HL Deb 24 May 1990 vol 519 cc1050-9

12.40 p.m.

Read a third time; an amendment (privilege) made.

The Lord Advocate (Lord Fraser of Carmyllie)

My Lords, I beg to move, That the Bill do now pass. This has been a demanding Bill dealing with matters of considerable substance.

I have been grateful for the general support that your Lordships have given to Part I of the Bill which introduces for the first time in Scotland provisions for the supervision of charities. Undoubtedly the area which has caused most concern to your Lordships' House is the question of how best to disclose the principal purposes of a charity to members of the public. Many noble Lords have spoken on the desirability of this and I have made clear that the Government fully recognise the need for members of the public to be able to discover the charitable purposes of any recognised body. It is for that reason that Clause 1 requires bodies to make available copies of their founding deed or explanatory document. Clause 4 similarly requires them to make available their accounts, including a report of their charitable activities over the financial year. As I have emphasised on several occasions, the power of the Revenue to disclose the names and addresses of the bodies recognised by them provides the key for the public, and for myself, to discover what are the charitable objects of any recognised body.

At Report stage I recognised the potential market for a directory of purposes of Scottish charities, particularly for the benefit of grant-seeking individuals and organisations. As I explained, the Scottish Office and Inland Revenue will assist the SCVO in obtaining information from recognised bodies so that a first directory can be prepared within the voluntary sector. Your Lordships welcomed that as a positive step.

A further matter of concern was the question of exemptions. Certain exemptions have been made for charitable companies which must meet the higher requirements of the companies legislation, and for educational endowments which are already governed by the provisions of the education Acts. In general, the legislation requires all bodies established in Scotland which claim to be charitable to register with the Inland Revenue and to comply with the full requirements of the Bill.

The Government have indicated that we wish to adhere to that arrangement which was strongly advocated on behalf of Scottish charities by the SCVO. However, there is one exception. Deep concern was expressed by many noble Lords about the apparent scope or conflict between Church and state which might arise through requiring all charities, including those formed for the advancement of religion, to comply with the provisions of the Bill and making them subject to my supervision and control in the event of mismanagement. I have emphasised to your Lordships that the Government have no desire to become involved in the control of established religious denominations, but we are concerned that unscrupulous people might seek to avoid control by setting up organisations ostensibly for the advancement of a religious objective. I have given an assurance to the House that this question is being urgently addressed and that an amendment will be brought forward in another place.

Since introduction, substantial amendments have been made to Clauses 8 and 9 of the Bill which now provide an alternative to the cy pres procedures for trusts wishing to reorganise. The provisions of Clause 9, which enable small chartiable trusts to amalgamate or reorganise without recourse to a court of law, will be particularly welcomed by the many small trusts which are unable to put funds to effective use because of the procedural and financial obstacles placed in their way.

Part I of the Bill will thus provide access to information as to which bodies are recognised as charitable, and access to their accounts. I am empowered to investigate abuse and to go to court to prevent it or remedy it. Trustees are given new rights to reorganise and amalgamate. This should lead to better use being made of funds locked up in small and obsolescent trusts. These are positive measures which should enhance respect for the very worthwhile work undertaken by charities. I commend Part I of the Bill to your Lordships.

It is Part II of the Bill which has given rise to most debate and which has changed most since Second Reading. In saying that, I do not in any sense wish to understate the importance of other parts of the Bill. I am pleased that the proposals have engendered some extremely productive discussions.

I am grateful to noble and learned Lords who contributed to our discussion in Committee on the provisions relating to executry services. I believe that Clause 17 of the Bill now fulfils the Government's aim of encouraging greater choice for the use of executry services while at the same time affording a proper degree of protection. On the conveyancing provisions, too, significant improvements have been made. Clearer signals have been given that conveyancing practitioners will be regulated by a code of conduct and I have assured your Lordships' House that the code will be made only after wide consultation with appropriate persons and bodies.

The clauses in the Bill relating to rights of audience have benefited from the accumulated expertise and wisdom of your Lordships' House in such matters. In Clause 22 in particular the helpful amendments and interventions of the noble and learned Lord, Lord Emslie, have resulted in significant improvements. His unrivalled knowledge of the practice and procedure of the Scottish courts has been brought to bear in a most productive fashion and I am grateful to him for his constructive approach. The level playing field featured again in that clause. I am now satisfied that a workable structure is in place which will allow solicitors the opportunity to develop their pleading powers to the full while at the same time ensuring that their rules derive from common principles—in relation to matters such as ensuring representation for all clients—as do those of advocates.

There remain one or two matters which the House discussed at Report stage with which my right honourable friend the Secretary of State for Scotland proposes to deal in another place. These include the question of whether there should be a power for the Lord President and the Secretary of State to revoke any practising rights acquired under Clause 23. The Secretary of State will also consider whether it would be appropriate for the Lord President and the Secretary of State to have a power, acting jointly, to require a review of a particular conduct rule. He will also be giving consideration to the question of what publicity should be given to applications for practising rights under that clause.

Part II of the Bill now provides in a refined way for the extension of the right to provide legal services and therefore increases the range of choice potentially available to the customer. Appropriate safeguards arc maintained. Indeed, the bulk of Part II comprises the safeguards rather than the simple extension of the right to provide services. None of this will diminish the standing of the legal profession. Indeed, I believe that that standing will be enhanced.

In Part III of the Bill, dealing with liquor licensing, we have considered the various provisions fully. In the light of the consideration which the House has given to the details of some of them, a number of very useful amendments have again been made. The Government have considered carefully the many contributions to the debate from all quarters. Where we have concluded that we are not able to agree to changes in the Bill we have generally done so on the basis of the outcome of the comprehensive consultation exercise which we undertook in the preparation of the Bill.

For example, in the case of the Sunday opening of public houses the Bill does not propose any change to the present hours, namely from 12.30 to 2.30 and from 6.30 to 11 o'clock. We recognise that these are more limited opening times than those for hotels and. in the light of the amending provisions in the Bill, for off-licences, but we have concluded that the balance of the argument nevertheless remains on the side of no change. In this respect we have had regard to the outcome of the consultation exercise which showed that an overwhelming majority of those who expressed a view were in favour of no change. The Government believe that that clear expression of opinion should be respected, not least because of the traditional view that Sunday afternoon is a time of peace and quiet which ought not to be at risk of disruption from the opening of public houses, many of which are in residential areas.

A second issue where we have considered the arguments very carefully is on appeals to the sheriff against refusals of extensions of permitted hours on days other than Sundays.

The Bill contains new and more precise criteria for the grant and refusal of extensions to permitted hours and we shall draw those to the attention of all licensing boards. Again, having regard to the results of our consultation exercise, which showed that a clear majority were opposed to the introduction of a right of appeal on that point and that decisions need to be based on detailed local knowledge, we have concluded that the provisions in the Bill strike the right balance as they stand.

We have also had an important debate, stretching over both Committee and Report stages, on the question of supervision of alcohol sales by young persons, in off-licence premises. There is, I think it is fair to say, a consensus in the House that the problem of under-age drinking in Scotland is serious and that all practical steps need to be taken to deal with it In the light of the debate in Committee, however, we were persuaded that there was not a strong case for different regimes for supermarkets from other shops and we introduced appropriate amendments at Report stage. If the provisions in the Bill in due course become law, we have however made it clear that we shall consider amending legislation urgently if it appears that there is in practice a significant problem of sales to under-age persons through supermarkets.

On 17th May, noble Lords concluded that the Bill should not be amended. To those who remain concerned about the provisions, I should say that I have every confidence that chief constables will ensure that, if enacted, the new powers of arrest, about which the noble Lord, Lord Macaulay, was concerned, are exercised with great care and with due regard to the understandable sensitivities of members and of club management.

The package of reforms in Part III of the Bill and the associated schedule build on the licensing structure set up in the 1976 Act. It makes a number of significant improvements based on practical experience of the operation of the existing provisions over the last 14 years; and your Lordships' House has made a significant contribution to the further improvement of the licensing regime during the passage of the Bill.

The final package in the Bill consists of miscellaneous provisions. The provisions in the Bill setting in place 100 per cent, government funding of probation supervision, social inquiry report provisions and aspects of parole supervision are a significant step forward in enabling offenders to be dealt with within the community. Improving and expanding those services in accordance with agreed national standards will improve the level of service available to the courts and will encourage them to have confidence in disposals which are intended to provide offenders with practical help and supervision.

Part IV also contains provisions which will allow the courts greater flexibility when dealing with offenders who have defaulted in payment of fines imposed by the court; and there are enabling provisions to set up a unit fine experiment to allow courts to relate fines more closely to an offender's ability to pay. All those proposals have the common objective of reducing the prison population to those for whom imprisonment is clearly appropriate.

The inclusion in the Bill of provisions to allow Scotland to take a full part in the fight against the evils of drug trafficking has been welcomed. The Government continue to attach priority to taking all possible steps to deter those who deal in drugs and the provisions in the Bill will ensure that those people will find no haven in Scotland.

I am also pleased that it has been possible to take advantage of the Bill to amend homelessness legislation. The changes that we have made will be of benefit particularly to people at risk of violence from someone formerly residing with them.

The UNCITRAL model law on international commercial arbitration is given the force of law in Scotland. Schedule 5 to the Bill sets out the procedures which will apply to international commercial arbitrations which take place in Scotland. I am glad that Scotland will be joining those other countries which, by adopting the model law, are making the helpful model law procedures generally available. At Second Reading the traditional criticisms of miscellaneous provisions Bills were made, but I observed that that did not prevent a number of new clauses being tabled on a wide range of issues by those who originally voiced the criticisms. I was glad to accept a number of them, recognising that they will be valuable in various areas; for example, mental health and judicial factors.

Our deliberations have been wide ranging and have covered important areas of Scottish legislation. Your Lordships have given their customary careful and deliberate scrutiny to our proposals. On such Bills, it is sometimes thought that only Scottish Peers are entitled to contribute to the debates. I should like to disabuse anyone who suffers under that misapprehension. Anyone who chooses to contribute to our debates and improve the law of Scotland is more than welcome to do so. I thank all noble Lords for their contributions. I commend the Bill to the House.

Moved, That the Bill do now pass.—(Lord Fraser of Carmyllie.)

Lord Macaulay of Bragar

My Lords, those of us who have been involved in the consideration of this extensive and, as the noble and learned Lord the Lord Advocate said, exhausing piece of legislation are probably glad to have reached this stage in the Bill, which covers many aspects of legal and social reform for Scotland. As was anticipated at the outset and as the noble and learned Lord indicated, being a miscellaneous provisions Bill its Long Title became longer by the day. For that reason alone, we are glad to have reached this stage. The Title must be one of the longest currently on the statute book.

We on this side of the House welcome the changes in the charities law to catch, if possible, unscrupulous people who deal in charities. Among the other social aspects of the Bill outlined by the noble and learned Lord the Lord Advocate, we also welcome the control of young people gaining access to alcohol and so on, and the efforts to reduce the prison population.

In so far as it deals with legal matters, the Bill is to some extent a mirror image of the Courts and Legal Services Bill applicable to England and Wales and, like that Bill, it was met at the start with a barrage of judicial and legal hostility. One problem of any radical reform is that the parties who see themselves or their institutions threatened or affected by the legislation sometimes stay too close to the event itself and do not take time to stand back and ponder and think about what is going on rather than launch into an all-out assault. Given some of the contributions which have been made in this House on both Bills, I wonder whether, when people read what they have said, they will consider that they might have made a more proper approach to the Bill; but that is a matter for each individual.

Only time will tell whether the Bill, in relation to the law, was necessary and whether it will improve the legal system, but it recognises, as I do from this side of the House, that there is now within society a large body of persons who, with their education and training, are or will be capable of representing themselves and others in the court process. It is correct that they should be allowed at least the opportunity to do so, subject to the safeguards of adequate training and the application of an appropriate code of conduct to all parties appearing in court. Those provisions are strongly built into the Bill as it now stands.

It is always useful to remind ourselves and others that the courts and the legal processes are not the sole property of the judges and lawyers. The legal system is for the benefit and protection of the citizen and the safeguarding of his or her rights. We have a better educated and more articulate population now than in former days when perhaps only the lawyer could have articulated the problem for the individual. The opening up of the courts to people other than lawyers reflects that advance in society.

It is unfortunate that the Bill did not deal with access to courts in the shape of legal aid. Although the Bill is a miscellaneous provisions Bill, legal aid is probably one of the few things not included, apart from being in one clause. However, as I understand the position, eligibility is being reviewed at the moment and we shall no doubt come to that matter in due course as it causes great concern in the legal profession.

We on this side of the House welcome many of the positive reforms and recognise the consideration given by the Government in the shape—if that is the correct phrase—of the noble and learned Lord the Lord Advocate and the noble Lord, Lord Sanderson of Bowden, to the many amendments moved to the Bill. However, although I hold no brief for the publicans of Scotland, I am bound to say that they still harbour a severe sense of grievance about being excluded from Sunday afternoon opening when every other place which sells alcohol is apparently to be allowed to sell it.

All amendments tabled from this side of the House were tabled with the aim of improving the Bill, as we set out to do, in the earlier stages. We hope that that has been achieved and that the Bill is the better for the consideration that it has received in your Lordships' House.

I must express disappointment that the Government did not accept the amendments to abolish the iniquitous domestic warrant sales which we discussed during the Committee stage and to limit police entry to the clubs (the amendment was put forward at Report stage). However, those are issues which will be raised in another place and no doubt will be discussed again in this Chamber.

I noted that when the noble and learned Lord the Lord Advocate was discussing this part of the Bill he inadvertently referred to a power of arrest rather than to a power of entry. I hope that that is not a portent of things to come. The chief constables will no doubt note his words with interest.

The law is a never-ending tale of change and advance as time goes by. It is encouraged by the excellent and positive work of the Scottish Law Commission. No doubt another miscellaneous provisions Bill will make its way into the House in a few years' time.

I should like to put on record our thanks to the various bodies and institutions which have taken an interest in the Bill and brought forward positive amendments for consideration. On most occasions those amendments were rejected but in other cases they found acceptance or at least were considered.

It is interesting that the Law Society of Scotland responded positively and helpfully, as did the Faculty of Advocates, and, so far as it is possible to find a satisfied lawyer, there appears to be silence on those two fronts at the moment. The Bill has set the framework for the future and we await its implementation with interest.

To conclude I should like to congratulate the noble and learned Lord the Lord Advocate on his consideration and courtesy in steering this particular ship through what were at times stormy and tempestuous waters. He accepted criticism. I must say that at times some of it was almost on a personal level, which went very close to contravening what I understand to be the traditions of your Lordships' House. The noble and learned Lord guided the Bill through its very difficult stages with dignity. He concentrated on the issues rather than be side-tracked by any such perceived attacks upon himself. I do not for one moment suggest that they were meant to be personal attacks. I merely observe how they were perceived on this side of the Chamber. I may be wrong and, if so, no doubt I shall be corrected.

The noble and learned Lord the Lord Advocate and the Minister, the noble Lord, Lord Sanderson of Bowden, conducted the passage of the Bill in a responsive manner which made life for us all that little bit more pleasant than it might have been.

1 p.m.

Lord Mackie of Benshie

My Lords, I should like to say that it has been a great privilege for a layman such as myself to watch the legal luminaries of Scotland at work. I have a very high opinion of them, though obviously not as high as they have of themselves.

The Bill concerns itself with the improvement of the law in Scotland. Personally I am grateful to the noble and learned Lord for having done something about the two amendments which I brought forward at other people's behest. Throughout the passage of the Bill he has shown great willingness to accept that Members of the House have a contribution to make to this miscellaneous collection of legal matters.

There are two matters with which I am a little disappointed, or perhaps I should say I am a little fearful of their effect. One is the effect on the rural lawyers of Scotland who for a long time have provided a form of legal aid because of the money that they collect from conveyancing. I know that we have been promised that that matter will be carefully monitored, but monitoring often comes too late. I hope and trust that the scheme for producing non-legal conveyancers will fall flat on its face, which is the hope of many other people. In this case I believe that competition has come into the legal profession, to a very large extent owing to previous Bills, and it appears to me to be unnecessary and a little dangerous.

I must say that the incursion of the English lawyers into a Scottish debate in order to make a purely political point about war crimes trials seem to me to be wholly regrettable. The matter should have been debated under the War Crimes Bill and not have arisen under a Scottish miscellaneous provisions Bill. We look forward to next Monday when that matter is debated once more.

This has been an interesting Bill and I am sure that it will be useful. I join with the noble Lord, Lord Macaulay, in congratulating the noble and learned Lord the Lord Advocate on his performance. I am sure that he has come out of the experience a better and wiser man.

Baroness Carnegy of Lour

My Lords, I shall say a few very brief words about two particular aspects of the Bill in which I have taken a special interest. I believe that it will be a considerable improvement to Scots law when ordinary people are able to obtain more information about what charities exist and who runs them. By definition charities are excused from income and corporation tax so in a sense they are contributed to by all taxpayers as well as by those who give money to them and raise money for them direct. It seems to me helpful and right that information will become more accessible. I hope that very soon a truly informative list of charities will be made available from whatever organisation is nominated to perform that service.

I believe also that the reforms about how lawyers will operate are very much in the interests of all Scots who find themselves needing to use the law. This House has considerably improved the Bill in that respect. I am particularly grateful to my noble and learned friend the Lord Advocate for the way in which he has responded to amendments which I moved on behalf of organisations representing consumers, especially in relation to what happens when a person buys or sells a house.

As time goes on ordinary people, I am sure, will find that conveyancing services become more keenly priced and more user friendly. To that extent I disagree a little with my noble friend and neighbour Lord Mackie of Benshie. At the same time I am extremely glad that the Government have given an undertaking to watch the effect of the new competition on solicitors. Like the noble Lord, Lord Mackie, I believe that that is a very important aspect of the changes in conveyancing. We need local lawyers and if some aspects of the Bill threaten their presence in our country towns, something has to be done about it.

The passage of the Bill through this House has been somewhat unusual in that by far the majority of amendments, and indeed the main political opposition to the Bill, seemed to come not from the Opposition Benches but from the Cross-Benches. At times one wondered whether in fact the main Opposition party was not a lot more in favour of the Bill than it always made plain. I am sure that that will become clear when the Bill reaches another place, when the Cross-Benches are not there.

Lord Carmichael of Kelvingrove

My Lords, I hope that the noble Baroness will forgive my intervention. I am assuming for the sake of accuracy—and perhaps she will confirm it—that she means political with a small 'p' and not a large 'P'.

Baroness Carnegy of Lour

My Lords, at times I was not absolutely sure how large the "p" was on the Cross-Benches. The noble Lord, Lord Macaulay, rightly reminded us that the law and courts are not the property of lawyers but the property of all the people of Scotland. I am sure that as the Bill proceeds that will become clearer in another place than at times it was here.

That having been said, many useful changes have been made as a result of proposals from all sides of the House. Those changes have been accepted by the Government. My noble and learned friend has proved himself to be a listening Lord Advocate and, by implication, we have a Secretary of State who is a listening Secretary of State for Scotland. I thank both my noble and learned friend and my noble friend on the Front Bench for all their hard work. I must express appreciation also of the hard work of the Benches opposite. I believe that we have improved this Bill and when it emerges from another place it will be of very great benefit to the people of Scotland.

On Question, Bill passed and sent to the Commons.