| Previous Section | Index | Home Page |
Mr. Bill Walker (North Tayside): As one whose blood is all Scottish, may I ask whether the hon. Gentleman recognises the convention on handling Scottish business in the House? The matter is very sensitive. Scottish law is different and we do not as a matter of practice change the laws affecting Scotland without Scottish Members--either in the Scottish Grand Committee or in Committee--having the opportunity to debate and discuss the merits of doing so.
Mr. Boateng: Quite so. The absence of Scottish Members was a very good reason why members of the Committee did not dwell too long on the subject. We are blessed tonight with the presence of a number of Scottish Members and are therefore able to range more widely over Scottish matters than we otherwise would.
We are also fortunate to have received representations from a number of Scottish organisations that have asked specifically for the matter to be raised. I know, for instance, that the Scottish Media Lawyers Society has contacted my hon. Friend the Member for Cunninghame, North (Mr. Wilson), who was present earlier. He has asked me to raise that contact on his behalf and to express his view that the case does not seem to be made out for a distinction between England and Wales and Scotland on the limitation period. I am bound to say that the Scottish media lawyers share the view expressed in "Bringing Harmony into the Law of Defamation", an article by Alistair Bonnington, who may be known to a number of hon. Members. The society took the view--a view with
which I disagree--that it should be one year, and it was anxious to harmonise the position in Scotland with that in England and Wales.
Another, perhaps more authoritative, body--in the sense that it has a wider overview and a specific general interest in the matter--is the Law Society of Scotland. It was very much of the view that it would be quite wrong to change the Scottish position and to bring it into line with English law, as the Bill proposes. The society took the view--which accords with my own as regards the law in England and Wales--that three years is the right time, not least because of the problems outlined by Mr. Clancy of the society. He said that
It seems clear that the notion that there should be a change from three years to one year--or from six years to one year--has not found favour with the Scottish Law Commission. But has the commission been consulted? It certainly should have been. If so, what is its view? Is it--as one suspects--that there are no valid arguments that would justify reducing the period in Scotland during which an action for defamation can be brought to 12 months? We want to be sure that the commission has been consulted and we would like to know its view.
What about the Scottish Courts Administration? Is it correct that it too opposes a reduction? We would like the Minister to answer those questions within the general context of hon. Members' concerns, not least about the series of amendments that we discussed earlier to clause 13. Have those promulgating the Bill adequately considered the position in Scotland? I have heard nothing during the debates on Second Reading or in the other place about the impact of clause 13 on the Claim of Right Act 1689 as opposed to the Bill of Rights 1688.
Mr. Dalyell:
If, as I suspect, the answer is no and those bodies have not been consulted, is there not a case for a statement to be made by the Lord Advocate at the Scottish Grand Committee during its peripatetic round? Scottish Ministers should be questioned on this complex but important subject.
Mr. Boateng:
Ministers may feel that the matter should be brought to the attention of Scottish Law Officers. It is not for me to trespass on this matter now, but those interested in Scottish constitutional matters sometimes believe that these matters are not always treated with the seriousness that they deserve. I hope that the Minister will take time to consider the matters that I have raised in this short speech and satisfy the House that my concerns have indeed been met.
Mr. Menzies Campbell:
I hope that it will not be seen as a reflection on the right hon. Member for City of London and Westminster, South (Mr. Brooke), who introduced the new clause, if I say that, in this matter, I thought that his competence exceeded his enthusiasm for the measure by some considerable distance.
The House would do well to reject the amendment. Not only was no Scottish Minister on the Standing Committee, but there was no Scottish Member either and, this evening, we do not have a Scottish Minister with us. If the House passed such a measure without proper consideration of the sensitivities, and perhaps the realities, of Scottish law, it might act as an effective recruiting sergeant for those of us who believe that domestic Scottish law should be dealt with in a domestic Scottish Parliament, based in Edinburgh. Perhaps to that extent I should encourage the right hon. Member for City of London and Westminster, South, but for the purpose of this evening it is right to oppose the new clause that he moved.
The hon. Member for North Tayside (Mr. Walker) said in an intervention that it was a convention in such circumstances that the law of Scotland was not changed. Would that he was always correct about that. I can think of a number of recent criminal justice measures that, towards the end of their passage, dealt with Scotland, but never had a proper airing in Committee or on the Floor of the House from a Scottish point of view.
The position is this: in Scotland, the law of prescription and limitation, which is essentially what the new clause is about, is one corpus of law. It is to be found in the Prescription and Limitation (Scotland) Act 1973. It is wholly inappropriate to change that corpus of law on a case-by-case basis in a series of statutes.
One of the advantages of having the provisions in a single Act of Parliament is that it makes for ease of reference for practitioners and public alike and that any proposed change to the principal Act can be assessed against the effectiveness of other statutory provisions relating to prescription and limitation. It is wholly inappropriate to change the law in that regard in a piecemeal fashion.
I 'too' had the brief from the Scottish media lawyers. I have spoken to Mr. Bonnington and explained that I do not share his point of view on the matter. I understand the arguments that lie behind his views, but it would be inappropriate to interfere--I appreciate that that is a pejorative word, but I use it advisedly--in that way with the law of prescription and limitation in Scotland.
The Law Society of Scotland has evidenced its opposition. I should be interested to know what Scottish Ministers have to say, particularly the Lord Advocate. As I am engaged in an exercise that is as much one of education as of advocacy, I can tell the hon. Member for Brent, South (Mr. Boateng), who spoke for the Labour party, that the Scottish Courts Administration concerns itself with the numbers of courts, sheriffs, witness rooms and things of that kind. Policy has not yet fallen within its responsibility.
Policy is a matter for Government, and policy in these matters is the responsibility of Scottish Law Officers and Scottish Ministers. Policy is a matter on which those who practise the law in Scotland are entitled to have their voice heard. The clear view of the Law Society of Scotland and of the Law Commission, I understand, is that no change should be made. On that basis, I suggest that the amendment should not detain the House too long. I hope that the new clause is not pushed to a vote. If it is, I certainly urge anyone who has an interest in the integrity of Scottish law to vote against it.
Mr. Bill Walker:
I am worried about the precedent that would be created if new clause 11 were accepted.
I am delighted that this is not a Government proposal. The Government would not allow such a proposal without Scottish Ministers being present or without the Scots being given the opportunity fully and adequately to debate the matter. Whatever its merits, in the interests of maintaining the integrity of our unitary Parliament and that of the Union, we should have no truck with new clause 11, as proposed by two English Members.
The Parliamentary Secretary, Lord Chancellor's Department (Mr. Gary Streeter):
I am grateful to the hon. Member for Braveheart, South for sharing his Celtic antecedents with the House and to my right hon. Friend the Member for City of London and Westminster, South (Mr. Brooke) for tabling the new clause, which allows us to have this important debate. It would mean that the limitation period of one year that we propose for defamation proceedings in England and Wales would also be introduced for Scotland. I hope that in a brief but forceful argument I shall persuade him that it is misguided.
My right hon. Friend knows that the Neill committee did not consider the law in Scotland. Scottish Ministers consulted last year on whether the limitation period in Scots law should be reduced to one year, in line with that proposed for the rest of the United Kingdom. Ministers attached particular weight--and this answers one of questions of the hon. Member for Brent, South(Mr. Boateng)--to the views of the Scottish Law Commission, which strongly opposed any change, as did the Law Society of Scotland. Accordingly, it is not the Government's intention to make that reduction at this time.
I can reassure the hon. and learned Member for Fife, North-East (Mr. Campbell), who spoke so eloquently, that my speech has been approved personally by my right hon. Friend the Secretary of State for Scotland. The jokes are mine, but he has approved the speech. I am glad of the support of my hon. Friend the Member for North Tayside (Mr. Walker), who made a valuable and important point.
It is worth briefly setting out the background. There are several important respects in which Scots law is very different from English law. My right hon. Friend the Member for City of London and Westminster, South knows that Scots law is based on Roman law, whereas the law in England and Wales has a common law base, with each tradition having evolved separately over many centuries. The two legal systems have many striking differences. A prime example is that, under the law of England and Wales, consideration is required to establish a contract, whereas, bizarrely, in Scotland a unilateral promise with no consideration moving to the promisor--I speak as a law student of many years ago--can constitute an enforceable obligation.
The law on the purchase and sale of land is different, as is the system of land tenure generally. There are significant differences in family law and in the law of succession. Even in the law and procedure for plaintiffs and defendants in defamation proceedings, there are several differences apart from the limitation period. For example, the assessment of damages is different in Scotland and is more likely to influence the potential plaintiff's choice of forum than is the limitation period. Punitive and exemplary damages are permitted in England but not in Scotland. Newspapers, broadcasters and their advisers already have to deal with those differences and do so with little difficulty.
Section 19(a) of the Prescription and Limitation (Scotland) Act 1973 already gives a Scottish court an unfettered discretion to override time limits where it considers it equitable to do so. That power of discretion applies to all time limits in personal injury actions and wrongful death actions as well as to defamation actions. It is not considered necessary or desirable to restrict the wide discretionary powers that Scottish courts already have to override time limits.
"legal aid is not available for defamation actions and it would unduly favour potential defenders (who may be substantial organisations) if the potential pursuer's rights are limited to their exercise within one year of the delict (or civil wrong) having been committed."
There is a great deal of sense in that.
9.15 pm
| Next Section
| Index | Home Page |