House of Commons Hansard Debates for 12 Jun 1990

Mr. Dalyell : I do not want that to happen.

Mr. Deputy Speaker : I am afraid that my repeated warnings to the hon. Gentleman have given me little option.

Mr. Dalyell : Please, I do not want to withdraw.

Mr. Deputy Speaker : If the hon. Gentleman also withdraws the allegation that the Secretary of State deliberately misled the House--

Mr. Dalyell : I am prepared to do anything you ask, Mr. Deputy Speaker, because I do not want to be thrown out.

Mr. Rifkind : Part IV contains a number of provisions with regard to the social work services and to the probation social inquiry reports. It provides for 100 per cent. Government funding of such services in the interests of improving the probation service. There are also provisions relating to fines, including a provision to enable unitary fines experiments to take place with a view to relating fines more closely to an offender's ability to pay. The opportunity has also been taken to correct a deficiency in the Criminal Justice (Scotland) Act 1987 relating to the confiscation of the proceeds of drug trafficking.

Clause 53 reduces the periods of separation required to establish the irretrievable breakdown of marriage. The reduction is from two years to one year where the other party consents to divorce and from five years to two years without the consent of the other party. That reflects the Scottish Law Commission's conclusions that the present periods of separation are unnecessarily long and have the effect of causing many divorcing couples to use behaviour or adultery grounds, with all their attendant unpleasantness and hostility, as a means of obtaining an earlier divorce. The Government believe that the modest amendment proposed by the commission, which received substantial public support on consultation, will meet much of the criticism of the existing law without going beyond what is generally acceptable to members of the public.

Mr. Timothy Raison (Aylesbury) : It seems that the object of clause 53 is to make divorce easier. There is a great deal of concern, certainly south of the border, that we are making divorce easier the whole time. There is also a great deal of concern that the results of that increase the sum of human misery. There is more research evidence to that effect. My right hon. and noble Friend the Lord Chancellor has said that we need to make divorce harder. Does my right hon. and learned Friend have any plans, for example, to protect the interests of children more carefully than at present in divorce proceedings?

Mr. Rifkind : I can reassure my right hon. Friend. We have followed the advice of the Scottish Marriage Guidance Council. In its submission in support of the proposal, it said :

"We can appreciate that others may be concerned about the reduction of time in relation to encouraging couples to take marriage less seriously, but we can honestly claim that we, in our work have not experienced this attitude."

Column 174

It believes that the proposal will help, as does the Scottish Association of Family Conciliation Services, which said in its submission :

"It is encouraging to see Scotland leading the way in this legislation."

The thrust of the bulk of the advice received is that the current arrangements lead to a somewhat arbitrary and artificial state of affairs, and that is why the reform has been proposed.

The final matter to which I wish to refer is the provision

Mrs. Margaret Ewing : The Secretary of State has referred to the Scottish Marriage Guidance Council and the family conciliation service. What view does the Scottish Office take of the need to ensure adequate funding for the training of counsellors? That is a very important matter, as many solicitors now refer potential divorcees directly to such services. Will the right hon. and learned Gentleman ensure that the funding is available to enhance those services?

Mr. Rifkind : That question does not arise directly from the Bill, although I shall certainly look into it.

Finally, let me refer to the provision in the Bill for the High Court, or the sheriff court in Scotland, to receive evidence from abroad by means of live television links. My noble and learned Friend the Lord Advocate stated in Committee in another place that he would intend to bring the provision into operation on the same basis as that for England and Wales--that is for serious and complex fraud, murder and culpable homicide.

As a result of an amendment passed in another place, those procedures will not be available in any trial involving alleged war crimes committed in German-held territory during the second world war, which, as Scots law stands at present, the Scottish criminal courts do not have jurisdiction to try. In respect of this Bill, the Government have decided to accept that position.

Following the defeat of the War Crimes Bill on Second Reading in another place, we have under review the whole question whether our courts should have jurisdiction over such war crimes. It is in that context that we shall also consider whether the House should be asked to remove the restrictions set out in clause 56(3). I would commend that approach to hon. Members who are concerned about that clause. I suggest to them that questions about the availability of the procedures set out in clause 56 are subordinate to the larger and prior question whether there should be jurisdiction, and should not be discussed further in proceedings on this Bill.

Mr. Norman Buchan (Paisley, South) : As the Secretary of State knows, a crucial question arises here : what happens if the non-Scottish members of the Cabinet decide to seek rapidly to reverse the decision made in the House of Lords?

Mr. Rifkind : As the hon. Gentleman will be aware, the decision of the House of Lords to reject the War Crimes Bill on Second Reading means that the Bill cannot proceed during this Session. The implications of that decision are still being considered, as is the question whether steps should be taken in the next Session of Parliament to deal with the matter. It is in that context that I believe that it would be sensible for the provision to be considered.

As I said at the start of my speech, the Bill is an important measure containing wide-ranging proposals. I

Column 175

look forward to hearing hon. Members' views. It may help if I say that I am arranging for copies of the notes on clauses to be made available to hon. Members for the Committee stage of the Bill. I commend the Bill to the House.

5.42 pm

Mr. Donald Dewar (Glasgow, Garscadden) : I beg to move, That this House declines to give a Second Reading to the Law Reform (Miscellaneous Provisions) (Scotland) Bill [Lords] which lacks a coherent theme embracing in one measure widely different and controversial issues ; and which does not offer adequate protection to the interests of the consumer, is based on a flawed concept of competition, and fails to face up to the problems of delay and expense in the legal system and the unmet need for legal services. I have never been entirely convinced of the Government's sureness of touch, and there are many examples to support my view. Yesterday, the Government sent the Under-Secretary of State, the hon. Member for Stirling (Mr. Forsyth), on a trip to Genoa to act as the Scottish team mascot. There were pictures in the press of a rather unconvincing--and, to be fair, unhappy--figure clutching a Scottish scarf. In a flamboyant moment, the Scottish Information Office produced a press release under the heading :

"Mr. Forsyth wishes Scotland team buona fortuna'".

All that I can say--I hope, without overstretching the linguistic abilities of the Scottish Information Office--is that a more appropriate phrase might have been "il bacio della morte", the kiss of death.

In any event, the Bill is another example of the Government's unsureness of touch. I hasten to assure the Secretary of State that I do not object to the Bill merely because it is a miscellaneous provisions Bill. I have a number of more fundamental arguments to deploy in my speech.

The Secretary of State will have gathered from the amendment standing in my name and those of my right hon. and hon. Friends that, on balance, we do not much like the Bill. That is not to deny that it contains some good provisions, but the concept and management of the Bill are disappointing, none the less. I ought also to make it clear that I have no objection at all to law reform (miscellaneous provisions) Bills. On checking the records, I discover that I have managed to serve on a very high proportion of the Committees which have considered them in the past 20 years, and most of them I have found extremely interesting and useful. They are gatherings of odds and ends--proposals whose time has come--but by and large they tend not to be controversial.

Here, however, I believe that there is a difference of degree, as this Bill contains a number of provisions which are by any standards contentious and controversial, and which have given rise to fundamental opposition in serious quarters. The most obvious case in point is the part of the Bill which deals with changes in the legal structure--a subject which I believe would have justified a major Bill in itself. We have also crowded in changes in the licensing law and a fundamental change in the divorce law. No one could describe those as nice adjustments on the margin.

The Bill even deals with the provision of evidence in criminal trials. The hon. and learned Member for Perth and Kinross (Sir N. Fairbairn) will remember many discussions of that in our proceedings on previous law reform Bills, when the introduction of new clauses created

Column 176

a major furore. This is a very different sort of Bill and the provisions that have been miscellaneously gathered together in it raise more serious questions than is usual. When we come to deal with new clauses, we shall want to raise a number of matters under the lengthy and extensive long title. The Secretary of State will remember that Lord Macaulay of Bragar moved amendments in connection with the law on diligence and warrant sales, and no doubt we shall wish to return to those questions.

I wish to raise another most important matter about which I feel extremely strongly. This Bill is one of only two Bills to come from the Scottish Office this Session. Presumably the Government are the masters of the timetable, and the timing of proceedings on the Bill means that the Bill will go into Committee on 19 June. As we understand it, the House will rise before the end of July.

Sir Hector Monro (Dumfries) : Hear, hear.

Mr. Dewar : The hon. Member for Dumfries (Sir H. Monro) raises a cheer at the prospect, and I take his point.

As I understand it, we shall have five weeks for the Committee stage of the Bill and there is no way in which that can be extended, either by agreement or by force. We are literally boxed into that five-week period. I must stress to the Patronage Secretary's representative and the Secretary of State that I do not think that five weeks will be sufficient for the scrutiny of the Bill. I took the trouble to refer to the proceedings on the previous Law Reform (Miscellaneous Provisions) (Scotland) Bill, which was introduced in 1985. It was a much less substantial Bill, much of which was given over to leases, crofting tenure, the valuation of sheep stock and similar fascinating matters. Of course, it dealt with some important matters and I do not for a moment undervalue it. We had important debates on the detention of children in secure accommodation and on evidence in rape trials, for example. I remember that my hon. Friend the Member for Greenock and Port Glasgow (Dr. Godman) took a particular interest in the latter.

Nevertheless, it was undoubtedly a less controversial and less extensive law reform Bill than the present Bill, yet it went into Committee on 5 January 1985 and did not come out until 26 March. It occupied 26 sittings, many of them lasting well into the night, and more than 1,000 columns of Hansard . Everyone who served on that Committee accepted that its exchanges were constructive and that there was no filibustering. The Committee clearly felt that it needed the time that it took.

I suggest that, as the five weeks of the Committee stage of this Bill tick away, and as we struggle to try to cover the

extraordinarily extensive measures before the House, we are likely to find tempers getting frayed. I suspect that we shall also be conscious of the fact that we are not doing the kind of job for which we were elected in scrutinising and considering the full implications of the Bill. I make a genuine protest at the way in which the Bill has been managed ; I deeply regret what has happened.

The Committee on the 1985 Bill consisted of 18 members. The Government's representation consisted of 11 hon. Members, all of whom had been elected to Scottish seats. It is a sign of the times that, at the subsequent general election, seven of those gentleman perished and only four survived. Nevertheless, it is unfortunate that the members of the Committee will almost certainly include a number of Members who represent seats south of the

Column 177

border. I make no complaint about that, because I realise that it is now inevitable, but I suspect that hon. Members will regard with curious indifference the intricacies of our debates on Scottish licensing law and similar matters. Again, that underlines this very unfortunate situation. People have a right to be angry about that, and I suspect that many of the bodies which will brief us will be unhappy as well.

The merits of the proposals do not matter at the moment. However, we would all agree that the changes in the legal structure are far-reaching and have raised widespread fears. I suspect that they will not be as adequately scrutinised as I should have liked--or, to be fair, as many Conservative Members would have liked. If they are properly scrutinised, inevitably that will happen at the expense of other important issues. I hope that that point is accepted. It is too late to salvage the situation now, but that is an adverse comment on the way in which the Government have managed Scottish business in this and recent Sessions.

I wish to make another preliminary point before I consider the merits of the Bill. I hope that Opposition Members will be able to take a constructive and reasonably flexible view in our debates on the Bill. The Bill contains a number of issues which have normally received a free vote in the House and we intend to follow that precedent in Committee. For example, I do not intend my views on licensing law to be laid down as a standard that other hon. Members must follow. They may regard me, as they will discover in a few moments, as hopelessly reactionary on those matters. I will be unashamed and may even have to stand the indignity of finding myself on the same side as the hon. and learned Member for Perth and Kinross and against others who are normally my allies.

Mr. Foulkes : My hon. Friend means the hon. Member for Tayside, North (Mr. Walker), not the hon. and learned Member for Perth and Kinross (Sir N. Fairbairn).

Mr. Dewar : Indeed, the hon. Member for Tayside, North (Mr. Walker)- -I do not see why I should be called upon to distinguish between peas in a pod in these matters. [Laughter] I appear to be turning a serious point to laughter.

With regard to licensing law, divorce law reform and other issues, we shall vote according to our individual views. That is the right way to approach a Bill of this kind, and we hope that our example will be followed on the Conservative Benches.

I wish now to consider the specific provisions in the Bill and to make a general charge buttressed by example. In our amendment, we state that we believe that the Government have failed to do what is necessary to protect consumers' interests adequately. I recognise that the Secretary of State will make a case for saying that the attack on the conveyancing monopoly and the arrival of the legal services ombudsman are important advances from the consumer point of view. I would agree with the latter, but I believe that it is a more arguable proposition in the former case.

I have spoken to representatives from the citizens' advice bureaux and the Scottish Consumer Council. They support some of the Bill's propositions, but feel that in

Column 178

many areas opportunities have been missed. They have indicated, for instance, that in English legislation there are a number of consumer protection measures which have not been extended to Scotland. For example, there is the Lord Chancellor's advisory committee on legal education and conduct, with its rather interesting provision in English legislation that eight of the 14 members will not be salaried judges, barristers, solicitors or teachers of law, but ordinary people and presumably valued as such. That provision is lacking in the Bill, and we might consider it in Committee.

In the English version of the authorised conveyancing practitioners board, there is to be a proper balance between the interests of authorised practitioners and those who make use of their services. The Scottish equivalent contains nothing like the same adequate safeguard. There are some points about the powers of the ombudsman position that is to be created, particularly in connection with inadequate professional services, to which we shall wish to return in Committee.

My general point is that there is little in the Bill about access to legal services and the unmet legal need. There is no assault on delay and expense and no attempt to simplify the precise and intricate rules that govern our courts, and in particular the art of building a closer accord, the mysteries of the adjustment and the procedure role. That might be achieved by rules or internal committees, but the cost and delay of litigation is still one of the major problems of our legal system and the Bill does not appear to acknowledge the existence of that problem. In that regard, we simply have clause 32, which allows a solicitor outside Edinburgh to borrow a Court of Session process, which may be a small step for out-of-Edinburgh solicitors, but not for the common weal of Scotland. The legal world will not move as a result of that. There is a feeling of disappointment which I hope the Secretary of State will recognise.

I wish now to consider the specific contents of the Bill, and in doing so I must be careful to declare an interest. I am a partner in a firm of solicitors in Glasgow. Even in these days of advertising, I shall not mention its name, but it can be found in the Register of Members' Interests. Although I have not seen a client in anger for many years, and certainly not with a view to charging him a fee, that is a connection which I value and it is of some relevance because much of the Bill deals with the interests of the solicitors' profession.

With regard to the structure of the legal profession and the so-called attack on the monopoly, I do not believe that the argument has been made. There is a feeling that the Secretary of State has been dragged along in the wake of the Lord Chancellor and that there has not been a great deal of room for a distinct and separate Scottish approach. I accept that competition is important, although there is clearly a distinction in a regulated profession hedged around with necessary and important safeguards and competition in the retail trade or in the general market place.

The arrival of advertising, to which I have referred, and much more importantly, the abolition of scale fees which was long overdue, have undoubtedly had a considerable impact on conveyancing charges. I suspect that they have been more effective than anything that is likely to be created by this Bill.

There will be new animals on the legal scene, including qualified conveyancers who, I presume, are roughly

Column 179

equivalent to the licenced conveyancer who appeared in England in 1985. There will also be a conveyancing practitioner, equating with the authorised conveyancer south of the border. The latter is an institution rather than an individual. In Committee we may wish to draw a distinction between those two rather different phenomena. So far as I can see, it is inevitable--if it were not so, I should have fought to make it so--that the Scottish Conveyancing and Executry Services Board will equate largely in its powers and approach with the Law Society of Scotland's role in regard to solicitors. In Committee we shall have to look at indemnity, the guarantee fund, the clients' accounts provisions and the qualifications. Many of those matters are fundamentally important.

We cannot ring-fence conveyancing. Someone involved in conveyancing will have to advise his client on many aspects of the law, including the law of contract, matrimonial homes law, family law and tax and financial matters. We cannot ring-fence such matters and we are genuinely interested to learn what is to be included in the code of conduct. I would argue that the code of conduct could, with advantage, have been included in this Bill so that it could be placed on the record.

I am sceptical about the impact of the Secretary of State's new brand of qualified conveyancer because, if we consider the history of licensed conveyancing in England, it is clear that its impact has been very small. The Library has advised me that there are 710 licensed conveyancers in England at the latest date for which figures are available. I suppose 710 sounds quite impressive, although England is a big place. However, only 250 of those are in private practice. The rest work for institutions or legal firms of one kind or another. The Library brief states--if I am not out of order in quoting it :

"It was originally envisaged that licensed conveyancers would set up in private practice but experience has shown that in the three years or so since they came into existence, licensed conveyancers are using the qualification to seek employment with firms and organisations that have established conveyancing departments." That is not what was intended or what I presume is in the mind of the Secretary of State. However, I believe that many of the difficulties, fears and problems have arisen perhaps for little return, even in terms of the Secretary of State's theories, if we consider the English equivalents. Although I cannot consider the issue at length now, we shall consider in Committee the broader concerns, particularly the potential arrival of banks and building societies on to the scene.

In an exchange, the context of which I cannot recall, the Parliamentary Under-Secretary of State for Scotland said that he had talked to a bank and a building society and that they had assured him that they had no interest in getting into the sphere of conveyancing. That may have been the case, but it does not seem a conclusive argument to judge what is likely to happen.

It is because I recognise that there are attractions in the one-door approach that I worry about it. I recognise the enormous impact that could be made if, for example, a building society said, "I will fix your mortgage, I will buy and sell your house through our estate agency arm and I will also do your conveyancing, all for one all-in fee." That will be particularly attractive to people who do not like the idea of having to fix a mortgage, then find a solicitor and then move on to an estate agency, or in whichever order the tasks are undertaken.

Column 180

Such a one-door approach is bound to cause worries in the longer term about independent advice--those worries are well known and we shall return to them in Committee as the Secretary of State did not deal with this issue fully and effectively--and about the impact in rural areas.

Great concern has been expressed on that score and I will only say at this stage, in the interests of brevity, that the Government case has not been laid out. We must make sure that we are on a level playing field, to use one of the cliche s of the afternoon, and not the legal equivalent of kicking up the slope in Easter road for those who have remained in the more conventional conveyancing field. In the other place, Lord Hughes, who had a distinguished career as a Scottish Office Minister on my side of the political divide and, more importantly, was chairman of the Royal Commission on legal services, honourably recalled in the debate in the other place on 27 March that the Royal Commission had recommended the breaking up of the solicitors' conveyancing monopoly, but that that was

"in the state of play as it then was."--[ Official Report, House of Lords, 27 March 1990 ; Vol. 517, c. 792.]

He went on to enumerate a large number of changes, including the abolition of scale fees, which had taken place in the interim. He made a point of saying that the royal commission had never recommended the creation of a new breed of conveyancer, and he came to the conclusion that he was persuaded, as chairman of the royal commission, to oppose clause 14, as it was in the House of Lords, being the proposition that had come from the Government. His views as chairman of the royal commission are of considerable interest. On the whole, I am favourably disposed to the provision on rights of audience. In Committee, we shall want a great deal of information about how the system will work and what is intended. Much will depend on the rules. I hear talk, for example, that a solicitor who wishes to practise in the Court of Session or the High Courts will have to do a tutelage and that examination hurdles will have to be overcome. The rules appear to be firmly in the hands of the Lord President. It will be a matter of anxious interest how those powers are exercised. I do not know whether the Secretary of State is able to anticipate them, but we shall be pressing him in Committee on that.

The issue is of importance, in particular to the Faculty of Advocates, because if some solicitors will retain their position in their own firms of solicitors but will have a right of audience in the High Court--which is where it may be most relevant--there may be occasions, for example, when they will decide that they do not need to employ advocates. There may be occasions when advocates fall out, for example, because of timetable problems in their practices, when the obvious solution will be for the solicitor advocate to take over the case in which he is prepared and the consultations about which he has attended.

From the point of view of the faculty, if that happens on a wide scale, there will be a multi-disciplinary practice, in a sense, because one solicitor partner will be converted into an advocate. That, I envisage, could be a matter of anxious consideration in deciding where the balance lies. We cannot talk intelligently about the subject until we know more about the conditions and circumstances in which it will arise.

Similarly, on the question of multi-disciplinary practices--it is a natural progression--clause 25 is

Column 181

puzzling. I listened carefully to the Secretary of State's remarks and I am not much clearer. I understand that the rules prohibiting advocates from taking part in a partnership either with another advocate or with some other person must be approved by the Lord President and the Secretary of State. I am told that there is an understanding that those rules will be so approved. In other words, there will be a prohibition on the emergence on that type of partnership. I will not say that, in a sense, it is a fait accompli, but the clause on its face is rather deceptive because there is no chance of MDPs emerging in that area.

A worry of mine is that when we come to solicitors, we again have a prohibition which requires the approval of the Secretary of State. His approval may be forthcoming--the right hon. and learned Gentleman will be able to help us on that issue in Committee--but as he pointed out, that is a solicitor offering professional services to the public in relation to any court proceedings, and that gives rise to an odd situation. The implication is that a firm which has no court activities--a purely chamber or commercial practice--will have a right, subject to Office of Fair Trading oversight, to move into multi-disciplinary partnerships. There could be a possibility of a split in the profession, with some firms exercising that right and others being stopped from doing so.

The Secretary of State will appreciate that a rural practice, which might be more attracted to the idea of having other forms of partner, such as an accountant, within its number, could be prevented from doing so because of having a court practitioner among its number, while the narrow and prosperous commercial practice in Edinburgh or Glasgow may be able to branch out in that way. That would be an unsatisfactory situation and I give notice that we shall want to examine it in Committee. We shall also want to examine carefully the effect of multi-disciplinary practices and the prospect, for example, of large accountancy firms buying up large commercial practices in Scotland.

While I must not speak for too long, or I shall trespass on tolerance, I must point out that I am puzzled why, in clause 29, the provision about speculative work, presumably by court practitioners, and an enhancement of fees as a reward for taking on speculative work, has appeared. It takes us into the interesting area of contingency fees.

I suspect that it has appeared--since I am told that it was not asked for-- because it duplicates clause 48 of the Courts and Legal Services Bill south of the border and was in the Lord Chancellor's White Paper. I do not like that suggestion, and, if that is the reason, it is not good enough. If the Secretary of State cannot do better than that, it will get a hostile reception.

I merely mention--it is no bad thing to advertise areas of difficulty--that the proposal that a client who has reached agreement in a written agreement about fees should then be precluded from going to taxation in the courts--I understand that to be the effect of clause 29--would be a retrograde step. We might have agreements reached between clients and solicitors which are not even-handed in terms of the expertise with which they are approached. The right to go to taxation is important and should be maintained.

Column 182

I welcome the ombudsman provision, although we shall examine the powers and to what extent he or she will be able to operate above and beyond what is achieved by the lay observer.

Mrs. Fyfe : Does my hon. Friend think that the Committee will be able to look into the question of judges occasionally making judgments in serious cases which demonstrate that they are completely out of touch with the thinking of the vast majority of the populace?

Mr. Dewar : I am sure that the Committee will give some time to that, especially if my hon. Friend is prepared to serve on it. One obvious answer is to give a right of appeal against sentence to the Crown. I have severe doubts about that, however, although clearly it is worth considering. My own instincts are against it for all sorts of reasons that we may return to.

I hurry on to the licensing provisions. I have made it clear that there will be a free vote on them, so there is no great virtue in talking about them at length. Personally, I believe that Clayson was a success and a major reform which did much to liberalise and civilise consumption of alcohol in Scotland. I should like to see that process continue, but not necessarily by supporting all the proposals in this measure.

Weekday opening from 11 am to 11 pm is sensible and I have no objection to it. The stop-start provision on weekday opening is rather illogical, but I have no enthusiasm for off-licenses on Sundays. I recognise the argument that, if other commodities can be sold, then why not alcohol? On the other hand, I recognise that off-licences, although often small shops, have a large impact on urban areas, since the product sold is consumed in the immediate vicinity of the premises, and we could do without that on a Sunday. I certainly support the limitation on late licences although I agree that there is an interesting argument about the needs of a locality and the benefits to a community--we shall return to that, too. I also welcome the fact that the Bill of my hon. Friend the Member for Clydesdale (Mr. Hood) on under-age drinking--it was an attempt to limit it--has reappeared, at least in part, in this measure. Obviously, the supermarket provision--the three points of sale--has gone under the second point in the Bill, and we shall want to consider that carefully. I am sure that the Committee will unanimously want to take seriously the problems of under- aged drinking and to put further controls on the statute book. I am afraid that there is widespread opposition among Labour Members to clause 46 and police entry to registered clubs. The case against that was effectively put in another place by Lord Cawley. There was one of the few votes--it was close--on this Bill when this clause was discussed, and the case for it is not sufficiently made merely by saying that it was recommended by the Clayson and Guest committees. There is a clear distinction between a public house, which members of the public are invited to enter at their will, and a members' club. I am not satisfied that the invasion of privacy that this proposal represents is justified.

My hon. Friend the Member for Linlithgow (Mr. Dalyell) expressed concern in his characteristic way, in a number of attempted interventions, because the Secretary

Column 183

of State was parading the Law Society's support for this idea during the consultation exercise. But Members have received a letter dated 8 June 1990 which says of clause 46 :

"The Law Society views with concern the apparent increase in police power to enter registered clubs without warrant."

I do not doubt that the Secretary of State has correctly reported what was said at an earlier stage, but the Law Society has had second thoughts, and I am glad to have made my hon. Friend's point on his behalf.

We believe that warrant on cause shown is a necessary protection for private clubs, and we shall argue thus in committee.

Dr. John Reid (Motherwell, North) : I shall be brief, and I do not intend to seek to catch Mr. Speaker's eye later, but I remind my hon. Friend that, back in 1961 and subsequently, when considering licensing in England and this issue of warrants, the then Home Secretary said that one of the most valued privileges of clubs is freedom from police entry without warrant and that that privilege should be retained as it has been in England. Does my hon. Friend agree that the privilege should be retained in Scotland and that that reinforces the case for it?

Mr. Dewar : Yes, it sounds an interesting passage, which might be recycled with advantage at a later stage. My hon. Friend makes a serious point about a serious point. We should not be cavalier about giving away rights in the proposed way.

Like most hon. Members, I have a long-standing interest in divorce and hence in clause 53. I remember, back in the 1960s, moving a 10-minute Bill to replace the matrimonial offence with the ground of irretrievable breakdown. It was right to reduce the importance of the matrimonial offence, with all its inherent tendencies to embittering claim and counter- claim. I also accept that the law must reflect social reality--an important principle, easily forgotten. I recognise that the move to two years without consent and one year with consent was recommended after a good deal of thought by the Law Commission--rather quaintly bolstered by a public opinion survey by which Ministers in another place laid great store.

I must record my doubts about this matter and about the speed of change. I am rather surprised by this provision--as was Lord Hailsham, who felt that there was virtue in keeping the basic groundwork of divorce the same north and south of the border. Recently, the Lord Chancellor has made speeches about easier divorce which do not sit easily with this provision. I accept, however, that there is a case for change and I shall support some change. For example, I think that the five-year period during which consent can be withheld is too long. There is a genuine danger--although it can be exaggerated--of undue pressure being applied when it comes to negotiations over possessions and terms, or perhaps even access and custody, when one party refuses to grant a divorce and knows that he has five years in hand.

Meanwhile, the other party may have found a new partner, and children may be on the way or have arrived. Unpleasantness can then arise and an unfair advantage can be given, so I think that the five-year period should be reduced. There are no absolutes in this, but my judgment is that it should come down to three years, probably not to the two years proposed by the Law Commission. It is important that marriage should not be seen as a trap. If

Column 184

both parties are satisfied that the marriage is at an end, and if the courts are satisfied that the proper arrangements have been made for the children, there is a case for thinking in terms of one or two years--it is a difficult judgment. However, I would not go as low as the Government propose on the non-consent provision.

Dr. Godman : Given that I am not likely to receive an invitation to join the Committee which will scrutinise the Bill-- [Interruption.] In view of what the Whip is telling me, perhaps I should withdraw that remark.

Does my hon. Friend agree that the Matrimonial Homes (Family Protection) (Scotland) Act 1981 needs to be changed in another crucial way? While an order can be obtained under that Act to remove an accused perpetrator of child abuse or sexual abuse from the matrimonial home, the procedure is far too slow and cumbersome. Surely in all such cases it is the accused perpetrator who should be removed from the matrimonial home, not the children?

Mr. Dewar : I should like to read what my hon. Friend has said. The Act is an area of some difficulty. There is no doubt that it was an important change in the law and that it was welcome and socially desirable, but there are problems in its operation. One ambiguity in the Act is tackled in this Bill by the matrimonial interdicts and the circumstances in which they have to be reported to the police. No doubt, with my hon. Friend's help, we shall return to that in Committee. One of my regrets is that the opportunities for exploring these matters will be limited by the time factor, but I accept that my hon. Friend has made a perfectly legitimate point for consideration.

I hope that we shall debate video evidence and the Government's approach to it in Committee. I have always seen this as having to do with child abuse, or with the protection of complainers in certain sexual assault cases-- especially rape--or with the Roskill report on serious fraud. The clause gives an unlimited right, subject to the judge's satisfaction that it is in the interests of justice. The Secretary of State has said that this will be implemented only for murder, manslaughter and serious fraud--

Mr. Menzies Campbell : Culpable homicide.

Mr. Dewar : Indeed--I am sorry.

I will have to look at this, but, apart from fraud, these were not the offences that I thought would require video linking. It makes deeper my genuine puzzlement as to why we are taking this approach and why we are being faced with that list. There are problems with video links. Cross- examination will be particularly difficult and there will be problems with the assessment of credibility because television can be a distorting medium.

Dr. Godman : Have not the Government missed a fine opportunity to bring us into line with extant English legislation--the Criminal Justice Act 1988? Why have they refused to take this opportunity?

Mr. Dewar : My hon. Friend is making, in a direct and sensible way, a point that I was trying to make in a roundabout way, and that is that the list set out by the Secretary of State is not the one that I anticipated. It excludes some of the offences that I should have thought would be those for which the arguments for video linking would be strongest, such as offences involving children and sexual offences. However, these offences appear to be specifically excluded. That is why I said that I was puzzled

Column 185

by the exchanges during the Secretary of State's speech. We shall come to this in Committee. On the basis of what I understand to be the position, my intention is to look for substantial changes. If, despite the difficulties, we are to have index linking, it should come for offences where it is appropriate rather than for these offences.

I am surprised by the provisions dealing with war crimes. I shall not press the Secretary further, but the exception written into the Bill by the other place is indefensible and if it gets on the statute book it will have to be removed. I say that as one who has no enthusiasm for the War Crimes Bill, as I proved with my vote on it. It may be right to pause before final decisions are taken, but to leave the Bill as it is seems, to put it in the kindest way, quaint, and not something that I should want to do.

The Bill covers many subjects--charities, definitions of homelessness, community service orders, probation hostels, the Matrimonial Homes (Family Protection) (Scotland) Act 1981, the Mental Health (Scotland) Act 1984--all of which would justify extensive debate. We shall have to see what we can do in Committee. I am depressed about our prospects for doing so in the time allowed. This is not a good Bill. I do not go as far as the dean of the faculty of law at Edinburgh university, Professor Wolfson, who said that this should have been called the Scots Law (Abolition) Bill. Nor do I believe, as he suggested, that this is the death of the Scottish legal system. I do not even share his fear that the atmosphere in the Scottish courts will be set by slick accountants from Clapham. That is a little excitable.

There are genuine and substantial fears about what the Bill proposes. The way in which it has been handled reflects little credit on the Government. The balance of the argument is against the measure. I have no hesitation in urging my colleagues, and perhaps others, to vote for our amendment.

6.23 pm

Next Section

Home Page