AS AN AMENDMENT TO COMMONS AMENDMENT NO. 178 (Hansard, 25 October 1990)

§ Lord McCluskey
My Lords, I beg to move Amendment No. 178A. I welcome Amendment No. 178. My memory must be playing me false because I recall drafting the clause, which must have stood in the name of my noble and learned friend Lord Morton of Shuna, together with Dr. MacReadie of the Mental Welfare Commission. We did so in order to give effect to a recommendation of a report of which Dr. MacReadie was the author. He approached me in my capacity of chairman of the Scottish Association for Mental Health, so I thought that I was the author. However, whoever was the author—whether it was myself or my noble and learned friend—it is a matter of regret to me that when the matter was dealt with in another place the Minister made no acknowledgment of the antecedents of the clause. He simply moved it into the Bill saying that it was necessary. I thought that there was a lack of proper gratitude to those who had done the work and I hope that in concluding the noble and learned Lord the Lord Advocate will put the matter right.
As regards Amendment No. 178A, the words "for the removal of doubt" are intended to emphasise the point that there is doubt. The current law is by no means certain and for that reason I or my noble and learned friend Lord Morton moved an amendment during the Bill's earlier proceedings. There is only one Outer House decision in which there is an obiter dictum to the effect that this is not competent. In other words, the power of attorney fails with the incapacity of the person who has granted the power. However, it is not important to insist upon that.
In relation to Amendment No. 178B I thought it desirable that the Court of Session should have power in ordinary petition proceedings to hold a factory to 1653 be at an end or the power of attorney to cease to that effect from any particular date. It would have been better if that had been provided for specifically. Of course I accept that it would be possible to proceed by way of petition to the nobile officium and I believe that the court would probably treat an application as being competent.
Moved, That Amendment No. 178A, as an amendment to Commons Amendment No. 178, be agreed to.—(Lord McCluskey.)

§ Lord Morton of Shuna
My Lords, as regards the authorship of the original amendment, I have a clear recollection of moving it. Equally, I have a clear recollection that it was handed to me by my noble and learned friend Lord McCluskey, who was unable to be present on that day. Perhaps that clears up any question as regards the copyright of the amendment.
I should have thought that there is a considerable element of doubt as to what happens on mental incapacity. Amendment No. 178 has a great deal of sense in it. I encourage the noble and learned Lord the Lord Advocate not to restrict his anxiety as to the simple and straightforward only to cases where the Law Commission of Scotland is already looking into a problem but to try to be simple and straightforward in all legislation which is being put forward. Without any disrespect, that would be a pleasant change from the legislation which we have had to consider.
I should have thought that there was a great deal of sense in putting in Amendment No. 178A in the name of my noble and learned friend Lord McCluskey. It would make the matter clear in case judges should ask what is the point of this, because that is already the law. With respect to my noble and learned friend Lord McCluskey, I do not believe that there is a necessity for Amendment No. 178B. However, I thank the noble and learned Lord the Lord Advocate for his responsibility in introducing Amendment No. 178 and I hope that he will accept Amendment No. 178A.

§ Lord Fraser of Carmyllie
My Lords, I am delighted that the matter of authorship has been satisfactorily settled and I am happy to acknowledge the true author in this matter. However, I am not happy to accept the proposal that Amendment No. 178A should be included. I have some difficulty in believing that, given this provision and its background, there will be any difficulty in interpretation should the matter appear before any of the other senators of the College of Justice who are not present this evening.

§ Lord McCluskey
My Lords, I hesitate to comment upon that last observation. I beg leave to withdraw the amendment.