House of Commons Hansard Debates for 17 Oct 1990

Mr. Menzies Campbell : Perhaps I might be allowed a small moment of self-congratulation. This amendment is the only material alteration that I have made during the passage of the Bill. It may be a case of "Si monumentum requiris, circumspice."

Amendment agreed to.

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Schedule 3

Scottish Legal Services Ombudsman

Amendments made : No. 68, in page 69, line 25, at end insert-- (2) Where a person appointed to the office of ombudsman ceases to hold that office otherwise than on the expiry of the term of office specified in his appointment, and it appears to the Secretary of State that there are special circumstances which make it right for that person to receive compensation, the Secretary of State may, with the consent of the Treasury, make a payment to that person of such amount as the Secretary of State may, with the consent of the Treasury, determine.'

No. 109, in page 69, line 29, leave out from remuneration' to end of line 30 and insert

and as to compensation for loss of employment (which may take the form of pensions, allowances or gratuities).

4A. Neither the ombudsman nor his staff are, in such capacity, Crown servants.'-- [Lord James Douglas-Hamilton.]

Schedule 4

Judicial Appointments

Mr. Dewar : I beg to move amendment No. 140, in page 70, line 17, leave out

had a right of audience in both the Court of Session and the High Court of Judiciary'

and insert

been admitted as a solicitor in Scotland'.

I cannot find the amendment-- [Interruption.] It is obviously an interesting amendment of great importance. [Interruption.] I cannot find it and the House will have to bear with me for a moment. I have found it, and I am confirmed in my opinion that it is an interesting amendment about which the House will no doubt feel strongly. Unfortunately, it is not one that I can debate at any great length in the present circumstances. I shall briefly state my grievance, take it away and nurse it until another occasion.

I accuse the Minister--but not in any unparliamentary sense--of, if not fraud, at least a little sleight of hand. We are dealing with the right of a solicitor to be considered for a place on the bench of the Court of Session. When that was first mooted, I had the impression that any solicitor could be considered, provided that he had met the time qualification of one year in practice. It now appears that, in fact, he must have had right of audience in both the Court of Session and the High Court of Justiciary for the requisite number of years. In other words, he must be one of those strange hybrid animals--a solicitor--advocate. That is unduly restrictive.

Although it will not be common, it is possible that someone such as a senior partner in a big commercial practice, whose views on commercial law, company law and a whole range of issues are widely respected, and who would have the standing that might tempt his brother professionals to ask for his professional opinion, might aspire to that position. I hasten to add that I would never aspire to be, nor ever would be, in such a category. I am not sure that it would be right to say that, if such a person wished to aspire to what is, in many ways, the highest honour in his trade--a place on the bench of the Court of Session--he should have to go through such an odd, and at the moment untried, formula of gaining right of audience in the Court of Session and the High Court of Justiciary.

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It may be unlikely that someone will be considered for the High Court bench who has not had direct Court of Session experience. However, the spirit behind the widening of the selection was that solicitors should at least be possible candidates and, in exceptional circumstances, might even be chosen. I understand that it is now possible for a solicitor to go to the shrieval bench and therefore come up that way rather than having had active life in the Court of Session.

I shall not press the amendment, but its intention was to make it clear that a solicitor was a solicitor under the new proposals, considered on his merits, who did not have to go through the hoop or over the hurdle of becoming a solicitor-advocate in the way described in the Bill. I do not expect the Minister to accept the amendment, but as we have a few minutes in hand I hope that he will explain why the Bill will rule out a large number of solicitors from consideration--many of whom, I suspect, are the most respected members of the profession, whom many of us might think to be the most appropriate for consideration.

Lord James Douglas-Hamilton : Eligibility of criteria for appointment as a Court of Session judge was discussed in the Secretary of State's consultation paper issued in March 1989. As a result, it was suggested that the application of that principle to situations where solicitors had rights of audience in supreme courts would require the introduction of changes in statute. It was suggested that, if they had rights of audience for five years, they should be eligible. That was widely welcomed by those consulted, including the representative bodies concerned.

The hon. Member for Glasgow, Garscadden (Mr. Dewar) has proposed a major amendment, and in considering it we do not have the benefit of the views of all the different groups and organisations that have an interest in judicial appointments. The response to the consultations last year on behalf of my right hon. and learned Friend the Secretary of State did not suggest that his proposals relating to the eligibility of criteria for judicial appointments were

over-restrictive. In fact, the Bill ensures that in future all lawyers, whether advocates or solicitors, who have served as sheriffs principal or sheriffs for five years or more, should be eligible for appointment as a senator of the Court of Justice.

The amendment not only has technical deficiencies, but more importantly it would serve to weaken the eligibility criteria for the most senior judicial appointments in Scotland. Therefore, reluctantly, I must say that I cannot accept it.

Mr. Dewar : The Minister is always a man of charity and I am grateful for the word "reluctantly" in his last sentence. I shall have to be content with that.

I hope that, as the new arrangements unfold--I concede that that will be over a number of years--the restrictions about which I have complained will be reassessed and, perhaps, a more generous and unreluctant view taken of my case.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made : No. 70, in page 70, line 35, at end insert , with the consent of the Secretary of State, and'.

No. 71, in page 71, line 5, at beginning insert

Subject to paragraph 7A below,'.

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No. 72, in page 71, line 6, leave out

or the High Court of Justiciary'.

No. 73, in page 71, line 12, at end insert--

7A. A person appointed to be a temporary judge of the Court of Session shall, by virtue of such appointment, be a temporary Lord Commissioner of Justiciary in Scotland.'.

No. 74, in page 71, line 14, leave out

of the Court of Session or the High Court of Justiciary'. No. 75, in page 71, line 16, after Court' insert

of Session or the High Court of Justiciary'.

No. 76, in page 71, line 18, leave out that' and insert either'.

No. 77, in page 71, line 21, leave out that' and insert the relevant'.-- [Lord James Douglas-Hamilton.]

Schedule 7

Amendment of Enactments

Lord James Douglas-Hamilton : I beg to move amendment No. 14, in page 86, line 3, leave out 10' and insert 21'.

Mr. Deputy Speaker : With this it will be convenient to take Government amendments Nos. 15, 16 and 17.

Lord James Douglas-Hamilton : This fulfils a commitment that I gave in Committee about time scales on licensing which I think will be acceptable to the House.

Amendment agreed to.

Amendments made : No. 15, in page 86, line 7, leave out 10' and insert 21'.

No. 16, in page 86, line 10, leave out 21' and insert 28'. No. 17, in page 86, line 14, leave out 21' and insert 28'.-- [Lord James Douglas- Hamilton.]

Lord James Douglas-Hamilton : I beg to move amendment No. 18, in page 86 line 36, after 64' insert

(in subsection (1), after the words "an entertainment licence" there shall be inserted the words ", a refreshment licence" ; and) (b) '.

( I can explain the amendment in more detail if hon. Members wish. Amendment agreed to.

Lord James Douglas-Hamilton : I beg to move amendment No. 78, in page 90, leave out lines 44 to 46.

Mr. Deputy Speaker : With this it will be convenient to take Government amendment No. 85,

Lord James Douglas-Hamilton : This amendment removes redundant references.

Amendment agreed to.

Amendments made : No. 95, in page 90, line 50, at end insert-- The Community Service by Offenders (Scotland) Act 1978 . In section 4 of the Community Service by Offenders (Scotland) Act 1978 (which, amongst other things, gives the court powers to deal with failure to comply with community service order) there shall be added at the end the following subsection--

"(3) The evidence of one witness shall, for the purposes of subsection (2) above, be sufficient evidence.".'.

No. 110, in page 91, leave out from beginning of line 33 to end of line 14 on page 92 and insert--

(5) In section 26 of the 1980 Act (offence for solicitors to act as agents for unqualified persons)--

(a) in subsection (1)(c), at the beginning there shall be inserted "subject to subsection (4)," ;

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(b) in subsection (1)(d), at the beginning there shall be inserted "subject to subsection (4)," ;

(d) after subsection (3) there shall be inserted--

"(4) Subsection (1)(c) and (d) shall not apply in relation to (a) writs relating to heritable or moveable property drawn or prepared upon the account of or for the profit of independent qualified conveyancers providing conveyancing services within the meaning of section 20 (interpretation of sections 14 to 19) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 ; or (b) papers to found or oppose an application for a grant of confirmation in favour of executors drawn or prepared upon the account of or for the profit of an executry practitioner or recognised financial institution providing executry services within the meaning of the said section 20.".'-- [Lord James

Douglas-Hamilton.]

6.30 pm

Lord James Douglas-Hamilton : I beg to move amendment No. 111, in page 92, leave out line 17.

Mr. Deputy Speaker : With this it will be convenient to take Government amendment No. 87.

Lord James Douglas-Hamilton : This amendment again honours a commitment that I gave in Committee.

Amendment agreed to.

Amendments made : No. 112, in page 92, line 22, at end insert providing conveyancing services'

No. 79, in page 92, line 36, at end insert--

(7A) In section 42A (powers of Council where inadequate professional services alleged), at the end of subsection (2) there shall be inserted the following paragraph--

"(d) to direct the solicitor to pay to the client by way of compensation such sum, not exceeding £1,000, as the Council may specify.".'

No. 80, in page 93, line 7, at end insert (a)'.

No. 81, in page 93, line 10, at end insert--

and

(b) after subsection (2)(c) there shall be inserted the following paragraph --

"(d) to direct the solicitor to pay to the client by way of compensation such sum, not exceeding £1,000, as the Tribunal may specify.".'

No. 126, in page 93, line 22, at end insert--

(11A) After section 56 there shall be inserted the following section--

"Further provision as to compensation awards.

56A.--(1) The taking of any steps under section 42A(2) or 53A(2) shall not be founded upon in any proceedings for the purpose of showing that the solicitor in respect of whom the steps were taken was negligent.

(2) A direction under section 42A(2)(d) or 53A(2)(d) to a solicitor to pay compensation to a client shall not prejudice any right of that client to take proceedings against that solicitor for damages in respect of any loss which he alleges he has suffered as a result of that solicitor's negligence, and any sum directed to be paid to that client under either of those provisions may be taken into account in the computation of any award of damages made to him in any such proceedings.

(3) The Secretary of State may by order made by statutory instrument amend subsection (2)(d) of sections 42A and 53A by substituting for the sum for the time being specified in those provisions such other sum as he considers appropriate.

(4) Before making any such order the Secretary of State shall consult the Council.

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(5) An order made under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.".' No. 83, in page 93, leave out lines 23 to 28 and insert

(12) In section 63 (penalties and time limit for prosecution of offences)--

(a) in subsection (1)--

(i) for the words "level 3" there shall be substituted the words "level 4" ; and

(ii) the words from "and to imprisonment" to the end shall cease to have effect ; and

(b) after subsection (2) there shall be inserted the following subsections- -

"(3) Where an offence under this Act is committed by a body corporate and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of-- (a) any director, secretary or other similar officer of the body corporate ; or

(b) any person who was purporting to act in any such capacity, he (as well as the body corporate) shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

(4) Where an offence under this Act is committed by a partnership or by an unincorporated association (other than a partnership) and is proved to have been committed with the consent or connivance of a partner in the partnership or, as the case may be, a person concerned in the management or control of the association, he (as well as the partnership or association) shall be guilty of the offence and shall be liable to and punished accordingly.".'

No. 113, in page 93, line 29, leave out section 65(1)' and insert subsection (1) of section 65'.

No. 114, in page 93, line 31, leave out and' and insert " foreign lawyer" means a person who is not a solicitor or an advocate but who is a member, and entitled to practise as such, of a legal profession regulated within a jurisdiction outwith Scotland ;" ;

(aa) after the definition of "judge" there shall be inserted "law centre" means a body--

(a) established for the purpose of providing legal services to the public generally as well as to individual members of the public ; and

(b) which does not distribute any profits made either to its members or otherwise, but reinvests any such profits for the purposes of the law centre ;" ;

(ab) after the definition of "Lord President" there shall be inserted--

"multi-disciplinary practice" means a body corporate or a partnership--

(a) having as one of its directors or, as the case may be, partners, a solicitor or an incorporated practice ; and

(b) which offers services, including professional services such as are provided by individual solicitors, to the public ; and (c) where that solicitor or incorporated practice carries out, or supervises the carrying out of, any such professional services as may lawfully be carried out only by a solicitor ;

"multi-national practice" means--

(a) a partnership whose members are solicitors or incorporated practices and registered foreign lawyers ; or

(b) a body corporate whose members include registered foreign lawyers, and membership of which is restricted to solicitors, incorporated practices, registered foreign lawyers and other multi-national practices ;" ;

(ac) after the definition of "property" there shall be inserted--

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