HL Deb 25 October 1990 vol 522 cc1530-5

3.30 p.m.

Lord Denham

My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Law Reform (Miscellaneous Provisions) (Scotland) Bill, has consented to place her prerogative and interests so far as they are affected by the Bill at the disposal of Parliament for the purposes of the Bill.

The Lord Advocate (Lord Fraser of Carmyllie)

My Lords, I beg to move that the Commons amendments be now considered.

Moved, That the Commons amendments be now considered.—(Lord Fraser of Carmyllie.)

Lord Macaulay of Bragar

My Lords, before we move to the consideration of the Commons amendments, perhaps I may lodge a final protest about the form of this very important Bill in relation to the affairs of Scotland. It does not relate only to legal affairs. At the outset of consideration of the Law Reform (Miscellaneous Provisions) (Scotland) Bill noble Lords on this side of the House made the observation that the format, not necessarily the content, of the Bill was an insult to Scotland. I do not withdraw one word that was said on that occasion. The forebodings as to the progress of the Bill have proved to be more than true.

In another place the legislation has been treated with all the hallmarks of an auction in the market-place where the Government were torpedoed by their own mutinous crew. I shall not go through the additions to and subtractions from the Bill. That will become self-evident in the course of consideration of the many amendments now before your Lordships' House. We suspected, and still suspect, that certain elements in the Bill were conceived in an unholy alliance between the DTI and the Government, producing an embryo which kept changing its shape. Of course embryos do that, but not in the way that this Bill hay changed. We now see the final baby being produced today. Whether the child will ever find legitimacy in Scotland is another issue.

I find it galling that much of the valuable work undertaken by Members on all sides of the House has been absolutely wasted and has gone down the drain in another place during what was a complete political fiasco. We are now faced with a very much altered piece of legislation—some of which had been valiantly defended by the noble and learned Lord the Lord Advocate—with clauses dropped and other clauses added, albeit to meet some of the points raised in both Houses.

A protest has been made in another place about the way the Bill was dealt with. Amendments received on a Saturday had to be dealt with the following week by Members in another place. There was no time to give proper consideration to important matters. I do not make a nationalistic point. However, with regard to the Bill and the way in which amendments have been placed before the other place and this House, it appears that Scotland is being treated as a second class nation where the legislation does not matter very much.

The House is now faced at short notice with 278 amendments —albeit some are technical and formal, but others are major and substantive—being presented in the closing days of this Session of Parliament. The noble and learned Lord the Lord Advocate was kind enough to send me a copy of the Notes on Clauses. It landed on my desk yesterday afternoon. I do not know how on earth I am supposed to go through that and assimilate it. To be honest, I have not tried, but we shall see what emerges during consideration of the Bill.

I make these remarks because I believe it is important that the House should add its protest with regard to the Bill and having regard to the protest made by my noble friend Lord Mishcon in relation to the progress of the Courts and Legal Services Bill in your Lordships' House yesterday. Noble Lords on this side of the House could submit that all that can be said about the Bill has been said at other stages. We do not propose to take that negative attitude. We shall continue to try to make constructive observations on the progress of the Bill.

Lord Tordoff

My Lords, perhaps I may briefly intervene at this stage. The noble and learned Lord the Lord Advocate may remember that at a late stage of the Bill's passage through this House I had the temerity to move an amendment on behalf of my noble friend Lord Mackie of Benshie. The Government were good enough to indicate that it would be their pleasure to bring it in in another place. However, on reading the proceedings of another place I understand that it elicited a considerable amount of what I can only describe as ribald comment. No doubt Members in another place had considerable fun.

However, what is the Government's intention now on the licensing laws with regard to the matter that I raised?

Lord McCluskey

My Lords, perhaps I may express my dismay at the situation which the House faces today. The original Bill was introduced into this House on 19th December 1989. It consisted of 49 clauses and six schedules. It extended to 76 pages. When it left this House it consisted of 64 clauses (compared with 49), seven schedules (an addition of one) and 105 pages. It returns in that form and with 52 pages consisting of 278 amendments, including 18 new clauses and two new schedules. Eight clauses which were originally in the Bill and were fully discussed in this House are to be dropped without a word of explanation. Many of those clauses contain useful miscellaneous provisions about law reform which enjoyed a certain amount of support in this Chamber and elsewhere.

However, the constitutional reforms contained mainly in Part II of the Bill and those that impinge upon the Act of Union of 1707 have survived but in a form that, alas, makes them extremely difficult to understand. It is clear that they are still badly thought out, obnoxious and unsupported by any significant body of informed opinion. The Bill will end up with 74 clauses and nine schedules. I suppose that we should congratulate the Government upon achieving growth in at least one area of activity. It is no way to treat the House. It is no way to treat the legal profession and the judiciary. In my judgment it is no way to treat the law and the courts.

Yesterday when similar protests were made by various noble Lords about the Courts and Legal Services Bill the Leader of the House—I am happy to see him in his place— said at the end of those protests: I wish to make two quick points. This is not a Bill which has just arrived from the Commons. Your Lordships have had time to think about what the Commons has done because the Bill left there at the end of July. Secondly, realising the weight upon your Lordship's House, my noble and learned friend [the Lord Chancellor] characteristically sent out a massive briefing on a personal basis to all noble Lords who have been involved in the Bill". [official Report, 24/10/90; col. 1340.] First, the Scottish Bill did not leave the Commons at the end of July. It left the Commons at 6.49 p.m. last Wednesday, less than eight days ago. The amendments were ordered to be printed on 18th October; that is last Thursday. They first became available to me and to others this week. Secondly, the noble and learned Lord the Lord Chancellor, or another Minister in charge of the Bill, did not see fit to send any briefing material on a personal or other basis to any noble Lords who have been involved with the Bill. In particular, I have not even had the pleasure of seeing the Notes on Clauses to which the noble Lord, Lord Macaulay, referred.

That is one aspect of the matter. The Bill was mutilated in the Commons because the Government's supporters in the Commons Committee were revolting. I should not like noble Lords to misunderstand what I just said. I mean that they possibly revolted against what the Bill contained. The timetable was threatened. It was widely reported in the Scottish media and newspapers that your Lordships had delayed the Bill while it was in this House. Prima facie that seemed to be so, because the Bill came to this House on 9th December 1989 and did not leave it until the end of May 1990. It looked as though we had indeed wasted time.

However, the true timetable is this. The Bill had its First Reading on 19th December; it had its Second Reading six weeks later on 30th January; it had its first Committee day seven weeks after that on 20th March. It had four days in Committee within a fortnight. Inexplicably there was then a delay of one month before the final Committee day. The Bill then went to Report on 15th May and Third Reading on 24th May. The delay must be laid at the door of the Government and not at the door of your Lordships' House. We were not responsible for the delays; the Government chose the timetable. I hope that today the noble and learned Lord the Lord Advocate will acknowledge that in view of all the spurious information that has reached the press, although from whatever source I know not.

I do not wish to speak in detail about the amendments to which I shall turn in a moment. When the Bill was before this House in Committee and on Report we considered about 700 amendments. We must now consider a further 278 amendments. The Bill will emerge as historical and unique. It is the most amended Bill in the history of legislation in Scotland. As a Law Reform (Miscellaneous Provisions) (Scotland) Bill it should contain non-contentious matters.

I believe that I know why this state of affairs has come about. The draftsmen in the Lord Advocate's office received their instructions less than three weeks before the Bill was published. They were required to produce a Bill dealing with six or seven aspects, including constitutional matters, so naturally they made a rushed and botched job. As the Bill progressed through this House we saw that it was rushed and botched. That is why there were hundreds of amendments in Committee and why we now face a further 278 amendments. The Bill now before us is not recognisable when compared with the Bill which came before this House in December 1989.

I am happy to see the noble Lord, Lord Renton, in his place. His report dealt with matters upon which I am now impinging. However, this is no way in which to frame legislation applicable to the law in Scotland; it is no way to treat this House; and it is no way to treat the courts, the judiciary and the legal profession in Scotland.

Lord Fraser of Carmyllie

My Lords, before turning to the amendments which are most anxiously awaited I shall respond briefly to what has been said. It needs to be recalled that in another place the Bill was given unopposed Second and Third Readings. Approximately 80 hours were taken in Committee in another place scrutinising the Bill. In such circumstances the complaint that it has been too briefly considered is unwarranted.

I must point out to the noble and learned Lord that the reason for one delay in Committee was that he and other noble Lords were to speak at a conference of the Law Society of Scotland at Gleneagles. While the Government and I understood that the rest of the House was prepared to deal with the Bill in Committee, a request was made and a day in Committee was lost. It is not fair for the noble and learned Lord to indicate that delays were caused only by the arrangements of the Government Front Bench—

Lord McCluskey

My Lords, does the noble and learned Lord agree that the first Committee day was postponed by 48 hours in response to a request by the Law Society of Scotland?

Lord Fraser of Carmyllie

My Lords, the noble and learned Lord indicated that delays arose only from this side of the House. I and everyone else was prepared to go ahead. However, the request was made and it was acceded to. It is ungracious to indicate that all the delay was caused by this side of the House when the postponement of one day in Committee was intended to assist the noble and learned Lord and the Law Society of Scotland.

Let me say to the noble and learned Lord, Lord Tordoff—no, he is not learned and he is "un-Scottish", as appeared from the problems that he encountered when his amendment was considered in another place—that I regret that what appeared to be an entirely reasonable proposal met with the greatest of hostility, which indicated that the noble Lord ought to go for a common riding in the Borders in order to understand the difficulties. There was such united opposition and hostility from Members, including some Members of his party, which may be startling to the noble Lord, that the better approach was taken. It was decided to leave the matter aside for the time being. Clearly, the noble Lord will appreciate that there remain some issues relating to licensing in Scotland which must be reviewed at a future date.

On Question, Motion agreed to.

3.45 p.m.