Orders of the Day — Administration of Justice (Scotland) Bill

– in the House of Commons at 12:00 am on 7th December 1948.

Alert me about debates like this

Considered in Committee.

[Mr. BOWLES in the Chair]

CLAUSE 1.—(Number of judges of Court of Session.)

4.17 p.m.

Photo of Lieut-Colonel Sir George Hutchison Lieut-Colonel Sir George Hutchison , Edinburgh West

I beg to move, in page 1, line 10, to leave out from "State," to "is," in line 11.

We do not like the idea of dual control entering into the administration of justice in Scotland. If the Bill is really necessary—and on the statistical information which the Lord Advocate gave us in the Second Reading Debate it is necessary—we feel that the Treasury should be obliged to find the funds to meet its provisions. It seems to us that the sole responsibility for deciding whether one or two additional judges should be appointed ought to rest with the Secretary of State for Scotland who by virtue of his position is best fitted to make a decision of this kind.

It might well be that if the Treasury are going to be allowed to have some say in the matter we should find an unsympathetic Chancellor of the Exchequer insisting that the existing 13 judges should sit for longer periods, to the detriment of the administration of the law, rather than permitting one or two additional judges to be appointed. In our view that would be rather a dangerous thing to allow to happen, especially in criminal cases where it might well be that the life of a man or woman is at stake, inasmuch as too great mental and physical strain might be thrust upon the man who by virtue of his high office has to sit in judgment in interpreting the law of the land. We therefore suggest that the Government would be well advised to consider the omission of the words: With the concurrence of the Treasury.

Photo of Mr Arthur Woodburn Mr Arthur Woodburn , Clackmannan and Eastern

I sympathise with the idea of this Amendment, but the appointment of judges is rather different from ordinary Government business. It is a matter for His Majesty, and the Secretary of State recommends the appointment of judges. The payment of the judges' salaries comes out of the Consolidated Fund and it is a courtesy that the Treasury, which is expected to pay the salaries, ought to be consulted when an appointment is made. Therefore, it is rather different from what we call the collective responsibility of a Government. This is the responsibility of the Secretary of State to make a recommendation to His Majesty, but, clearly, the payment does not come from the Secretary of State but from the Treasury. It is common form that in these matters the Treasury is consulted.

There is ample precedent for such a requirement. For instance, Section 1 (1) of the Appellate Jurisdiction Act, 1947, Section 1 (1) of the Supreme Court of Judicature (Amendment) Acts, 1938 and 1944, which made similar provision in regard to the lords of appeal in ordinary. The puisne judges of the High Court, and the judges in the Chancery Division respectively, all require the Lord Chancellor, with the concurrence of the Treasury, to be satisfied that the filling of the vacancy is necessary. Therefore, I would ask the Committee, if the hon. and gallant Member is not willing to withdraw the Amendment, to reject it.

Photo of Lieut-Colonel Sir George Hutchison Lieut-Colonel Sir George Hutchison , Edinburgh West

Could the right hon. Gentleman give us an assurance that the word of the Lord Advocate and the Secretary of State would carry such great weight as to overbear the Treasury on a matter of this importance?

Photo of Mr Arthur Woodburn Mr Arthur Woodburn , Clackmannan and Eastern

I should think that the existence of this Bill, in which the Treasury have concurred, to increase by two the number of judges who are necessary, is sufficient indication that nobody is standing in the way. This Bill is here to promote that. We do not want to look this gift horse in the mouth by questioning its validity.

Photo of Commander Thomas Galbraith Commander Thomas Galbraith , Glasgow Pollok

We want to be quite certain on this matter. The right hon. Gentleman stressed the point that the Bill would not have been here but for the fact that the Treasury felt that additional judges were necessary. We still feel, however—and we should like his definite assurance on the point—that the concurrence of the Treasury is a matter of courtesy. If it is, indeed, a matter of courtesy and the appointment will be made when the right hon. Gentleman feels it ought to be made, then we have nothing more to say, and in those circumstances my hon. and gallant Friend might be willing to withdraw his Amendment. However, we want the assurance of the right hon. Gentleman, if he can give it, that this is purely a matter of courtesy and routine, and that if he thinks an additional judge is necessary, and that there is work for that judge to do, then the judge will be duly appointed.

Photo of Mr Arthur Woodburn Mr Arthur Woodburn , Clackmannan and Eastern

There are two points. First, there is the necessity to appoint the judge, which is a matter for myself to recommend to His Majesty. That puts upon me a further obligation to ensure that the money is available to pay his salary, but that is a matter which is not within my jurisdiction. Clearly, if I am to appoint a judge I must at the same time make arrangements that his salary will be paid. For that purpose the concurrence of the Treasury is necessary.

Photo of Mr Eustace Willis Mr Eustace Willis , Edinburgh North

Arising out of what my right hon. Friend has just said, and to clear my own mind, may I ask does this Bill authorise the additional expenditure to cover the cost of employing two judges? Or is it the case that this Bill only authorises the appointment of two additional judges, but does not provide the finance wherewith to do it? If it provides the finance, then this Amendment is beside the point.

Photo of Mr Arthur Woodburn Mr Arthur Woodburn , Clackmannan and Eastern

It authorises it, but does not provide it. The finance is provided out of the Consolidated Fund by the Treasury. If, in ordinary administration, we were appointing someone to a job, we would notify the cashier and get his concurrence in order to see that the man got his pay.

Photo of Colonel Sir Alan Gomme-Duncan Colonel Sir Alan Gomme-Duncan , Perth

I raised a point on Second Reading but had to go away before the Lord Advocate replied. It is this: can we be absolutely certain that the cashier is not in a position to say "no" to the appointment of the judge? We agree that as a matter of courtesy it should be referred to the Treasury, but there must be no doubt in the mind of anyone that they will not have power to say "no" when the Secretary of State, who represents Scotland in the matter, has decided that it is necessary.

Photo of Mr Arthur Woodburn Mr Arthur Woodburn , Clackmannan and Eastern

Constitutionally, the Secretary of State alone recommends to the King the appointment of the judge.

Photo of Mr Walter Elliot Mr Walter Elliot , Combined Scottish Universities

The Secretary of State said in the course of the Second Reading Debate: … the number of judges should be increased from 13 to a maximum of 15, with the proviso that appointments in excess of 13 will not be made at any time unless the Secretary of State, with the concurrence of the Treasury, is satisfied that the state of business so requires."—[OFFICIAL REPORT, 2nd December. 1948; Vol. 458, col. 2288.] It is true that the Secretary of State has the consent of the Treasury to increase, in principle, the number of judges, but the actual appointments would involve the fact that the Secretary of State had convinced the Treasury that the state of business required it. That indicates that some of the discretion at least is in the hands of the Treasury and that it is not solely a matter of form.

The Secretary of State went on to indicate that it might be that he would ask for the appointment of only one judge, and that the appointment of the second judge mentioned here would be a matter for further consideration. We all sympathise with the right hon. Gentleman in that he is following the form, but we also want to be sure that it is only a form and a precedent that he is following, and that he will not require to satisfy the Treasury as to the state of business in the Scottish Law Courts. That does not seem to us to be the sort of thing that the Treasury ought independently to inquire into, and the ipse dixit of the Secretary of State ought, in our view, to be enough.

Photo of Mr Emrys Hughes Mr Emrys Hughes , South Ayrshire

What is to be the remuneration of this judge and how long has he to serve before receiving a pension? What is the pension to be? Could the Secretary of State give us some comparison between the rate of pay of judges in Scotland and England?

Photo of Mr John Wheatley Mr John Wheatley , Edinburgh East

The salary of a lord ordinary or any other judge, exclusive of the Lord President and the Lord Justice Clerk is £3,600 per annum. They are entitled to a full pension of two-thirds of their salary on completing 15 years' service. They are entitled to a pension if they have to retire within the 15 years on account of physical or mental illness. The amount of pension in such cases varies according to the number of years' service. Without notice, I could not give the exact comparison between the salaries of Scottish and English judges, but, roughly speaking, the comparable figure in England is £5,000.

The Deputy-Chairman:

We cannot have too much discussion about the actual remuneration on this rather narrow point. It may arise on the Question that the Clause stand part.

Photo of Lieut-Colonel Sir George Hutchison Lieut-Colonel Sir George Hutchison , Edinburgh West

In view of the partial assurance that the Secretary of State has been able to give us, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

4.30 p.m.

Motion made, and Question proposed, "That the Clause stand part of the Bill."

Photo of Mr Eustace Willis Mr Eustace Willis , Edinburgh North

May we have an assurance from the Lord Advocate that in the event of these judges being appointed, as he visualises, for a short time simply to clear arrears of work, and if they work only for two or three years, we are not going to give them a pension?

Photo of Mr Emrys Hughes Mr Emrys Hughes , South Ayrshire

The point I should like to mention concerns the question of salaries. It seems to me that if the new judge for Scotland is to be paid £3,500, and the comparable salary of an English judge is £5,000, either the Scottish judge is paid too low or the English judge is paid too high. I suggest that in the course of negotiations with the Treasury the Secretary of State could assist the Treasury in preserving the nation's finances—

The Deputy-Chairman:

The hon. Member cannot discuss that at this stage. The Question is, "That the Clause stand part."

Photo of Commander Thomas Galbraith Commander Thomas Galbraith , Glasgow Pollok

I should like to put a question to the Lord Advocate. We are told in the Financial and Explanatory Memorandum to the Bill that the estimated annual cost to the Exchequer of the appointment of these additional judges is £9,200 a year. If the salary is £3,600—and that I have no reason to doubt—how do we account for the additional sum involved?

Photo of Mr Emrys Hughes Mr Emrys Hughes , South Ayrshire

I should like to have this point of Order cleared up, Mr. Bowles. I was not going to suggest a reduction of salary. All I was going to suggest was that the Secretary of State for Scotland should convey to the Treasury the fact which has been brought out in the Committee with a view to getting the salaries of judges in England reduced to the reasonable level of those in Scotland.

The Deputy-Chairman:

No, I am afraid we cannot do that.

Photo of Mr John Wheatley Mr John Wheatley , Edinburgh East

The point raised by my hon. Friend the Member for North Edinburgh (Mr. Willis) seems to indicate that these appointments are merely for a transitory period and that when the volume of work which is now crowding out the courts has been dealt with there will be no further need for such judges. My hon. Friend trusted that in these circumstances the person or the persons appointed would not after two or three years be put on a pension on the completion of his job. That is entirely the wrong picture. The judge will be appointed—if one is appointed—under the terms of the Bill and he will act as an ordinary judge. In course of time another judge may die or retire. When that position arises, the situation will be reviewed to ascertain whether his position falls to be refilled. That will be determined by the volume of work then in the courts. Accordingly, the new appointee under the Bill will be expected to complete, and we hope he will have the life to enjoy, his full term of 15 years in office.

The hon. and gallant Member for Pollok (Commander Galbraith) raised a query of how we arrived at the figure of £9,200 in the Explanatory and Financial Memorandum. We are taking power to extend the number of judges by two. Provision for this comes to within the region of £7,200, if my mathematics are correct. When a new judge is appointed, however, probably we shall have to appoint a clerk to him, which will involve additional administrative expense. Judges require clerks to help them with the ordinary routine work of the courts and provision has to be made accordingly. There are the personal clerk, the clerk of court and various other factors which have to be taken into account. Therefore, in the Financial Memorandum, we had to take a rather generous figure to ensure the inclusion of all these incidental expenses which are ancillary to, but necessary for, the appointment of a new judge.

Clause ordered to stand part of the Bill.

CLAUSE 2.—(Sessions of the Court.)

Photo of Mr John Wheatley Mr John Wheatley , Edinburgh East

I beg to move, in page 1, line 21, to leave out, passed in the month of July in each year. When the Clause was originally framed, and as it appears in the Bill, it provided that the Act of Sederunt fixing the session of the court should be passed in the month of July each year. From a practical viewpoint that would be very inconvenient, because, if the courts did not know until July of a particular year what the sessions were going to be for the succeeding year, it would mean that diets for proof and jury trial and other diets could not be fixed with assurance for the beginning of the new session. These diets are often fixed months ahead. At present in the Court of Session we are actually fixing diets for proofs and jury trials for October or November. If we did not know until the Act of Sederunt was passed in July when the ordinary session was to begin, it would be impossible to fix these diets prior to the passing of the Act of Sederunt. Therefore, we feel that by removing the words contained in the Amendment, and leaving it to the court to fix the sessions by Act of Sederunt at a time most convenient for the business of the court, we are making an improvement to the Clause.

Photo of Mr Walter Elliot Mr Walter Elliot , Combined Scottish Universities

I think the choice before us is either to fix by Act of Parliament or else to give discretion to the court itself. The Amendment gives a further discretion, as I understand it, and for that reason we on this side of the Committee should be disposed to support it. I have taken advice from such gentlemen learned in the law as I could, and I think the consensus of opinion is, as the Lord Advocate stated on Second Reading, that the discretion being given to the courts will be an advantage both to the courts and to possible litigants in Scotland. We do not propose to maintain any objection to the proposal and if discretion is to be given, we think it should be wholehearted. Therefore, we support the Amendment.

Amendment agreed to.

Clause, as amended, ordered to stand part of the Bill.

Clause 3 ordered to stand part of the Bill.

CLAUSE 4.—(Qualification for office of sheriff substitute, etc.)

Photo of Lieut-Colonel Sir George Hutchison Lieut-Colonel Sir George Hutchison , Edinburgh West

I beg to move, in page 2, line 7, after "qualified," to insert: and has been for at least five years in practice as a solicitor or advocate. We do not think that the wording of the Clause as it stands is sufficiently precise. Everybody who knows anything about the legal and social history of Scotland must be aware that the sheriff-substitute is an extremely important and generally, I am glad to say, a very much respected element in the community. It would be deplorable if the high standard of efficiency and repute of the sheriff-substitute was in any way diminished. We suggest, therefore, that the Clause should be strengthened by this Amendment to ensure that any law agent who is appointed to this important office will, in fact, be well versed in the pursuit of actual legal practice. Unless such a provision is inserted in the Clause it seems that it would be possible, under the Bill as it stands, for any person who has passed the law agents' examination to be qualified five years later to act as a sheriff-substitute although, in point of fact, he may not have had any practical experience in legal work. For this reason we hope that the Government will see fit to strengthen the Clause by the acceptance of this Amendment.

Photo of Mr Emrys Hughes Mr Emrys Hughes , South Ayrshire

I think there is an objection to this Amendment. Quite a number of qualified legal people who might be appointed to these positions are not in actual practice in the courts. For example, on the staffs of county councils throughout Scotland there are a large number of people who are legally trained but have not been in actual practice. I do not know whether that occurred to the hon. and gallant Member for West Edinburgh (Lieut.-Commander Hutchison) but they would be disqualified by his Amendment, and those on the staffs of municipal and local government bodies who otherwise would be eligible and thoroughly qualified for such positions would be debarred. It is not absolutely necessary to have a lawyer who is regularly practising in the courts to take up such a position, but the Amendment would bar people who have municipal training, perhaps a more desirable training than in the courts.

Photo of Mr John Wheatley Mr John Wheatley , Edinburgh East

As was explained on Second Reading, the purpose of this Clause was to rectify a drafting point in the 1907 Sheriff Courts (Scotland) Act in order to make it quite clear that a person with five years' standing could aggregate his period of standing in one branch of the profession with his period of standing in another branch of the profession. The 1907 Act, which was the basis from which we proceeded, uses the words: five years standing in the profession and did not contain any such qualifications as would be attached by this Amendment. While I have every sympathy with the sentiments expressed by the hon. and gallant Member for West Edinburgh (Lieut.-Commander Hutchison) I cannot accept the Amendment, because it would be very difficult to find out exactly what is meant by the words in practice as a solicitor or advocate. It may be easy in the case of a solicitor, by saying that it means a person who has taken out his solicitor's practising certificate, but, in the case of an advocate would one qualify a person who had one undefended divorce case in a year, or a person walking the floor of Parliament House eager and anxious for work, but whose talents have not been recognised? There are many people who are very suitable for this position, even though they may not be in actual practice.

There is a classic case which shows the difficulty into which one gets when one makes these conditions and then selects a person who is admirably qualified but does not come within those conditions. In an Act of 1 and 2 Victoria it was provided that a sheriff-principal should be a person in practice and habitual attendance at Parliament House. An appointment was made in the Glasgow Sheriff Court of a sheriff-principal who was a professor of law at Glasgow University. But someone who was not very keen on this individual drew attention to the fact and an amending Act had to be passed in 1887 to regularise the appointment of this Professor Berry. It was a very short Act to regularise the position of Professor Berry.

We do not want to repeat that procedure, because there may be someone fully qualified but who would not come within the definition provided by this Amendment, if one could get a proper definition of it. The existing practice has been that the nomination is made by the Lord Advocate to the Secretary of State for Scotland and the Secretary of State for Scotland is responsible for the appointment. The very tribute which the hon. and gallant Member paid to the shrieval bench in Scotland is eloquent testimony to the manner in which that system has worked in the past. For these reasons, I ask the hon. and gallant Member to withdraw the Amendment, because I think after that explanation he will probably understand that it is not really justified.

4.45 p.m.

Photo of Mr Walter Elliot Mr Walter Elliot , Combined Scottish Universities

We should be disposed to trust the discretion of the Lord Advocate if it were not for the intervention of the hon. Member for South Ayrshire (Mr. Emrys Hughes) who brought up a new class of case which I would like to see excluded from such a choice. I do not think a person who has been on the staff of a county council or municipality would be a proper person—

Photo of Mr Emrys Hughes Mr Emrys Hughes , South Ayrshire

That did actually take place and the county clerk of Ayr was asked at one time to act in this capacity.

Photo of Mr Walter Elliot Mr Walter Elliot , Combined Scottish Universities

We have had very bitter criticisms by the hon. Member of officials of the county of Ayr. I do not think his example is very well chosen from his point of view. Naturally, at the end of the day we must trust to the discretion of the recommendation of the 'Lord Advocate and the concurrence of the Secretary of State for Scotland. We should be wholly disposed to do so in the light of the traditions of the great offices and the standing and dignity of the shrieval bench of Scotland. We only wished to assure ourselves that there was no intention of making a change here and that the Lord Advocate intended that the customs which have guided Lord Advocates in the past, should guide him in the future. I think he has given those assurances, and in view of that perhaps my hon. and gallant Friend the Member for West Edinburgh (Lieut.-Commander Hutchison) will withdraw his Amendment.

Photo of Lieut-Colonel Sir George Hutchison Lieut-Colonel Sir George Hutchison , Edinburgh West

I was glad to notice that the Lord Advocate appreciated and to some extent agreed with my sentiments, and in view of what he and my right hon. and gallant Friend the Member for Scottish Universities (Lieut.-Colonel Elliot) have said, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Motion made, and Question proposed, "That the Clause stand part of the Bill."

Mr. McKie:

I do not want to introduce a jarring note nor in any way to dissent from what my hon. Friends above the Gangway have said in regard to the proposed change and the qualifications of sheriffs-substitute, but I do not think we should allow the Clause to be added to the Bill without at least one hon. Member being allowed to express some regret at the proposed change. In doing so, I do not wish to cast any slur on the office of Solicitor-General in Scotland, but for a very long period of time now the sheriffs-substitute have been drawn entirely from members of the legal profession who are advocates.

Mr. McKie:

I see the Lord Advocate dissenting. I should have said almost entirely. When I think of the great figures of the Scottish Bar who have adorned the office of sheriff-substitute, I contemplate this change with great regret. I think particularly of Sir Walter Scott, whose name was mentioned in an earlier Debate, by my right hon. and gallant Friend the Member for the Scottish Universities (Lieut.-Colonel Elliot). He was sheriff-substitute of Selkirk and was called "The Shirra." Sir Walter Scott, writing of Galloway, makes Guy Mannering go to Edinburgh and Mr. Pleydell points out to Colonel Mannering the great significance that attached, to the office of sheriff-substitute. In the past, the office of sheriff-substitute in rural Scotland has been looked upon almost with the same degree of sanctity as attaches to the position of parish minister or doctor, and certainly the rural community will not view with feelings of satisfaction the proposed change whereby a solicitor may be allowed to fill the post—

Mr. McKie:

The hon. Member says there is no change, but there is a permissive change. It will be permissible in the future to do things in this direction which it has not been permissible to do in the past. I am glad that the Committee has been favoured this afternoon with the presence of the hon. Member for Fermanagh and Tyrone (Mr. Cunningham), who by the interest he is evincing in our proceedings is showing that in Ulster—

The Deputy-Chairman:

This Clause does not apply to Ulster but only to Scotland.

Mr. McKie:

I was just saying that by the keen interest the hon. Member is evincing in our proceedings he is showing that even in the border counties of Ulster the course of Scottish law is followed with considerable interest.

I leave that point. I now wish to ask the Lord Advocate or the Secretary of State for Scotland a word about Subsection (2), which deals with the appointment which may be made when the office of sheriff-substitute is vacant. How will the proposed words square with the words of Subsection (1) regarding the qualifications of the person who may be appointed to fill the vacancy in the interim? Who is to decide what the qualifications shall be? It is stated that the Secretary of State shall be the "great panjandrum" on this point. Many of us in this Committee have thought for a long time that the Secretary of State for Scotland has been loading himself with many increased burdens which he would be well advised not to take upon his shoulders.

He now comes forward, or the Government, by presenting this Bill, compel him to come forward, and say what the qualifications shall be for a person who is appointed to fill in the interim the position of a sheriff-substitute in Scotland. Will the right hon. Gentleman be good enough to enlighten me on what he thinks these qualifications should be? Must such a person be a solicitor or advocate, or may he be a person in the position of an honorary sheriff-substitute in Scotland? The right hon. Gentleman will agree with me that an honorary sheriff-substitute may have no qualifications either as a solicitor or as an advocate. Is it proposed in certain circumstances to endow honorary sheriffs-substitute with the powers which fall to sheriffs-substitute alone?

Photo of Mr Arthur Woodburn Mr Arthur Woodburn , Clackmannan and Eastern

The qualifications in connection with Subsection (2) in regard to anyone who is appointed are decided by the 1907 Act. They must have the same qualifications as the sheriff-substitute himself, as laid down in Subsection (1). I wish to correct a slight misapprehension on the part of the hon. Member. He seems to think that we have now made some change by which a solicitor can be appointed, seeming to imply that a solicitor could not previously be appointed. A former hon. Member for Dumbartonshire, Mr. Tom Cassels, who was a solicitor, was appointed as sheriff-substitute in Inverness county. It is not without precedent for solicitors to be appointed to this post.

The change which has been made is slightly different. It is that a person does not need to have been five years a solicitor or advocate; he may have been qualified for five years partly as a solicitor and partly as an advocate. That five years will qualify him for the post. I suggest that we have to take for granted that the person who occupies the position of Secretary of State or Lord-Advocate in Scotland at any time can be trusted not to appoint people who are not qualified. But because a person has these qualifications it does not mean that he is fit to be appointed. Therefore, his total ensemble, so to speak, must be taken into account in making such an appointment. As the right hon. Gentleman has pointed out, appointments in the past have shown that that discretion has been properly used.

Clause ordered to stand part of the Bill.

Clause 5 ordered to stand part of the Bill.

Schedule agreed to.

Motion made, and Question proposed, "That the Bill, as amended, be reported to the House."

Photo of Mr Colin Thornton-Kemsley Mr Colin Thornton-Kemsley , Kincardine and Western

On a point of Order. I have put down a new Clause—[Alteration of Titles].

The Deputy-Chairman:

It is out of Order. It is quite inconsistent with Clause 4, which we have just passed. The hon. Member is seeking to change the titles of various judicial officers in Scotland. He has failed to put down Amendments to Clause 4, which would have been the right place for him to seek to make that change. Therefore, his proposed new Clause is out of Order.

Photo of Mr Colin Thornton-Kemsley Mr Colin Thornton-Kemsley , Kincardine and Western

Thank you, Mr. Bowles. I am a layman in these matters and I wished to take advice upon the subject.

The Deputy-Chairman:

I hope that the hon. Member will now see that it is quite obvious that I could not rule otherwise than I have done.

Bill, as amended, reported.

Bill reported, with an Amendment; as amended, considered.

Motion made, and Question proposed, "That the Bill be now read the Third time."

4.57 p.m.

Photo of Mr Colin Thornton-Kemsley Mr Colin Thornton-Kemsley , Kincardine and Western

I wish to call attention to an omission from the Bill.

Photo of Mr John Wheatley Mr John Wheatley , Edinburgh East

On a point of Order. As the hon. and gallant Member is prefacing his remarks by saying that he wishes to draw attention to an omission from the Bill, I respectfully submit that he is out of Order.

Photo of Mr Francis Bowles Mr Francis Bowles , Nuneaton

On Third Reading we may discuss what is in the Bill, not what is not in it.

Photo of Mr Walter Elliot Mr Walter Elliot , Combined Scottish Universities

Sheriffs-substitute are dealt with in the Bill and I think that my hon. Friend would clearly be in Order in discussing the sheriff-substitute.

Photo of Mr Francis Bowles Mr Francis Bowles , Nuneaton

The hon. Member said that he regretted that something was not in the Bill. However, we shall see how he proceeds.

Photo of Mr Colin Thornton-Kemsley Mr Colin Thornton-Kemsley , Kincardine and Western

I will not speak about what is not in the Bill but about sheriffs-substitute. It is on the point of sheriffs-substitute who were mentioned in Clause 4 that I wish to say a few words. On Second Reading, I spoke about the origin and evolution of the office of sheriff-principal and sheriff-substitute. I do not propose to cover that ground again because it is well understood by all Members of the Committee and there is no dispute about it. I would remind the Committee that this term sheriff-substitute referred to in Clause 4 is a survival of the days following the '45 and the Heritable Jurisdictions Act, 1746, when the sheriff-depute could be represented by a substitute, who had no jurisdiction other than as the representative of the sheriff-depute, from whom alone he derived his authority. Thus it was that Mr. Erskine, as sheriff-substitute to the sheriff-depute of Selkirkshire, wrote many of the judgments for his superior, though the judgments were actually those of Sir Walter Scott who as sheriff-depute was a judge of first instance.

Up to 1838 the tenure of office of a sheriff-substitute depended upon the pleasure of the sheriff-depute by whom he was appointed and lapsed with his death. Forty years later, by the Sheriff Court Act, 1877, the right to appoint substitutes was transferred to the Crown. Since that date, the sheriff-substitute has been a resident judge ordinary appointed by the Crown. He is entirely independent and is a substitute to no one, and I submit that it is an anachronism and an anomaly that he should be called a sheriff-substitute.

The point that I am making is that the term "substitute," used in the Bill, is anomalous and an anachronism. I think that the "salaried sheriff-substitute," as he is officially known, ought to be called just "sheriff." The term "sheriff" should be applied to the holder of the office of resident judge of the first instance, instead of the term "sheriff-substitute." There are about half a hundred sheriffs-substitute and twelve sheriffs-principal. If that change could be made at a later stage it would give great satisfaction to the sheriffs-substitute and would cause no offence to the sheriffs-principal, because their office would be continued, and would be known as sheriff-principal exactly as it is at the present time. There would be no alteration in that regard.

It may of course be said, "What's in a name? What matters is not the name, but the reality, and that so long as the salaried sheriff-substitute does his job properly the title by which he is known is of secondary importance." That is true. But it is also true that every sheriff-substitute could give many instances of the misleading effect of the continued use of the name, "sheriff-substitute." The sheriff court judges have long been unanimous and emphatic in their advocacy of this change. The Lord Advocate, when this matter was raised in Second Reading, referred to a "long drawn-out controversy" rather as if this had been a matter of controversy in Scotland for a long time. I think that he must have been referring to the point which I tried to make then about the double sheriff-ship. That, I agree, has divided members of the legal profession in Scotland for many years. I am not now referring to that at all, but to this narrow point of nomenclature of the sheriff-substitute.

Let us face the fact that the term "substitute" has about it an air of inferiority. It is not the real thing. It is for that reason that I urge the Secretary of State and the Lord Advocate to right this wrong, to correct this anomaly, to prevent inevitable and avoidable misconceptions and to meet the desire of a body of the King's lieges who have been referred to in the Debate this afternoon by the hon. and gallant Member for West Edinburgh (Lieut.-Commander Hutchison) as very much respected members of the community. I trust that the Government will meet the desire that I have expressed in this matter.

5.4 p.m.

Photo of Commander Thomas Galbraith Commander Thomas Galbraith , Glasgow Pollok

There is a good deal of substance in what my hon. Friend the Member for West Aberdeen (Mr. Thornton-Kemsley) has said. It may be that at this stage of the Bill we are not in a position to discuss it to any great extent. But may I put it to the Secretary of State that he might consider this matter, in the light of the observations made by my hon. Friend, for reference to another place where the alterations could easily be made? If they were made it would at least bring satisfaction to those who occupy the position of sheriff-substitute today, and it would also give satisfaction to the people of Scotland.

5.5 p.m.

Photo of Mr William Gallacher Mr William Gallacher , Fife Western

I do not propose to oppose the Third Reading, although I think it is unfortunate, in view of the shortage of manpower, that we should be contemplating introducing or increasing the number of judges in Scotland. But I am very pleased to know that the Secretary of State has a certain measure of control in deciding whether it is necessary to have them there or not. I think it would be very desirable if we could achieve conditions in Scotland that would allow us to decrease instead of increasing the number of judges. Judges are not a desirable feature of our social life—

Photo of Mr Francis Bowles Mr Francis Bowles , Nuneaton

This Bill is designed to give the Secretary of State for Scotland power to increase and not to reduce the number of judges.

Photo of Mr William Gallacher Mr William Gallacher , Fife Western

He has power to increase the number of judges, and I am expressing the hope that he may never have to use that power, because, as I have said, they are not what might be called a desirable feature of our social life. But everybody would agree—

Photo of Mr Hector Hughes Mr Hector Hughes , Aberdeen North

On a point of Order. Is it in Order for the hon. Member to say that judges are not a desirable feature of our public life? Is not that attacking the administration of justice?

Photo of Mr William Gallacher Mr William Gallacher , Fife Western

I think that everyone will agree with me that we should have a very happy situation in Scotland if we could do without justices altogether.

Photo of Mr William Gallacher Mr William Gallacher , Fife Western

The hon. and learned Member for North Aberdeen (Mr. Hector Hughes) does not agree. He has been in court many times, as have the right hon. Member for Dumbarton Burghs (Mr. Kirkwood) and myself. But he has been handing it out while we have been at the receiving end, and that makes all the difference. We have an entirely different attitude towards judges from what he has. One of the Ministers was talking in the tea room today about judges. He told a story of a fellow who was in the dock and was asked by the judge whether he was guilty or not guilty. He said, "Not guilty." The judge said, "You must be guilty or you would not be in the dock." That is very often the attitude.

I want the Secretary of State for Scotland and the Lord Advocate, and the other Members of the Government, to see if it is possible to bring about social conditions in Scotland, make things better for the people, take away the temptation from the young by bringing about at the earliest possible moment abundance for all young people—

Photo of Mr Francis Bowles Mr Francis Bowles , Nuneaton

That is very wide of the subject. This is purely and simply a machinery Bill, and the hon. Member cannot hang upon it a speech on social conditions.

Photo of Mr William Gallacher Mr William Gallacher , Fife Western

I am very concerned about this point. I feel, as I am sure do hon. Members on the other side of the House—well, I will not say the other side—but every hon. Member on this side feels that if a good job is done, and social conditions are made of such a character as will give the people the ordinary and decent amenities of life, the Secretary of State, instead of having to increase the judgeships—and thereby impose a drain on our restricted manpower—would be in the happy position of being able to reduce them. I think that is a consummation that all of us, with the exception of the hon. and learned Member for North Aberdeen, would greatly welcome.

5.8 p.m.

Photo of Colonel Sir Alan Gomme-Duncan Colonel Sir Alan Gomme-Duncan , Perth

I must say one word, after what the hon. Member for West Fife (Mr. Gallacher) has told us. I suppose we have all been before the justices for one thing or another, if only for not having a licence for a dog, or something similar. But I think it is quite wrong to suggest that in the minds of those in judgment in Scotland today is the idea that, "You are in the dock, and therefore you must be guilty." That is not quite fair.

Photo of Mr William Gallacher Mr William Gallacher , Fife Western

I did not say that. I said that a Minister—not an ordinary individual like the right hon. Member for Dumbarton Burghs or myself but a Minister—told that story today. That is what he said—although I am inclined to agree with him.

Photo of Colonel Sir Alan Gomme-Duncan Colonel Sir Alan Gomme-Duncan , Perth

Naturally, Mr. Deputy-Speaker, you would not allow us to discuss the secrets of the Tea Room, and I shall not pursue that matter further.

One of the reasons for requiring this increased number of judges in Scotland is the alarming increase in the number of divorce cases. If the proposals of an organisation, which has sent to me and other Members a circular today, are carried out we shall want an even greater number of judges. There is no doubt that this Bill is very necessary to meet the present situation, but I do not think we should go beyond its provisions. I believe the Lord Advocate said that as a judge eventually dies, another will not be put in his place, unless it is absolutely necessary. That will gradually reduce the number.

5.11 p.m.

Photo of Mr Emrys Hughes Mr Emrys Hughes , South Ayrshire

This Bill gives power to the Secretary of State to increase the number of judges by two, and it has been made necessary, to some degree, by the increase in the number of divorces. In considering these appointments, and the work which has to be undertaken, I should like the Minister to consider whether a woman should not be appointed to one of these judgeships. I raised this question on the Criminal Justice Bill, in Committee, when I was told that there was nothing to prevent a woman being made a judge. Although this might be an innovation, Scotland ought to take the opportunity of making such an innovation. I hope the right hon. Gentleman will not exclude the possibility of a woman judge being appointed, for the first time in the history of these islands, especially in view of the matters which affect women so vitally.

5.12 p.m.

Mr. McKie:

I do not wish to follow the remarks of the hon. Member for South Ayrshire (Mr. E. Hughes), because I am one of those least qualified to pontificate on questions of divorce. I hope, however, that what he said will be duly noted by the Scottish Office. Whether we in Scotland should create a number of Portias is a much wider aspect of the question, into which I do not enter now. I am sorry that I must disagree with my hon. Friend the Member for West Aberdeen (Mr. Thornton-Kemsley) and my hon. and gallant Friend the Member for Pollok (Commander Galbraith) in what they said about the words "sheriff-substitute," in Clause 4. Both my hon. Friends expressed dissatisfaction that the Bill leaves us with those words still in use, but I am very glad that they are to be retained, and I hope that in another place the Secretary of State will not introduce an Amendment to delete the word "substitute" after the word "sheriff."

What I said in Committee will no doubt be still in the minds of Members of the House. They will know where I stand, and the great attachment I have for the office of sheriff-substitute in Scotland. I dislike change merely for the sake of change. We in Scotland have always cherished the words "sheriff-substitute," and until a more reasoned argument has been made out against these words than has been made out so far, I hope the Minister will stand by Clause 4 as drafted. I also hope that we shall give this Bill an unopposed Third Reading.

5.15 p.m.

Photo of Mr John Wheatley Mr John Wheatley , Edinburgh East

This Bill has been welcomed from all corners of the House. The principal part of it is contained in Clause 1, which gives the Government power to increase the number of judges in Court of Session. On Second Reading, I explained the justification for taking these powers, but I would point out to the hon. and gallant Member for Perth (Colonel Gomme-Duncan) that it is not an increase in the number of divorce cases as such, that has necessitated this step. If he examines the statistics he will see that there has been a great increase in the all-round work of the Court of Session. The increase in the divorce work has been quite serious, but it has not been sufficient to interfere unduly with the other work of the Court, in view of the times at which divorce cases, which are mostly undefended, are taken.

I want to take advantage of this opportunity to correct some figures I gave about divorce cases, lest there should be any misapprehension. I gave the figure, I think, of an average of 75 before the war as against 800 this year. What I was referring to—and a reading of the context makes it easier to understand—was the number of cases in the calling list in April or August—an average of 75 prewar and about 800 this year. That, of course, is no index of the actual number of cases going through the courts. To get the record straight I have the figures here: in 1937 there were 647 divorces; in 1938 there were 824; and in 1947 there were 2,561.

Photo of Mr Eustace Willis Mr Eustace Willis , Edinburgh North

These figures do not, I take it, alter the point my right hon. and learned Friend made on Second Reading, that the peak has been reached?

Photo of Mr John Wheatley Mr John Wheatley , Edinburgh East

That is so. I think we have passed the peak.

The hon. Member for West Aberdeen (Mr. Thornton-Kemsley) raised the question of the nomenclature of the sheriff-substitute. I find it very difficult to put my case without going outside the rules of Order. The whole question of nomenclature is inevitably linked up with the question of sheriff-principal and sheriff-substitute, which I cannot develop at this stage. The name "sheriff-substitute" has become to be honoured and revered throughout the length and breadth of Scotland. There is no question of any stigma being attached to the designation "sheriff-substitute." He is known as the sheriff, particularly in the rural areas; he is never known as the sheriff-substitute.

It was said that "sheriff-substitute" was an anachronism and an anomaly. The Scottish law is full of such things, but they do not constitute a fundamental deficiency. The Lord Justice Clerk, the second senior judge, is not a clerk, but he is called the Lord Justice Clerk. The Lord Ordinary is known as the Lord Ordinary, but he is not an ordinary Lord. If I may go over the Border, for the sake of analogy, even though it might offend the hon. and gallant Member for Perth, I would draw the attention of the House to the fact that a prominent legal luminary in England is known as the Master of the Rolls. What his association with Rolls may be is not on record, but I would point out that there was a Government in power in 1937 which gave him control of them. In these circumstances we really cannot introduce into the Bill this controversy, which is inter-linked with the greater dispute that has ranged for some time.

Photo of Mr Colin Thornton-Kemsley Mr Colin Thornton-Kemsley , Kincardine and Western

I was not proposing any change in the title "Sheriff-principal," which might well remain, but has not the Lord Advocate received a memorial from the Sheriffs-Substitute Association recommending, not once but many times, that the term "substitute" should be abolished? All the sheriff court judges are against it and there has been no controversy about it.

Photo of Mr John Wheatley Mr John Wheatley , Edinburgh East

I have received the memorial. I receive frequent representations. I do not want it to be thought that I am indicating an opinion one way or the other in this matter. The Bill is not the proper vehicle for carrying into effect whatever decision is arrived at. If I treat the matter in this way, it does not indicate that I am necessarily opposed to any change. I will consider that matter when it arises on the greater question.

The rest of the criticisms really tall by the wayside. I would only point out to the hon. Member for West Fife (Mr. Gallacher), who indicated that he would like to see a decrease in the number of judges—I think we all would, from the point of view of a lessening of crime—that we must remember that our judges are required not only for criminal but for civil cases. The same judges perform both functions. The Scots are notoriously a litigious race. I do not know whether, in the interests of my union, I could give approval to the expression of hope by the hon. Member for West Fife. I am glad that the Bill is welcome.

5.23 p.m.

Photo of Mr Charles Williams Mr Charles Williams , Torquay

I rise for one or two good and simple reasons. I have no wish to follow the Lord Advocate's example in the way in which he has poached upon English law. I do not in the least mind a Scots lawyer poaching upon English law or an English lawyer poaching on Scots law. There is a very eminent lawyer here who could deal fully with the position, if he wished to. But I have risen to congratulate the Lord Advocate upon his apology for giving an inaccurate statement. It is quite right that he should do so and I am glad to have had the opportunity of listening to him. We so often have inaccurate statements in this House from the other side that the only thing that interests me is when we happen to have an accurate one.

My principal object in rising is to comment upon the way in which the Lord Advocate, at the beginning of the Debate on the Bill, with a complete lack of civility which brought a blush to the cheek of the Secretary of State for Scotland—who is a polite and decent body if ever there was one—tried immediately, upon a pure technicality, to rule out of Order, apparently for no reason whatever, what had been said by my hon. Friend the Member for West Aberdeen (Mr. Thornton-Kemsley). I stopped to listen in order to see whether there was any reason the Lord Advocate could possibly give for thinking that my hon. Friend was wrong.

I congratulate the Lord Advocate on his speech. He made a speech which completely and utterly convinced me of his wisdom. He wished to stop this Debate because he knew he was incapable of answering my hon. Friend. I congratulate my hon. Friend also upon having put the Lord Advocate into such a false position. I must say that during the time I listened to the Lord Advocate dealing with the position of Scots judges I was singularly disappointed to find that there was any lawyer in Scotland so completely incapable of doing the job, at which the hon. and learned Member thinks he is so good, but no one else does.