COMMONS AMENDMENTS (Hansard, 25 October 1990)

§ Lord Fraser of Carmyllie

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 114 and 115. I should also like to speak to Commons Amendments Nos. 116 and 117, Motion No. 116A and Amendment No. 117A as an amendment to Commons Amendment No. 117. Commons Amendments Nos. 114 and 115 are the result of undertakings given in this House. Commons Amendments Nos. 116 and 117 are drafting points.

Commons Amendment No.114 removes the requirement that the Council of the Law Society makes rules "establishing" the order of precedence of the supreme courts and replaces it with a requirement that they do so by "stating" it. This drafting amendment reflects the view expressed in this House that it was not appropriate for the council to be establishing the order of precedence of the supreme courts since that was more properly a matter for the courts themselves and most particularly the Lord President of the Court of Session.

Commons Amendment No. 115 replaces the requirement that the council secures representation for a person wishing to be represented by a supreme court solicitor where possible with one that they do so where reasonably practicable. That is because a requirement that they do so where possible might have proved to be more onerous than had been intended. For example, it might be possible for a solicitor with supreme court rights of audience to travel overnight to Inverness from Dumfries, leaving his client in the sheriff court to undertake a criminal trial. It is a different matter whether such course of action is reasonably practicable. The purpose of this amendment is therefore to avoid placing a duty on the council which it might be theoretically able to fulfil but which in practical terms was too onerous.

I should have thought that Commons Amendments Nos. 116 and 117, which are drafting amendments, would have met with the approval of the noble and learned Lord, Lord McCluskey, but I shall listen to what he has to say.

Moved, That the House do agree with the Commons in their Amendments Nos. 114 and 115. —(Lord Fraser of Carmyllie.)

Lord McCloskey

My Lords, I think that Commons Amendment No. 114 is an improvement and I welcome it. It derives from the debates in this House. Commons Amendment No. 115 is slightly more than a drafting amendment but it is an improvement and the improvement derives from the critical analysis of the provision when the Bill was before this House on a previous occasion. Those two improvements illustrate a point which I sought to make earlier; namely, that part of the function of this House is to improve a Bill by suggested revisions to the text.

Commons Amendment No. 116 wishes to insert "or body" after "person". Your Lordships should have before you the Bill itself. It will be seen that in Clause 22, which deals essentially with the rights of audience 1575 for solicitors and the role of various persons, two persons are mentioned: the Lord President of the Court of Session and the Secretary of State for Scotland. The only other creature (if that is the correct word) to appear there is the Council of the Law Society of Scotland.

I believe that the Council of the Law Society of Scotland is the body which is referred to in this amendment. No doubt the Lord Advocate could confirm that. However, I presume that the words "or body" intended to cover the council. In the clause the council has duties to make certain rules under subsections (4), (5), (6), (9) and (10). It also has a function to put the names of qualified solicitors, that is to say, qualified to appear in the High Court and the Court of Session, on a certain roll.

Subsection (12) reads: The Council may"— I note the word "may" because usually the word in this clause is "shall"— bring into force the rules submitted by them to the Secretary of State under subsection (10) with the exception of any such rule which he has, in accordance with [another section] refused to approve". So subsection (12) gives the council a discretion.

However, subsection (15) requires that function to be exercised, as soon as is reasonably practicable". It seems to me that on a plain reading of the whole clause as it would be after this amendment, the discretion which is conferred by subsection (12) would be removed by subsection (15) unless the answer is to be that what is contained in subsection (12) is not a function but a power—if that is different.

I await the explanation with interest. In the meantime I must tell the House that I shall move that this House do disagree with the Commons in their Amendment No. 116, although I may be premature in doing so.