ADMINISTRATION OF JUSTICE. (Hansard, 18 July 1922)

§ Mr. MACQUISTEN
I beg to move That leave be given to bring in a Bill to repeal Sections two and three of the Administration of Justice Act, 1920. By that Act the citizens were deprived of their right to have, as a matter of law, their civil rights decided by a jury of their peers, which had been one of the fundamental institutions of this country. This right had existed in England, at all events, since the earliest time: indeed, I believe that juries were in existence in Anglo-Saxon civilisation before judges. The judges were ultimately brought in to guide the juries on question of law. The system had worked admirably for hundreds of years. During the War the system of trial by jury was largely abrogated. This was purely a War measure, and all citizens expected that at the conclusion of the War the citizen's right to have his civil rights decided by judge and jury would be restored. The suspension of jury trial, however, was continued for some time under a continuation Act. Then, on 20th December, 1920, a Bill was brought in from another place, which was called the Administration of Justice Act, and by the terms of that Act the citizen was deprived of his right to have his civil rights decided by a jury of his peers. The legal profession, excepting His Majesty's judges, knew nothing about this proposal, and they have really only recently discovered it. The citizens themselves did not know of it. I remem- 1923 ber quite well how it was introduced. I saw it coming. I saw it was on the Paper, and I tendered an Amendment, and I was told the Second Reading alone was to be taken that day. Members of the House will scarcely credit that a fundamental right of citizens was cut from under their feet at 2 o'clock in the morning when there was about five Members in the House. In the course of five minutes a Bill to deprive the citizens of jury trial in civil causes was put through all its stages, with the remark, by the Attorney-General of the day, that this was a highly technical subject. I am sure you, Sir, had not a full grasp of the change which was being made in the rights of citizenship or you would have prevented all the stages of the Bill being taken at once and so great a change being made so suddenly and with so little discussion. On the following evening a protest was made by myself and others. The Statute has now had some time on trial, and the results, which I then indicated, have come about very much as I outlined them when I protested against hasty legislation. May I read from the decision of two of the most eminent judges in a recent case. Lord Justice Atkin has taken part in two cases where jury trial was refused in an ordinary civil action. In a case, which was in this week's "Law Times," he says: The importance of these cases is that they call attention to the provisions of the Administration of Justice Act, 1920, by which, for the first time in history, the British subject is permanently deprived of his right to have common law actions tried by a jury. For the future, the right to a jury is taken away; whether a jury shall try a dispute is left to the uncontrolled discretion of a master or a judge. I speak reluctantly because I cannot bring myself to believe that this far-reaching result was intended by the Legislature. Trial by jury, except in the very limited classes of cases assigned to the Chancery Court, is an essential principle of our law. It has been the bulwark of liberty, the shield of the poor from the oppression of the rich and powerful. Anyone who knows the history of our law knows that many of the liberties of the subject were originally established and are maintained by the verdicts of juries in civil eases. Many will think that at the present time the danger of attack by powerful private organisations or by encroachments of the executive is not diminishing. It is not without importance that the right now taken away is expressly established as part of the American Constitution. 1924 Similar statements were made in the same case by Lord Justice Bankes, who said: The standard of much that is valuable in the life of the community has been set by juries in civil cases. They have proved themselves in the past to be a great sale-guard against many forms of wrongs and oppression. They are essential to a good tribunal to decide cases in which there is hard swearing on either side, or a direct conflict of evidence on matters of fact, or in which the amount of the damage is not large and has to be assessed. It is a very great change that happened, and where the injury comes in is this. In almost all civil actions for damages—motor actions, railway actions and other actions of that kind—the parties are covered by insurance. It is a curious thing that defendants like Judges and plaintiffs like juries. The former blend of having a Judge and jury together made an ideal tribunal for trying matters of fact; but if you take either of them separately you ruin and destroy the Court of Justice as a means of trying matters of fact. The very result has happened which was anticipated. When a citizen is run down or injured by some carelessness on the part of a motor driver or there is some accident, the defending insurance company makes a tender of as little as it dares. The Judge knows of the tender, but the jury do not. Subconsciously and necessarily the Judge is affected by the tender, and experience of those who have had to do with juries and Judges is that the sum that a Judge will give is a comparatively small figure in all cases of civil damage as compared with what the jury, with its wider knowledge of facts of our daily lives, will give. One of the principal reasons for jury trial was that they are men skilled in the common affairs of life, which lawyers who sit on the Bench are not so skilled in. I know there is a strong body of the legal profession which has always been against jury trial, but these are more what one might call men with Chancery minds, men who are not apt in the conduct of jury cases, and they are more what you might call defendants' counsel. But for the general average of plaintiffs' cases, the universal consensus of all legal opinion in all Anglo-Saxon countries is that a jury of one's peers is the best way of assessing civil damages in questions of fact.
The Bill was introduced and run through without a moment's discussion. There was only one lawyer in the House, 1925 and he was a Chancery man, unacquainted with jury trial. When it was introduced in another place by Lord Reading he said it would only affect a very few cases. As a matter of fact, it is affecting all cases, and it is for the Commons of England to decide whether the citizens lose their jury trial and not for another place to decide it, and although it was stated that a large number of the Judges had decided in favour of this change it is not for His Majesty's Judges to decide whether the citizens are to have jury trial or not. It is for the Commons and people of England. The House of Commons was totally ignorant that this Bill was to be and had been passed and did not know that the citizens had been deprived of their jury trial, and I bring this Measure forward for the purpose of ventilating the fact that a Bill of this great import was run through in the small hours of the morning without disclosure as to its real purpose. There were other Clauses in it which were beneficial, about taking divorces on circuit and things of that kind. I ask the Government to give time to this Bill this Session so as to restore jury trial at once. If ever we should wish to abolish jury trial it ought to be properly discussed and the consent of the Commons, aye and the people too, got to so great a change in the constitutional right of citizens.

§ Lieut.-Colonel NALL
The hon. and learned Gentleman has spoken with some experience of Scotland, but he has not produced any evidence in support of the Bill as it affects England. So far as I am in touch with feeling in England, especially in commercial quarters, the present practice of sitting without a jury is regarded as facilitating the settlement of cases and as a great saving of time, helping considerably towards economy, and certainly this is the first time such allegations have been made in favour of reverting to the more costly and less expeditious system. The hon. and learned Gentleman has not produced any reat evidence relating to the present practice in the English Courts in support of his Bill by showing that the present practice is unsuitable or unfair. His argument, so far as we have had argument, is all the old argument in favour of the old system as we knew it before the present 1926 system was introduced. The present system is giving general satisfaction in the quarters concerned.

§ Mr. MACQUISTEN
No, to insurance companies only.

§ Lieut.-Colonel NALL
I ask the House not, under the 10 Minutes Rule, to give leave to bring in a Bill to repeal a Measure—whether it was taken at 12 o'clock in the morning or not is immaterial—which was brought in and passed through its proper stages as a Government Measure, and did not excite the opposition which the hon. and learned Gentleman's allegations would lead one to think, and I propose to divide the House against it.