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Mr. Rifkind : Normally, subject to your advice, Mr. Deputy Speaker, one declares an interest if one has the possibility of financial gain from the provisions of a Bill. If the provisions of the Bill mean that the Faculty of Advocates is to lose its monopoly position in the Court of Session and the High Court, there is hardly likely to be a financial interest to declare in terms of the normal criteria affecting those matters. However, my membership of the Faculty of Advocates is referred to in the Register of Members' Interests. Had the hon. Gentleman consulted that document, he would have been well aware of my background.
Clause 22 will enable solicitors to acquire rights of audience before the highest courts in Scotland. It is fair to say that for us in Scotland, the admission of solicitors to Supreme Court practice is a natural progression. Solicitors' rights of audience before the sheriff court are already extensive. Solicitors are already able to plead in jury trials that may result in sentences of up to three years' imprisonment ; and the sheriff's civil jurisdiction overlaps extensively with that of the Court of Session. It is
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commensurate with the overall aim of this part of the Bill that clients should have access to as wide a choice of supreme court pleader as possible.As my noble and learned Friend the Lord Advocate made quite clear in another place, that is not to say that any compromise is contemplated on standards. The Court of Session and the High Court of Justiciary depend on those who appear before them to provide the highest standards of pleading and legal argument. Clause 22 of the Bill makes provision for solicitors to acquire rights of audience in the supreme courts only where they satisfy the council of the Law Society that they measure up to such standards. Those standards will themselves be approved by the Lord President of the Court of Session and by the Secretary of State.
Mr. Foulkes : As a former councillor, the Secretary of State will recall that as a very junior bailie I served on the bench in Edinburgh, so some strange people serve on the bench. What are the consequences of solicitors doing the jobs of advocates in the Supreme Court, for appointments to the bench? Should there not be appropriate consequential changes?
Mr. Rifkind : The hon. Gentleman is certainly right that the presence of baillies on the bench can have curious consequences. I recollect on Edinburgh baillie saying to a person convicted before him that he would fine him £50, and had there been any evidence against him, he would have sent him to prison, but I am sure that the hon. Gentleman did not make that particular observation. As for the entitlement of solicitors to judicial appointment, if the hon. Gentleman consults the Bill he will see that there is provision to that effect and I shall refer to it in a moment.
Mr. Menzies Campbell : As the purpose of the provisions is increased choice, will the Secretary of State give the House an undertaking that a person admitted to legal aid will retain the choice of a solicitor and an advocate or solicitor-advocate and that, by virtue of these provisions, he will not be prevented from having the representation that he prefers?
Mr. Rifkind : I am happy to give that assurance to the hon. and learned Gentleman. It is in the public interest that that should be made quite clear and unambiguous in this context.
It can only be right that a solicitor who can demonstrate that he has the requisite ability and experience and who is willing to accept the obligations that attach to supreme court pleading should be able to provide such a service. Moreover, steps have been taken to ensure that solicitors with supreme court rights of audience shoulder similar obligations to provide representation in all cases as advocates. It is clearly important that the rules governing the two groups of supreme court pleaders should be based on comparable principles. Clause 22 provides for that. That approach also applies to rules governing the conduct of non-lawyers who acquire rights of audience, or rights to conduct litigation in any court under clause 23.
Clause 25, coupled with the provisions in schedule 7, which repeal the statutory barriers to solicitors forming partnerships with non-solicitors, removes the statutory bar to multi-disciplinary practices. I regard those measures as enabling ones, which provide an opportunity to the
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solicitor profession to develop its own approach to practice with other groups, unfettered by statutory barriers. The measures do not impose an outcome. The Law Society of Scotland remains entirely free to make such rules on the matter as it sees fit.It will not, however, be possible for the society to make a rule prohibiting multi-disciplinary practices unless that rule has been approved by the Secretary of State, in consultation with the Director General of Fair Trading. The purpose of the Secretary of State's involvement is to ensure that any prohibition is no more restrictive than is necessary in the interests of justice. My involvement is therefore confined to any rule that prohibits multi-disciplinary practices in relation to court work. Any other restriction will fall to be considered in due course under the proposed legislation on restrictive trade practices, outlined in the White Paper issued by my right hon. Friend the Secretary of State for Trade and Industry. There will therefore be no compulsion for solicitors to enter into multi-disciplinary practices, but the statutory barriers to their doing so will be removed. Whether such practices come into being will depend on whether there is a demand for them. That is as it should be where a service is responding to client needs by expanding the choice available.
Mrs. Margaret Ewing : Has the Secretary of State taken steps to ensure that multi-disciplinary practices will be monitored? Is not there an inherent danger that the establishment of such practices will result in the same fate for the legal profession as for the accountancy profession--a smaller number of larger practices, with people taking on lucrative work instead of following the ethic of service to the community?
Mr. Rifkind : All that we are removing is the statutory bar on multidisciplinary practices. The Law Society will be able to continue to make that a requirement of practice in the profession. The statutory bar on multi-disciplinary practices was introduced only in 1933. It may be of interest to the hon. Member for Glasgow, Cathcart (Mr. Maxton) to know that when the matter was discussed in 1933 a certain Mr. J. Maxton MP criticised the introduction of a statutory framework precisely because it gave a voluntary association "statutory powers to control and direct the lives of men, the methods of a great profession, powers which should reside nowhere else than in the central Government itself."
It is that statutory bar, which one J. Maxton MP imposed, which is being removed, for the reasons that I have given.
Advocates' partnerships are, for the time being, very unlikely to be in the interests either of clients or of the court system as a whole. Clause 25 therefore also requires the approval of the Secretary of State for any rule that prohibits partnerships between advocates. That approval has the effect of putting the rule beyond the scope of any challenge under forthcoming legislation on restrictive trade practices. If, however, in the future the Faculty of Advocates changed its attitude to partnerhips, it could submit an amended rule for approval. I do not see any need for such a change in the immediate future.
The complaints procedures for legal services are also strengthened considerably by the Bill. A new public office of Scottish legal services ombudsman is created, with wider responsibilities than that of the lay observer, which
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is to be abolished. The ombudsman will deal with grievances about the handling of complaints by the Faculty of Advocates, by the new board and by any body that acquires practising rights under clause 23, as well as by the Law Society of Scotland.In making those reforms to the complaints procedures relating to legal services, I have attempted to build on those already in place. Given the enhancement of the lay observer's powers, all of which the ombudsman will inherit, and the changes to be made to the statutory provisions on complaints procedures of the professional bodies, I believe that those with a grievance against a solicitor or other legal practitioner will be well placed to obtain a just and reasonable outcome for their complaint.
The remainder of part II contains a number of comparatively minor, though nevertheless valuable, measures, all of which are aimed at extending choice and opportunity both for the client and for the practitioner.
Clause 24 remedies the anomalous situation, which has arisen under community law, whereby Scottish, English and Welsh lawyers are not able to obtain the same recognition as qualified legal practitioners in each other's countries as are lawyers from other member states. A reciprocal measure is contained in the Courts and Legal Services Bill for Scottish lawyers seeking recognition south of the border. Taken as a whole the measures in part II represent a significant step forward for legal services in Scotland. Part II does not, in any event, force anyone to do anything. It simply widens the opportunities available and removes some outdated and unnecessary restrictions.
Part III proposes reforms to the system of liquor licensing in Scotland. A new code of liquor licensing was introduced in the Licensing (Scotland) Act 1976, which took account of many of the recommendations made by Dr. Clayson. The Government believe that the 1976 Act has stood the test of time, principally because the provisions reflected public attitudes. The proposals in part III of the present Bill build on the existing regime, taking account of trends in those attitudes since 1976 and of practical experience of the operation of the 1976 Act.
In drawing up the provisions in part III, we have had regard to a survey conducted by the Office of Population Censuses and Surveys and a consultation exercise undertaken in 1986 by my Department. Over 2, 000 responses were received and all were carefully considered. There are three themes running through this part of the Bill : enhancement of the more civilised regime that has been in place since 1976 ; eliminating unnecessary bureaucratic procedures ; and tightening up the law in areas where experience suggests that that is needed.
As regards the more civilised regime, clauses 41 and 42 introduce a system of children's certificates which will enable licensing boards to permit children to enter suitable licensed premises in the company of their parents or other adults. The Bill makes it clear that children may enter those premises so as to have a meal in the company of adults. As the provisions relate specifically to meals, the hours when they may be admitted will be limited to the period from 11 am to 8 pm. Clause 42 enables a board to suspend a children's certificate, following procedures that include provision for a hearing, where it considers that the premises concerned no longer constitute an environment suitable for children to be present.
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The Bill also proposes that the present requirement for licensed premises to be closed in the afternoon between 2.30 and 5 pm, unless an extension has been granted, should no longer apply.Mr. Tam Dalyell (Linlithgow) : Clause 37 raises a matter of considerable delicacy in places such as Bathgate. The Law Society considers that
"There should be equality of opening times between licensed premises, licensed canteens, registered clubs and public houses and that the inequalities in trading hours for off-sales premises, etc. should be removed."
Will the Secretary of State comment on the Law Society's views?
Mr. Rifkind : As a general principle, I do not take exception to that, but there may be circumstances when that would not be entirely appropriate. We propose to extend the opening hours of off-sales premises on Sundays for precisely the reasons to which the hon. Gentleman refers. Where, however, a distinction is drawn, we believe that it can be justified in the light of the consultation exercise. The widespread grant of afternoon extensions under the present provisions shows that continuous trading is now widely accepted, and responses to the consultation paper confirmed that. On the other hand, it remains the clear majority view that there should be no addition to the Sunday opening hours of public houses, which run from 12.30 to 2.30 in the afternoon and from 6.30 to 11.00 in the evening. The Bill proposes no change on that point.
Mr. McKelvey : In the light of all the representations that have been made, does the Secretary of State consider that it would be sensible to allow those who manage public houses to apply for an extension on Sundays so that the licensing boards could consider their applications and then grant an extension, or otherwise? Why are extensions not allowed for public houses when extensions are allowed for other establishments?
Mr. Rifkind : We are tightening up the exemptions in ways that I shall illustrate. We are responding to the results of the consultation exercise, which suggest that, with regard to Sunday, although not to other days of the week, the significant majority view is that people do not wish Sunday afternoon extensions to take place.
We believe that the traditional view--that Sunday afternoon should be a time of peace and quiet when there should be no noise or disturbance from public houses, many of which are located in residential areas--ought to be respected. The Bill reflects the results of the consultation exercise. Naturally, we look forward to the views of hon. Members in all parts of the House on that matter, as on all other issues.
Mr. Dalyell : What is the right hon. and learned Gentleman's reaction to the Law Society's worries about the restriction on the boards' discretion? The Law Society refers particularly to clause 38 and states :
"The Law Society considers that Licensing Boards should be flexible bodies capable of responding to immediate and local needs. The Law Society views with concern attempts in this Clause to restrict the Board's discretion in respect of Sunday opening of licensed premses."
This is a delicate issue in West Lothian.
Mr. Rifkind : These are delicate issues in various parts of the country. We have tried to establish a balance that reflects what appears to be the views of the public arising
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out of the consultation exercise. The Bill proposes that off-sale trading on Sundays should be permitted between 12.30 and 10 pm. Trading on Sundays has been permitted elsewhere in Britain for some years, and there is a clear demand for relaxation of the law on that point in Scotland. It is considered to be anomalous that people should be able to buy groceries and other provisions in supermarkets on Sundays, but should be restricted from buying alcohol for consumption off the premises.On the theme of tightening up the law, the 1976 provisions relating to the grant of regular extensions of permitted hours have given rise to much criticism. The proliferation of late-night extensions in some areas has been a source of distress and disturbance to local people and has imposed heavy demands on medical services and the police. A large number of complaints have been received from members of the public and hon. Members. Clause 39 accordingly requires a licensing board not to grant an application for a late-night extension unless it is satisfied that there is a need in the locality for such an extension and that it would be of such benefit to the community as a whole as to outweigh any detriment to the locality.
Mr. Darling : The Secretary of State and I know, as Edinburgh Members, that the city centre in Edinburgh has a particular problem because of the sheer number of late-night premises being allowed to open. How will a board determine whether an extension would be of benefit to the community as a whole? Does the right hon. and learned Gentleman accept that there is a difference between the various pubs in any one street? Several may cause no problems, but one may be a source of problems. Would it not be better to allow licensing boards the power to take someone off the road, as it were, until he put his house in order and to make it easier for individuals to object? In that way, we could differentiate between those places that cause no harm and those that are a constant source of irritation to the people who have to live around them.
Mr. Rifkind : I note that point. Over the past few years, instead of being the exception, as was envisaged in the earlier legislation, late- night extensions have been the rule. Almost without exception, they have been granted, causing annoyance and disturbance to many residents who, even in the early hours of the morning, find themselves disturbed by noise. A well-run public house can still be a noisy establishment, even if no crimes are committed or no irresponsible behaviour is apparent--there can be singing and other such activity. It is necessary to find a balance.
That is why the criteria that a licensing board is invited to consider include the question whether the need in an area for an extension is such as to outweigh any detriment to the locality. It must be for the board to look at the circumstances in each case, to consider the objections that might be put by local residents and to come to a sensible judgment as to whether the criteria are satisfied. It is our view and that of the vast majority who commented on the matter that late-night extensions, particularly in residential areas, should be the exception rather than the rule, for the reasons that I have given. The ultimate discretion lies with the licensing board.
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Sir Nicholas Fairbairn : I have some difficulty in following my right hon. and learned Friend's argument. Clause 38(4)(a) states : "A licensing board shall refuse to grant or renew a public house or a refreshment licence in respect of the permitted hours on a Sunday if it finds that the opening and use on a Sunday of the premises to which the application relates would cause undue disturbance or public nuisance in the locality, but the refusal of an application on that ground alone shall not prevent the licensing board from granting the application in respect of days other than Sundays."
That seems to conflict with what my right hon. and learned Friend said.
Mr. Rifkind : Not really. Until now, any application to open on a Sunday has required a separate application to the licensing board. One of the reforms proposed in the Bill is that, if a new public house is to be opened, the initial application can cover both weekdays and Sundays. It is not unreasonable to think that, although there may be a single application covering both Sundays and weekdays, the board should be permitted to make a distinction in respect of Sundays if the circumstances appear to justify it. the clause is drafted in its present form to give boards the maximum discretion.
Mr. Graham : Does the Secretary of State accept that under-age drinking is causing a rampaging disaster in villages and towns throughout Scotland? Will he take cognisance of that fact and keep off-sale premises closed on a Sunday? Most of the young people are getting their drink from off-sale premises one way or the other. Will the right hon. and learned Gentleman give folk in the villages and towns of Scotland peace on a Sunday?
Mr. Rifkind : The provision in the Bill reflects the strong views that were expressed in the consultation exercise. I appreciate the fact that the hon. Gentleman's view may be shared by the minority of those respondents and, no doubt, he will put forward his views in due course.
Mrs. Fyfe : Has the Secretary of State any ideas on how the public could find it easier to draw to the attention of the licensing boards their complaints about licensed premises in their area? Would the right hon. and learned Gentleman like to hear my views in due course as well?
Mr. Rifkind : I should certainly like to hear the hon. Lady's views in due course. Obviously, there is an opportunity for persons to bring to the attention of the licensing boards any reasons why they believe that the terms of the licence are not complied with. No doubt, if the hon. Lady has particular points to raise, she will seek an opportunity to do so.
Clause 46 provides the police with a power to enter registered pubs at any reasonable time without a warrant. Such a power was recommended by the Clayson committee, and the Guest committee before that, and our consultative exercise revealed overwhelming support for it. There was considerable debate on the matter in another place, and we recognise the concerns of some registered clubs about the exercise in practice of those powers by the police. I have every confidence that chief constables would have due regard for those concerns and would use the powers only where they were genuinely necessary and with due regard to the sensitivities of members and the management of registered clubs.
Mr. Dennis Canavan (Falkirk, West) : The clause gives that power to police constables, not just chief constables.
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Why does the right hon. and learned Gentleman consider the clause to be necessary? Most clubs are self- regulating and organise themselves in a fair, efficient and disciplined manner. If any trouble or law-breaking occurs, the police already have the powers to deal with the situation. In the last analysis, the sheriff may refuse to renew a club's licence. It is utterly unwarranted to give those powers to the police and it will be seen as a gross invasion of privacy. The opposition to the clause comes not just from social, miners' welfare, sport and labour clubs, but--as I know from my conversations with Conservative Members--from Conservative clubs. Many hon. Members are determined to fight the clause. I ask the Secretary of State to say that he will withdraw it.Mr. Rifkind : Before getting carried away, the hon. Gentleman should consider the responses to the consultation exercise, which show that some 67 representations were in favour of the proposal, with only nine against. Among the 67 in favour, there were 21 licensing boards, 18 community councils and others, 15 organisations with health and alcohol interests, five licensed trade interests, four police organisations, two Churches, the Law Society and the Convention of Scottish Local Authorities.
Mr. Foulkes : What about the nine against?
Mr. Rifkind : The nine comprised three licensing boards, four community councils, the Scottish Trades Union Congress and the Faculty of Advocates-- [Hon. Members :-- "Oh."] I acknowledge that that is a powerful combination.
Mr. Richard Alexander (Newark) : My right hon. and learned Friend must be aware that in that list, no clubs said that there is a need for the provision. Is he further aware that such a provision has never been carried out? Does he agree that whatever happens in Scotland, once clause 46 becomes law in Scotland, the next stage is for clubs to be open to the police in the rest of Great Britain? I assure my right hon. and learned Friend that that would be wholly unacceptable to many Conservative Members.
Mr. Harry Ewing (Falkirk, East) : I am grateful to the Secretary of State for giving way before he answers his hon. Friend the Member for Newark (Mr. Alexander) and I hope that my intervention will not prevent him from answering his hon. Friend.
The Secretary of State will be aware of the great deal of discussion about the matter in the other place. In the Licensing (Scotland) Bill 1976, the Labour Government tried to include a provision that gave the police right of entry into clubs without a warrant or without invitation. We were defeated on the Floor of the House, with the right hon. and learned Gentleman voting against us. Can he explain his change of mind?
Mr. Rifkind : The hon. Gentleman is correct and he has made the point to which I have just drawn attention. When many organisations that are intimately involved in health and in the prevention of alcohol abuse, such as the Churches, the Law Society and the vast majority of community councils, as well as the licensing boards themselves, join together, that is a powerful combination of points of view.
Licensed clubs are the only licensed premises where the police do not have such a right. There may be arguments
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against that and we shall be happy to listen to views on it. However, it is right that the Bill should reflect a view that is not merely the majority view, but the overwhelming view of a wide diversity of interests that took the trouble to comment on the proposals.Mr. Menzies Campbell : I was a member of the minority on the Clayson committee who were opposed to the extension of that right. As was pointed out by the hon. Member for Falkirk, East (Mr. Ewing), the Licensing (Scotland) Act 1976, when it was first laid before the House, contained such a provision. If there is to be an extension of police powers, there must be a justification for that extension. The fact that many bodies may be in favour of the extension does not of itself justify it. Is not the right hon. and learned Gentleman under an obligation to demonstrate to the House why there should be an extension of a right that already exists in the form of the right of the police to seek a warrant before a magistrate if they are able to satisfy a magistrate that there is good reason for them to have entry to a particular club?
Mr. Rifkind : The hon. and learned Gentleman is correct to make that point. The evidence from the police is that they believe that in a minority of clubs, there is iresponsible behaviour that requires to be investigated by the police. They believe that if they were required to seek a warrant before having permission to enter the premises, they would not be able to prosecute the interests of justice. They believe that just as they have the right to enter a public house without a warrant when they believe that such activities are being conducted, so they should have a comparable right in respect of the clubs.
I fully accept that those are controversial matters and that hon. Members will wish to probe deeply into the justification for the proposal. It represents the overwhelming view of those who took the trouble to comment on those matters.
Mr. Dalyell : Will the right hon. and learned Gentleman give way?
Mr. Rifkind : No. I hope that the hon. Gentleman will forgive me, because many hon. Members want to take part in the debate. I have given way a great deal.
Mr. Dalyell : Will the right hon. and learned Gentleman give way?
Mr. Rifkind : I would rather not, if the hon. Gentleman will forgive me.
Mr. Dalyell : I would rather that you did.
Mr. Rifkind : I am sorry. However, I have given way to the hon. Gentleman several times already and other hon. Members wish to speak. The hon. Gentleman will no doubt catch--
Mr. Dalyell : Will the right hon. and learned Gentleman give way?
Mr. Rifkind : No, I will not give way.
Mr. Dalyell rose --
Mr. Deputy Speaker (Mr. Harold Walker) : Order. The Secretary of State is clearly not giving way. The hon. Gentleman must resume his seat.
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Mr. Dalyell : On a point of order, Mr. Deputy Speaker. I think that the Secretary of State should give way. He has made--
Mr. Deputy Speaker : Order. The hon. Gentleman knows better. He must resume his seat. It is a matter for the Secretary of State and he is clearly not giving way.
Mr. Dalyell : I plead with the Secretary of State to give way.
Mr. Rifkind : I would rather not, if the hon. Gentleman will forgive me.
Mr. Rifkind : I do not have the faintest idea why.
Mr. Dalyell rose --
Mr. Deputy Speaker : Order. Perhaps the hon. Member for Linlithgow (Mr. Dalyell) will seek to catch my eye to explain why later in the debate.
Mr Dalyell : I should have thought that, on a point of fact, the right hon. and learned Gentleman would have given way.
Mr. Dalyell rose --
Mr. Deputy Speaker : Order. Many hon. Members are waiting to take part in the debate. We are getting on. Perhaps the hon. Gentleman, who is very experienced in these matters, might wait to see whether he can catch the eye of the occupant of the Chair and make his contribution then.
Mr. Dalyell rose
Mr. Deputy Speaker : Order. The hon. Gentleman must keep his seat.
Mr. Dalyell : Will the Secretary of State give way?
Mr. Deputy Speaker : Order. I very much hope that the hon. Gentleman will not press me into having to use the disciplinary powers that he knows I possess. Perhaps he will wait patiently and seek a later opportunity.
Mr. Rifkind : I refer now to part IV.
Mr. Dalyell : Will the Secretary of State give way?
Mr. Rifkind : No, I will not give way. I refer now to the remaining- -
Mr. Dalyell : Will the Secretary of State give way?
Mr. Deputy Speaker : Order. I hope that the hon. Gentleman will not push me. I hope that we shall be allowed to get on with the debate. The hon. Gentleman knows perfectly well that it is for the right hon. or hon. Member who has the Floor to determine whether he or she gives way. The Secretary of State is clearly not giving way. I hope that the hon. Gentleman will not push me into having to do what I do not want to do.
Mr. Rifkind : I refer now to the--
Mr. Dalyell : The Secretary of State is not giving way because he knows that he has misled the House.
Mr. Deputy Speaker : Order. If this goes on, I shall have no option but to ask the hon. Gentleman, under the
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powers conferred on me by Standing Order No. 42, to withdraw from the Chamber for the remainder of this day's sitting.
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