 253:

Page 87, line 26, leave out paragraph 10 and insert: ("10. In subsection (2) of section 34 of that Act (occasional permissions to sell alcoholic liquor) for the word "four" there shall be substituted the word "eight".").

The noble Lord said: My Lords, this is another short amendment relating to the provision of occasional licences. The effect is to substitute in Section 34 (2) of the Act the words "eight" instead of "four". The effect would be to give a generous increase in the availability of occasional permissions for voluntary organisations. I beg to move.

Lord Sanderson of Bowden

My Lords, the effect of this amendment, as with the amendment to paragraph 9 which related to occasional licences, would be to leave unclear the issue of whether, where an occasional permission is applied for in respect of an event lasting several days, the permission is chargeable by the licensing board on a daily basis. The same arguments apply: Paragraph 10 of the schedule seeks to remove any confusion about permissions covering events lasting more than one day and to provide that only one permission is required in respect of any event lasting up to 14 days. We consider that this provision, together with the existing provision in Section 34 (2) which allows a voluntary organisation up to four permissions a year, is fully adequate to meet the needs of such organisations. The amendment would leave the law in an uncertain position in relation to events lasting more than one day and would double from four to eight the number of occasional permissions which could be granted to a voluntary organisation in any one year. As far as we are aware there is no demand for such an increase providing the present wording of Section 34 (1) is amended as proposed in paragraph 10.

In the light of this explanation, I hope that the noble Lord will be prepared to withdraw the amendment.

Lord Macaulay of Bragar

My Lords, once again I am grateful to the Minister for his answer in response to the amendment. Since the explanation was the same, my response will be the same. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Macaulay of Bragar moved Amendment No. 254:

Page 87, line 38, leave out ("an occasional or") and insert ("a").

The noble Lord said: My Lords, this is the third of three similar amendments and will no doubt be dealt with in the same way. The objective behind this amendment is to exclude occasional extensions from the scope of the proposed subsection. Since the two-year limit applies for reapplication in respect of a person who might have applied for an occasional extension and been refused for a minor reason such as the premises not being suitable for the event, it would mean that that person would be debarred from returning and reapplying within the two-year period. That would constitute a degree of unfairness. I beg to move.

Lord Sanderson of Bowden

My Lords, under Section 14 of the 1976 Act, a licensing board may not entertain an application for a new licence for premises within two years of having refused a similar application for those premises unless it makes a direction to the contrary when it issues its first refusal. That two-year embargo does not apply to occasional or regular extensions of permitted hours which can be applied for at each quarterly meeting of the board.

Representations have been made that this freedom to resubmit applications only three months after a refusal creates considerable difficulty and expense for local residents and others. The Government have accepted the view that an embargo should be imposed unless at the time of refusing the application the board makes a direction to the contrary. Repeated applications for occasional extensions of permitted hours, which can relate to dates several months in advance, can be just as troublesome and annoying to local residents as regular extensions and we see no justification for treating occasional extensions any differently.

Lord Macaulay of Bragar

My Lords, I am grateful for that reply, as I was in relation to the previous amendments. I am sure the noble Lord's words will be noted by those affected by this legislation. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 255 not moved.]

6.30 p.m.

Lord Sanderson of Bowden moved Amendment No. 256:

Page 88, line 13, at end insert: (". In section 139 (interpretation), after subsection (4) there shall be inserted the following subsections — (5) Any requirement under this Act to cause to be published the address of—

1. (a) an applicant in respect of any competent application made to a licensing board;
2. (b) an employee or agent of an applicant who is not an individual natural person; or
3. (c) a person who is to be the holder of a licence under Part III of this Act, may be satisfied by causing to be published the address of his agent and the clerk of a licensing board shall cause to be published the address of the agent rather than the address of any person mentioned in paragraphs (a) to (c) above if so requested by that person.

(6) Any requirement in this Act to intimate anything to an applicant may be satisfied by so intimating to his agent".").

On Question, amendment agreed to.

Lord Sanderson of Bowden moved Amendment No. 256A:

Page 88, leave out lines 14 to 22.

On Question, amendment agreed to.

[Amendments Nos. 257 and 258 had been withdrawn from the Marshalled List.]

Lord Fraser of Carmyllie moved Amendment No. 259:

Page 89, line 31, leave out ("a confirmation practitioner") and insert ("an executry practitioner or a recognised financial institution providing executry services").

The noble and learned Lord said: My Lords I spoke to this amendment with Amendment No. 54, I beg to move.

On Question, amendment agreed to.

Lord Macaulay of Bragar moved Amendment No. 260:

Page 92, leave out lines 35 to 38.

The noble Lord said: My Lords, this amendment deals with the question of the preparation of writs for moveables in the law of Scotland. At present Section 32 of the Solicitors (Scotland) Act makes it an offence for unqualified persons to prepare writs and papers relating to certain matters, including the transfer of heritable and moveable property, writs relating to court proceedings and writs upon which to found or oppose an application for confirmation as an executor.

The government amendment to that Act in Schedule 6. 29 (5) (a) purports to remove the words "or moveable" from Section 32 (1) (a) of the Solicitors (Scotland) Act. In effect, it amounts to what has been described as the decriminalisation of that Act; that is, that an unqualified person may prepare any writ relating to moveable estates. That will mean that persons without proper qualifications may draw all the category of writs which purport to create or transfer rights in and to moveable property.

Items which are physically moveable are deemed legally moveable, such as money, clothing, machinery, vessels, vehicles and aircraft and the fruits or income of such moveables. Debts and undertakings to pay are also moveable, as are shares in corporations, claims of damages, government stocks, patent rights and copyrights.

Accordingly, it is clear that the area which has been affected by the Government's amendment is that in which the interests of people may be adversely affected by bad or shoddy workmanship on the part of an unqualified person. It is important that the preparation of deeds relating to moveable property, including documents of title, contracts or deeds of sale, contracts of consumer hire and consumer credit under the Consumer Credit Act 1974, assignations and deeds of donation and deeds of family arrangement would also be included. It goes without saying that these and many other forms of moveable goods are of the greatest importance to the individual concerned and that the persons affected by the preparation of writs should be properly protected by having a qualified person looking after their affairs.

The second amendment in Schedule 6, paragraph 29 (5) (b), means that at the end of the day employed persons receiving a salary would be able to prepare these writs. Unfortunately, there is no restriction on the nature of the employed person and, while this amendment might have been properly brought forward to permit the employees of institutions who wish to undertake that type of work or the employees of professional or other bodies who wish to undertake that and court work to do so, these bodies are not referred to in the amendment. The amendment leaves an open house for anybody without any knowledge whatever to prepare moveable writs for money. It opens the door to anyone to set himself up as a person who can deal with these various and difficult areas of the law.

If it is the intention of the Government to keep this within the specified categories of new practitioners set up in the Bill, that is understandable; but at present what I call the open house for the preparation of these writs by anyone is asking for severe trouble. It would be to the severe detriment of anyone affected by misdemeanours on the part of an unqualified person. There would be no indemnity or fund to pay the person who has perhaps been deprived of large sums of money. I beg to move.

Lord Fraser of Carmyllie

My Lords, I shall deal separately with the two effects of this amendment. 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 the risks involved in using someone who is not a solicitor can be evaluated according to normal commercial criteria and the choice of adviser made accordingly. By removing this monopoly we are not surrendering any essential protection for consumers.

The House has already approved the extensive provisions regulating those who in future will be permitted to provide conveyancing services relating to heritable estate. I hope the noble Lord will appreciate that a comparable need for consumer safeguards does not arise in relation to moveable estate. Indeed, no consumer representatives have voiced objections to this provision.

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, involve proformas or even computer-generated writs and raise no issues which require the use of a solicitor.

The amendments to the 1980 Act are limited to two categories of unqualified person: first, an employee of a corporate party (including a company director) who prepares a summons or writ for that corporate party and, secondly, a person who is permited 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, say, an adviser from the citizens advice bureau.

As matters stand an individual in business on his own account may raise court proceedings on his own behalf without employing a solicitor. A company or other corporate body should also be able to do so. There seems to be little justification in maintaining a situation whereby it is an offence for an employee to raise proceedings on behalf of his employers.

In light of what I have said I hope that the noble Lord will accept that the proposed amendment would be restrictive and is prepared to withdraw it.

Lord Macaulay of Bragar

My Lords, I am obliged to the Lord Advocate for that explanation. Although I do not have the Act with me at the moment, I recollect that there is not in fact a monopoly for the preparation of moveable writs in the Solicitors (Scotland) Act because an unqualified person, provided he does not ask for a fee, could prepare some of these writs. Therefore, there is an open door. In reading the Act I found that surprising.

The Government may not have had any consumer representations so far and I readily accept the necesssity in modern times to allow companies and their authorised employees to take court proceedings on behalf of the company. That is fair. Of more concern to me and others is the dealing with other people's property. I do not want to be pessimistic about the outcome, but it may be that the Government will receive more consumer representations when the Bill comes into force. In the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Sanderson of Bowden moved Amendment No. 261:

Page 93, line 1, leave out ("a confirmation practitioner") and insert ("an executry practitioner or a recognised financial institution providing executry services").

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 262

Page 93, line 8, after ("Tribunal)") insert ("—

1. (a) after paragraph (b) there shall be inserted — " (ba) the Dean of the Faculty of Advocates; and
2. (b)")

The noble and learned Lord said: My Lords, this amendment is grouped with Amendment No. 263 which has been tabled in the names of the noble and learned Lords, Lord McCluskey and Lord Morton of Shuna. As they cover the same point I trust it will not be necessary for the noble and learned Lords to move their amendment. I beg to move.

On Question, amendment agreed to.

[Amendment No. 263 not moved.]

Lord Fraser of Carmyllie moved Amendment No. 264:

Page 93, line 28, after ("court)") insert ("— (a)").

The noble and learned Lord said: My Lords, in moving this amendment it might be for the convenience of the House if I speak also to Amendments Nos. 265 and 266.

The aim of these amendments is to provide the Court of Session with a power to revoke a solicitor's rights of audience in the Supreme Court where those rights have been acquired under Clause 21 of the Bill. As noble Lords will be aware, the court already has a number of disciplinary powers over solicitors which it can invoke in cases of professional conduct. These powers are augmented by these amendments. The use of such powers may be appropriate in cases where the solicitor's misconduct extended only to his Supreme Court work and rendered him no longer an acceptable representative before the higher courts. To maintain consistency with the other sanctions available to the court, the third of these amendments provides for the solicitor in question to apply to the court for an order restoring his revoked rights of audience. Noble Lords will note that this corresponds exactly with the court's existing order-making power in relation to solicitors it has struck off the roll. I beg to move.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendments Nos. 265 and 266:

Page 93, line 29, leave out ("paragraph") and insert ("paragraphs").

Page 93, line 32, after ("or") insert: ("(bb) revoke any right of audience so acquired by him; or"; and (b) after subsection (3) there shall be inserted the following subsection — (3A) A solicitor whose rights of audience under section 25A have been revoked in pursuance of an order made by the court under subsection (1) may apply to the court for an order restoring those rights, and the court may make such order.".").

On Question, amendments agreed to.

Lord Fraser of Carmyllie moved Amendment No. 266A:

Page 93, line 32, at end insert: ("() In subsection (1) of section 63 (penalties and time limit for prosecution of offences) —

1. (a) for the words "level 3" there shall be substituted the words "level 4"; and
2. (b) the words from "and to imprisonment" to the end shall cease to have effect.").

The noble and learned Lord said: My Lords, this amendment is grouped with Amendment No. 268D and I shall speak to both. This amendment makes certain changes to the Solicitors (Scotland) Act 1980 in the interests of providing a level playing-field between solicitors and conveyancing or executry practitioners. Accordingly, the maximum fine for offences committed under the 1980 Act is raised from level 3 on the standard scale to level 4; namely, from £400 to £1, 000. This, as noble Lords will be aware, brings it into line with the financial penalty for offences under Part II of the Bill.

The second leg of the amendment has been tabled in response to a number of amendments tabled both in Committee and on Report by the noble and learned Lord Morton who sought to provide a penalty of imprisonment for conveyancing or executry practitioners, ostensibly to bring the sanctions available against them into line with those available against solicitors. This amendment achieves that objective by removing the penalty of imprisonment from the relevant section of the 1980 Act. I hope, therefore, that the amendment meets with the approval of the noble and learned Lords who sought to level the playing-field in the other direction. I hope the House will agree that provision in the 1980 Act was somewhat archaic and that consistency between the two sets of provisions is better provided in the terms of this amendment.

Perhaps I may take this opportunity to clear up one or two other points which were raised in our discussion on Tuesday evening concerning the question of penalties for offences. The noble and learned Lord McCluskey, when moving Amendment No. 99, raised the question of whether provision should be made for dealing with offences committed by bodies corporate. Having looked at Section 31 of the 1980 Act, which makes such provision in relation to bodies corporate consisting of solicitors, and Section 36 of the Administration of Justice Act, which deals with the same point in relation to licensed conveyancers, I would like to take this matter away and consider it further with a view to making any necessary amendments in another place.

The question was also raised by the noble Lord, Lord Macaulay, in moving Amendment No. 100, about whether it would be appropriate to introduce solemn procedure for offences under Part II of the Bill. I do not think that that would be appropriate. Summary procedure has served perfectly well in relation to offences committed by solicitors or others under the 1980 Act and I see no reason to depart from the precedent. I hope, albeit a little late, that that clears up the point to the noble Lord's satisfaction. I beg to move.

Lord Macaulay of Bragar

My Lords, I shall not oppose these amendments. At this stage I shall simply express my concern that the question of imprisonment has been removed altogether. There are ways of levelling playing fields. As I have a level playing field it would be unfair to ask the Government to leave imprisonment in force for solicitors. Personation or impersonation —whatever the correct word is —of practitioners is a very serious offence. I find it extraordinary that it shall be dealt with by way of a fine when the acts of a person can have grievous effects on a person's estate. A person may be left penniless whereas the perpetrator of an evil deed in respect of another person's money gets away with a fine of up to £1,000. I express my concern at this stage, but I do not oppose the amendment.

On Question, amendment agreed to.

[Amendment No. 267 not moved]

Lord Fraser of Carmyllie moved Amendment No. 268:

Page 94, line 38, at end insert:

("The Criminal Justice (Scotland) Act 1980 (c. 62)

29A. — (1) For section 76 of the Criminal Justice (Scotland) Act 1980 (presumption as to the contents of containers) there shall be substituted the following section —

"Presumption as to contents of container.

76. Section 127 of the Licensing (Scotland) Act 1976 shall apply for the purposes of any trial in connection with an alleged contravention of any provision of this Part of this Act as it applies for the purposes of any trial in connection with an alleged contravention of any provision of that Act. "

(2) Nothing in this paragraph shall apply to the prosecution of any person for an offence committed before the commencement of this paragraph.").

The noble and learned Lord said: My Lords, in speaking to Amendment No. 204 I also spoke to this amendment. I beg to move.

On Question, amendment agreed to.

6.45 p.m.

Lord Fraser of Carmyllie moved Amendment No. 268A:

Page 95, line 6, at end insert:

("The Representation of the People Act 1983 (c. 2)

Section 42 (3) (b) of the Representation of the People Act 1983 (nomination paper in local election to contain statement of acceptance of office) shall cease to have effect.").

The noble and learned Lord said: My Lords, in moving this amendment it may also be convenient to speak to Amendment No. 268E. This amendment simply removes a minor superfluous provision in the Representation of the People Act 1983.

On Question, amendment agreed to.

Schedule 7 [Repeals]:

[Amendments Nos. 268B and 268C not moved.]

Lord Fraser of Carmyllie moved Amendment No. 268D:

Page 98, line 18, at end insert ("In section 63 (1), the words "and to imprisonment for a period not exceeding one month".")

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 268E:

Page 98, line 41, at end insert; ("1983 c.2. The Representation of the People Act 1983. Section 42(3)(b).")

On Question, amendment agreed to.

In the Title:

Lord Fraser of Carmyllie moved Amendment No. 269: Line 3, leave out ("to regulate") and insert ("having functions in connection with").

The noble and learned Lord said: My Lords, in speaking to Amendment No. 54 I spoke also to Amendments Nos. 269 and 270. I beg to move.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 270: Line 4, leave out ("confirmation") and insert ("executry").

On Question, amendment agreed to.