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Mr. Menzies Campbell : I beg to move, That the clause be read a Second time.
I shall try to adopt the spirit of the proceedings. The clause is important but I shall try to deal with it briefly. It seeks to address an issue that has been brought to my attention by Dr. Derek Chiswick, an eminent consultant forensic psychiatrist at the Royal Edinburgh hospital. It seeks to deal with the circumstances that may arise if an accused person is found insane in bar of trial under solemn procedure and is thereafter automatically committed to the state hospital at Carstairs without limit of time by virtue of the provisions of section 174 of the Criminal Procedure (Scotland) Act 1975. When such a person subsequently becomes sane and fit to plead, he may be brought back to be reprosecuted. However, there is now an automatic procedure whereby the original hospital restriction orders are terminated after reprosecution. Thus it may be the case that accused persons acquitted after reprosecution could, theoretically at least, find themselves still liable to be detained without limit of time in the state hospital at Carstairs.
Along with two other eminent colleagues, Dr. Chiswick has written a helpful article on this matter in the Psychiatric Bulletin 1990, volume 14, pages 208-10. That article sets out precisely the kind of circumstances to which I have referred and draws attention to two cases, one arising from proceedings in December 1986 at the High Court in Edinburgh and the second in January 1985 at the Dunoon sheriff court. In each of those cases there was reprosecution. In the first case the accused was acquitted by reason of the judge determining that there was insufficient evidence against her to allow the case to continue and the prosecution to proceed. The second case was slightly different, but in both cases it was necessary for the Secretary of State to authorise an absolute discharge some time after the second set of proceedings had been concluded. I understand that in England and Wales there is a power, similar to the one sought by the new clause, in the Criminal Procedure (Insanity) Act 1964.
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As the Minister will readily appreciate, the new clause applies not only to solemn proceedings but to summary proceedings. That is precisely the kind of issue which a Law Reform (Miscellaneous Provisions) Bill should address, and it should find favour with the Minister because it involves what I suppose one might describe as a tidying up of the legislative situation in Scotland. Such a situation has not arisen in England because of relevant statutory provisions. I urge the Minister to give the new clause a favourable reception. It can hardly be regarded as contentious and would remove a statutory anomaly which the two cases referred to by Dr. Chiswick and his colleagues plainly demonstrate is urgently required.Lord James Douglas-Hamilton : The hon. and learned Gentleman has raised an extremely interesting matter. I have considerable sympathy with what he is trying to achieve and there is some force in the new clause. I shall look carefully at the matter with a view to dealing with it comprehensively at an appropriate time in the future. I am grateful to the hon. and learned Gentleman for raising the matter.
Mr. Menzies Campbell : If the Minister would give a little more urgency to
"an appropriate time in the future"
I should be satisfied, because cases clearly have arisen and may be likely to arise at any time. The longer the delay, the more likely is the continuation of this statutory anomaly. If the Minister will inject a note of urgency into his undertaking, I shall not find it necessary to press the matter.
Lord James Douglas-Hamilton : We shall do our best in the light of what is possible.
Mr. Menzies Campbell : I do not wish to be seen as unreceptive to the Minister's generosity but he could do a little better than that. He is like the drowning man, and I offer him a third and last opportunity to say that the matter will be treated urgently.
Lord James Douglas-Hamilton : I cannot commit the Government to immediate legislation. I do not know exactly what will be in the Queen's Speech, although its terms will soon be revealed. Obviously, we shall do our best.
Mr. Menzies Campbell : I accept that. I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
New Clause 19
Setting aside of convictions
In section 453 of the Criminal Procedure (Scotland) Act 1975 (consent of prosecutor to set aside the conviction) the words in subsection (3) "not exceeding £40.00" shall be deleted and the words ", the amount of which to be decided at the discretion of the Court," added.'.-- [Sir David Steel.]
Brought up, and read the First time.
Sir David Steel (Tweeddale, Ettrick and Lauderdale) : I beg to move, That the clause be read a Second time.
I express my gratitude to Mr. Speaker for selecting this new clause. It was not in the provisional selection list yesterday, but Mr. Speaker paid some heed to my
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representation which was, in short, that one of the purposes of our being here at all is to seek the redress of grievances. The new clause seeks such a redress which cannot be achieved for one of my constituents, whose case I shall shortly outline. However, it will be of benefit to others who find themselves in a similar position. Time is short and I shall not go into the details of the case. Suffice it to say that in 1987 a constituent living in Melrose was convicted in the Clydesdale district court in Lanark on a charge of speeding. Some two years later it came to light that the conviction was an error and should not stand. He then received a letter from the procurator fiscal in Lanark setting out the procedure to be adopted in order to appeal by way of bill of suspension. It was explained to him that the procedure is laid down in section 453 of the Criminal Procedure (Scotland) Act 1975. That is the section which I seek to amend. This is the only procedure that Parliament has provided for such cases where a conviction is in error and the Crown, like everyone else, must follow it.The procedure is relatively straightforward. In particular, the parties do not require to be heard in a court at all and the matter can be dealt with expeditiously by a judge sitting in chambers. Section 453(3) of the Act allows expenses not exceeding £40 to be awarded to the appellant and paid by the Crown. My constituent pursued this procedure and his solicitor's fees were a not unreasonable £170. He was therefore out of pocket in achieving the lawful redress of his grievance which Parliament has allowed. I took the matter up with the Lord Advocate and had a helpful reply from the Solicitor-General. It states :
"I recognise that in fact your constituent was left out of pocket. I have noted this point and can reassure you that any future review of procedure will consider whether this particular aspect can be further simplified in some way."
I received that letter during the summer recess. It seems wrong to allow a miscellaneous provisions Bill of this kind to go through the House without taking the opportunity to put this matter right since it is acknowledged by the Crown Office that an amendment should be made.
The 1975 Act allowed for expenses of £20 and by statutory instrument in 1984 that was raised to £40. I am assured by those who know about these things that inflation alone means that in real terms £40 in 1984 should now be £150. My basic point is why we have a fixed sum in the principal Act at all. My proposal is that the expenses awarded to an aggrieved person should be at the discretion of the court. I do not think that that discretion would be used irresponsibly. The new clause is a sensible amendment to the criminal law of Scotland and the House should seize the opportunity to adopt it.
Lord James Douglas-Hamilton : The right hon. Member for Tweeddale, Ettrick and Lauderdale (Sir D. Steel) described the position accurately. I was interested to hear the details of his constituent's difficulties. The amount of compensation--£40--was set by statutory instrument in 1984, and the time may have come to review that figure. When it was set, it represented an appropriate limit on expenses. In the light of the circumstances mentioned, I propose to consider--in consultation with interested parties and taking account of the terms of the 1975 Act, which enables the Secretary of State to substitute a new sum, having regard to the changes in the value of money--what adjustment is necessary by means of a further statutory instrument.
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The right hon. Gentleman wanted me to go a little further and consider whether this matter could be dealt with more thoroughly by further legislation. I will consider that matter in the future, but the immediate option is a statutory instrument, and that can be proceeded with relatively quickly.Sir David Steel : I shall press the Minister on two points. First, this is not compensation--the hon. Gentleman may have made a slip of the tongue--because we are talking about the expenses incurred by an aggrieved individual in seeking redress of a grievance. My contention is that, within reason, these expenses should be met. It is far better for a court to judge that matter than for the House to judge it in abstract.
Secondly, if I simply accept the Minister's assurance on a statutory instrument, I shall not have done my duty. We all know the pressure on both the Scottish Office and the time of the House. How do we know when a statutory instrument will be introduced? The erosion of money values since 1984, when the matter was last examined, is serious. Would it not be more simple to accept the principle that the court should determine the right limit on expenses, rather than establishing a sum that has to be constantly updated by statutory instrument? I hope that the Minister will give me a rather more cheerful reply.
Lord James Douglas-Hamilton : I hope that we can introduce a statutory instrument before too long. There should be no problem. On the second point, before we introduce any legislation, it will be necessary to consult the interested parties.
The right hon. Gentleman has raised relevant points and we shall consider them carefully.
Sir David Steel : Is the Minister saying that a statutory instrument will be introduced fairly quickly?
Lord James Douglas-Hamilton : Yes.
Sir David Steel : On that basis, I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
Clause 59
Blood and other samples in civil proceedings
Lord James Douglas-Hamilton : I beg to move amendment No. 102, in page 63, line 7, leave out direct' and insert request'.
Mr. Deputy Speaker (Sir Paul Dean) : With this it will be convenient to take Government amendments Nos. 103 to 107.
Lord James Douglas-Hamilton : These are technical amendments on DNA, and I commend them to the House.
Mr. Dewar : I accept that these are technical amendments, but they relate to an important clause, which introduces into civil actions in Scotland a new power, which will probably be brought into play most commonly in paternity cases. The DNA test, or genetic fingerprinting, allows deciding the truth of the matter to be put beyond any significant chance of error. I was pleased when the new clause that I moved in Committee on this subject was accepted by the Government. I hope that it will end the bitterness and humiliation that is all too often built into
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paternity cases. I have been involved in such cases--in a professional sense--and they are not a pleasant experience. The Committee and the House spent some time on the protection of children giving evidence in court, and spoke of the stress put on them. There is a strong case for introducing the change set out in this clause as it protects those who might otherwise become entrenched combatants in paternity cases. I am delighted that this will reach the statute book, and it is a worthwhile part of the Bill.Will the Minister say something about commencement? I know that there is a citation and commencement clause in the Bill--clause 62--under which certain parts of the Bill come into force within two months, beginning with the date on which the Act is passed. Clause 59 is not one of them, which means, as I understand clause 62(2), that it will be brought into force.
"on such day as the Secretary of State may appoint by order made by statutory instrument".
This is not just idle curiosity. I have had inquiries, in particular from solicitors who have an active interest in this machinery, about when the commencement order will be laid. It would be useful if the Minister could help me on that point.
6.15 pm
Lord James Douglas-Hamilton : It will come into force two months after Royal Assent. I understand that this is covered in the clause.
Mr. Dewar : Can I press the Minister on that point? I may be becoming obtuse and goitered in my old age
Mr. Menzies Campbell : That is not true.
Mr. Dewar : Thank you for that loyal all-party vote of confidence from behind me.
Clause 62 refers to the provisions of part III, which is the licensing part, and says that it and
"section 55 of this Act and so much of section 61 as relates to those provisions ; and
(b) section 56 of this Act and paragraphs 21 and 32 of Schedule 7 to this Act,
shall come into force at the end of the period of two months beginning with the day on which this Act is passed."
Therefore, clause 59 is not included, so it must be covered by clause 62(2), which provides that it will commence when an order is laid before the House. If the Minister is saying that he intends to lay an order so that the clause will be brought into effect two months after the passing of the Act, I am happy with that, but that seems an unlikely promise, so I should like him to confirm it.
Lord James Douglas-Hamilton : I can confirm that that is the intention. I believe that we can proceed along those lines under the terms of the Bill. There should be no problem and the provisions will commence two months after the passing of the Act.
Amendment agreed to.
Amendments made : No. 103, in page 63, line 13, leave out direction' and insert request'.
No. 104, in page 63, line 14, leave out given' and insert made'. No. 105, in page 63, line 16, leave out directed' and insert requested'.
No. 106, in page 63, leave out lines 22 to 28 and insert
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(3) In section 6 of the Law Reform (Parent and Child) (Scotland) Act 1986 (determination of parentage by blood sample) --(a) in subsection (1), for the words "blood sample" there shall be substituted "sample of blood or other body fluid or of body tissue" ; and
(b) in each of subsections (2), (3) and (4), for the words "a blood" there shall be substituted "such a".'
No. 107, in page 63, line 31, leave out Act' and insert section'.-- [Lord James Douglas-Hamilton.]
Clause 62
Citation, commencement and extent
Lord James Douglas-Hamilton : I beg to move amendment No. 58, in page 64, line 12, leave out subsection (3)' and insert subsections (3) and (3A)'.
Mr. Deputy Speaker : With this it will be convenient to take Government amendment No. 59.
Lord James Douglas-Hamilton : These amendments put the law back to what everyone thought that it was. I commend them to the House.
Mr. Dewar : We have made such good progress so suddenly and unexpectedly that I can allow myself the luxury of asking a question. As I understand the situation, the means test courts have been operating in a way that is not justified by the law of Scotland, so that these amendments give them the powers that they always thought that they had to act in the way that they have always acted. If that is the position, I am curious about what happens if someone challenges the competence of what the courts have been doing. Will it be necessary to allow for compensation, or to make provision to undo the damage that has been done if, for example, someone has gone to prison as a result of this misunderstanding of the law? I am in favour of things being put right, but will the Minister say a word or two about the consequences for those who were dealt with under a misapprehension?
Lord James Douglas-Hamilton : I do not think that there will be a problem. The amendments clarify the position. They implement the provisions to empower the means inquiry courts to allow a fine defaulter more time to pay his or her fine and at the same time to impose a period of imprisonment in the event of future default. As hon. Members know, a recent High Court ruling cast doubt on this practice and the necessary clarification was agreed unanimously in Committee. It is right, as the courts in Scotland are conducting means inquiries daily, that the legal position should be clarified as soon as possible.
Mr. Menzies Campbell : Has anybody been sent to prison as a result of non-payment of fines on a misunderstanding of the legal powers of the sheriff?
Lord James Douglas-Hamilton : I will have to check on that, but not to my knowledge. The point is that doubt was cast on the process by a High Court ruling, so that it was necessary to clarify the matter to make certain that that would not happen.
Amendment agreed to.
Amendments made : No. 108, in page 64, line 19, leave out section 56' and insert
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sections 56, 59 and (Effect of mental incapacity on powers of attorney etc.)'.No. 59, in page 64, line 22 at end insert--
(3A) Paragraph 27(4) of Schedule 7 to this Act shall come into force on the day on which this Act is passed.'
No. 129, in page 64, line 23, leave out subsection (5)' and insert subsections (4A) and (5)'.
No. 130, in page 64, line 23, at end insert--
(4A) Section (Execution of documents by companies) of this Act, paragraph 31A of Schedule 7 to this Act and Schedule 8 to this Act so far as relating to the Companies Act 1985 and the Companies Act 1989 extend also to England and Wales.'-- [Lord James Douglas-Hamilton.]
Schedule 1
Scottish Conveyancing and Executry Services Board
Lord James Douglas-Hamilton : I beg to move amendment No. 60, in page 65, leave out from securing' in line 17 to end of line 23 and insert--
(a) that members of the Board have expertise or knowledge of-- (i) the provision of conveyancing and executry services ; (ii) the financial arrangements connected with the purchase and sale of heritable property ;
(iii) consumer affairs ; and
(iv) commercial affairs ; and
(b) that, so far as is reasonably practicable, the composition of the Board is such as to provide a proper balance between the interests of, on the one hand, qualified conveyancers and executry practitioners and, on the other hand, those who make use of their services.'
The amendment fulfils an undertaking that I gave in Committee to the hon. Member for Glasgow, Garscadden (Mr. Dewar).
Mr. Dewar : I shall be brief, but the amendment is worth comment. I thank the Minister for honouring his undertaking on a quite significant matter. As the hon. Gentleman knows, the Scottish Consumer Council pressed hard for the amendment, and it was right to take an interest in the executry board's membership. The amendment brings us into line with the phraseology that appears in the Courts and Legal Services Bill, which is the English equivalent. The important point is that, in appointing members to the board, the Government are committed to ensuring that
"as far as is reasonably practical, the composition of the Board is such as to provide a proper balance between the interests of, on the one hand, qualified conveyancers and executry practitioners and, on the other hand, those who make use of their services."
It is important to maintain that balance. There is a danger, which we could fall into unintentionally, of appointing to the board only people with technical skills, so that the board ends up with a collection of lawyers, qualified conveyancers and suchlike. Of course they have an important contribution to make, but it is valuable to put in statute a burden on the Government to keep in mind the need for proper representation of those who consume the services--not in a token manner, but as a means of ensuring a proper balance. I understand that to be more than someone being a lone individual playing a lone role against the serried ranks of those who may-- not in a vicious, but in a practical sense--have a vested interest in the profession that is being regulated. It is a worthwhile provision, and I thank the Minister for including it.
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Amendment agreed to.Lord James Douglas-Hamilton : I beg to move amendment No. 61, in page 66, line 6, at end insert--
(2) Where a person ceases to be a member of the Board otherwise than on the expiry of his term of office, and it appears to the Board that there are special circumstances which make it right for that person to receive compensation, the Board may, with the consent of the Secretary of State, make a payment to that person of such amount as the Board may, with the consent of the Secretary of State, determine,'
Mr. Deputy Speaker (Sir Paul Dean) : With this we may discuss Government amendments Nos. 62, 68 and 109.
Lord James Douglas-Hamilton : These are technical amendments relating to the payment of pension provisions for the ombudsman. Amendment agreed to.
Amendments made : No. 62, in page 66, line 13, leave out by way of compensation for loss of employment' and insert (including pensions, allowances or gratuities by way of compensation to or in respect of any such employee who suffers loss of employment).'
No. 63, in page 68, leave out lines 14 to 17 and insert
18. The Board may exercise the power conferred by paragraph 18A below for the following purposes--
(a) an inquiry under subsection (1) of section 18 of this Act ; (b) a review of a decision by virtue of subsection (10)(a) of that section ; and
(c) consideration by the Board whether to exercise the powers conferred on them by section ( --Board's intervention powers --) of this Act.
18A. The Board may give notice in writing to a practitioner specifying the subject matter of their investigation and requiring either or both of the following-'.
No. 64, in page 68, line 21, leave out inquiry' and insert investigation'.
No. 65, in page 68, line 24, leave out inquiry' and insert investigation".
No. 66, in page 68, line 25, leave out 18(a)' and insert 18A(a)' .-- [Lord James Douglas-Hamilton.]
Schedule 2
Publication of applications made under
section 22
Lord James Douglas-Hamilton : I beg to move amendment No. 67, in page 69, line 4, after a' insert daily'.
This is a simple amendment that responds to a point raised by the hon. and learned Member for Fife, North-East (Mr. Campbell). Originally it was tabled as amendment (a), but another, controversial amendment was also marked (a), and the two were confused. I promised to put the matter right on Report.
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