§ Order for Second Reading read.
§ The ATTORNEY-GENERAL (Sir Patrick Hastings)
I beg to move, "That the Bill be now read a Second time."
This Bill is in practically identical form with the Bill which has already passed through all its stages in another place, and received a Second Heading in this House on 27th July last year. Upon that occasion there was a substantial Debate upon the question of the detention or the alteration of the detention of jury under the existing system. I propose to say a few words about Clause 1, which deals with the power to dispense with the holding of the Assizes in places where they are considered to be unnecessary, and Clause 2 which deals with the question of juries. I think the other Clauses in the Bill will meet with a little criticism, but if any points are raised I should imagine the House will think it desirable that they should be discussed in Committee.
It is desirable that I should say a few words in explanation of the first Clause. It has been the practice from time immemorial that there should be Assizes held all over the country, over which the King's Judges preside in the various towns of the counties. On many occasions at a circuit town the Judge and his retinue have arrived and there has been no work whatsoever for the Judge to do. The practice is known to hon. Members of presenting to the Judge a pair of white gloves, indicating that there are no persons there to be tried. This causes a great amount of unnecessary expense and it has been recommended that it might be possible to abolish altogether Assizes at certain places. That was thought, however, to be too drastic and this Clause gives to the Lord Chief Justice from time to time power to say that no Assizes shall be held in a particular town if there be no work there, or if the work appears to him to be so small as not to be worth the expense. Some hon. Members seem to think that 1926 that would give the right to some ill-disposed to prevent a person from having his case tried at the Assizes, but that is based upon a mis-reading of the Clause, because the only persons who could achieve that would be those who could show that there would be no prosecutions and no trials at this particular assize town. If there is any question arising on this point I think it is one which might very well be discussed in Committee upstairs.
The substantial point relates to the question of juries. This is a question which affects not only lawyers but other persons as well, and I just want to remind those who are not members of my profession what the position is with regard to juries. In the year 1873 the question of the rights of litigants to juries was regulated by Rules and Orders of the Supreme Court. Those Rules and Orders were well known to practitioners, and they gave a very great protection to litigants of all sorts in litigation in the High Courts of Justice. When the War came, there were many severe restrictions placed upon the right of trial by jury by Acts passed in 1918 and 1920. In my view, and in the view of many practitioners, the system under the Act of 1920 was eminently unsatisfactory.
The object of this Bill, which is in this respect in the same form as it was introduced by my predecessor last year, is to restore the position of litigants with regard to jury to practically the same as it has been since 1873. I do not think that this Bill as drafted puts the litigant in as good a position as he was in in 1873. I noticed, in looking up the account of the Second Reading of a similar Bill, that the then Attorney-General, when faced with that proposition, said that if anybody was able to satisfy the Committee upstairs that the condition of affairs under his Bill was not an improvement on what the position then was under the Act of 1920, he would submit it to a free vote of the Committee upstairs as to whether paragraph (d) should be allowed to stand.
That was obviously unsatisfactory to a large number of hon. Members, and the right hon. Gentleman the Member for Spenn Valley (Sir J. Simon) asked specifically whether the Attorney-General could see his way to undertake that in Committee the question of restoring the 1927 right of trial by jury as it was before the War should be determined without putting on the Government Whips. The then Attorney-General said he could not give that pledge, but I am prepared and anxious to give it myself, because I am anxious that the full right of trial by jury in the fullest form should be given under this Bill to every litigant in the High Court. The only reason why paragraph (d) of Clause 2 was not actually taken out of the Bill is, that I would like to leave it for discussion in Committee Upstairs, so as to allow practically every Member of the House who belongs to the legal profession to bring forward cases of hardship to litigants which have happened in their experience, where it can be shown that the Judge has not been able to get rid of the jury when it has been sworn through some action which is taking up the time of the Court.
Under those conditions the jury are naturally anxious to be discharged. I have a case in mind where, owing to the absence of one of the parties to the litigation, the Judge held that he had no power to discharge the jury, and they were detained for a considerable time and great expense was involved. It occurred to me that there might be some changes which hon. Members who are members of the legal profession may want to suggest with a view of putting in some additional safeguards to those which are at present contained in the Act of 1873. Therefore I am prepared either to accept Amendments, or to leave to the absolutely free vote of the Committee any suggestion which may appear to the Committee to be desirable in preference to paragraph (d), or I should be willing to allow it to be decided by a vote of the House.
What I desire to impress upon the House is that there really is no necessity to urge in any form the abolition of paragraph (d). It is the intention of paragraph (d) to put back the litigant into as good a position as he was in before. I suggest that in Committee hon. Members should give their experience on this point, and if it is found necessary I should not have the slightest objection to paragraph (d) being taken out. I can assure hon. Members that they will have no cause to complain if they leave these matters to be discussed during the Committee stage.
§ Sir KINGSLEY WOOD
I beg to move to leave out from the word "That" to the end of the Question, and to add instead thereof the wordsthis House declines to give a Second Reading to a Bill which fails to restore the right of trial by jury as it was before the War.I am in a difficulty after the extraordinary speech which has just been made by the Attorney-General. He stated just now that he feared some criticism might be made that the Government had not stated their intentions in regard to this Bill, and that he might be blamed for not doing so. That is certainly my position. The Attorney-General brought forward the County Courts Bill, which might impose further charges upon people who desired to bring workmen's compensation cases into Court. He said that he did not mean to do that, and when the Measure came before the Committee he would be prepared to make a considerable alteration. There seems to be a sort of detachment of the Attorney-General from the Bills he introduces. What does he really mean and what are the Government going to do with reference to this particular matter? I regard it, as the right hon. Gentleman the Member for Spen Valley (Sir J. Simon) does, as a matter of principle, and not as a matter to be decided upon in Committee.
I want to-day, if I can, to get from the Attorney-General something plain and straightforward with reference to this matter. He is very vague about what the Government are really going to do. On the one hand he says he is in favour of giving the fullest right of trial by jury to every litigant, and then, on the other hand, he implies that he has some exception in his mind for dealing with some extraordinary case in which, apparently, he was interested, and in which, because one of the parties was absent, they could not dispense with a jury. It was something like the illustration given to us by the late Attorney-General on the Second Reading of this Bill in the last House, when he mentioned some extraordinary case, in which also he was engaged, having to do with some matter affecting the Spanish law, and he gave that case as an illustration why this Clause should be preserved, because, apparently, the jury were to come to a decision as to what 1929 was the Spanish law on the subject. The more I contemplate these exceptional cases that are brought forward to bolster up this Clause, the less confident I feel in accepting such statements.
I propose to press this Amendment in order that we may have a definite statement, apart from exceptions and all the rest of it. It is very dangerous to bring in any question of exception in this matter, and we should have it definitely accepted by the Government that the people of this country are to have the same rights of trial by jury as they had before the War. The Attorney-General passed over very lightly indeed the criticisms that have been made by the Court of Appeal on the extraordinary position in which litigants in this country are at the present moment, and one of the reasons why we should give proper attention to the Second Reading of this Bill is that undoubtedly the position in which we find ourselves to-day is largely due to the lack of time and the scamping methods adopted when the original Act was passed. On that occasion the Bill was, I think, reached at 3 o'clock in the morning, the Attorney-General of that day spoke for about five minutes, it was never stated to the House that they were really fundamentally interfering with the rights as to trial by jury, and this House passed that Bill without really having the matter properly explained to it. In the result, according to the judgment of the Court of Appeal, this House, quite unknown to itself, had fundamentally destroyed the right of trial by jury which had been enjoyed in this country for many hundreds of years.
Particular criticism was passed on that occasion by the Lords Justices because in certain cases the question ae to whether a man should have the right of trial by jury was left to the decision of the High Court Judge. In the Act of 1920 power was given that, if the Judge thought the case could not be as conveniently tried with a jury as without, he could come to a certain decision. What is the Attorney-General proposing to the House to do—because we really must take his own proposal? He is only suggesting the reversal of this, perhaps in rather better words, but, as I venture to say, in words just as inconvenient and just as open to criticism. He is suggesting that the Judge should address himself to another question, that 1930 is to say, whether the case is one in regard to which the Judge is satisfied that it is more fit to be tried without a jury. I think that that is equally open to the criticism which Lord Justice Bankes made on the original wording. Lord Justice Bankes said that it was most objectionable to leave this matter to what is practically the uncontrolled discretion of a Judge upon a question upon which individual opinion may so widely differ, and to leave it without any indication of the matters which should be taken into consideration in arriving at a decision.
I venture to say again that the form of words which the Attorney-General now proposes is open to the same grave objection which was advanced by the Court of Appeal, and we find ourselves in the extraordinary position that it is suggested, by the Bill introduced by the Attorney-General, that in, for instance, a breach of promise case, a plaintiff or defendant can have a jury as of right, while if a man gets run down in a street accident he does not have a jury as of right, and has to go, if necessity arises—I do not suppose that it would happen very often—to a Judge to decide whether his case shall be tried by a jury or not. Again, there might be a slander action in which a plaintiff or defendant could have a jury as of right, while if, say, a dentist were sued for professional negligence, the plaintiff or defendant would have to go to a Judge in the last resort to decide whether there should be a jury or not. I cannot understand how an Attorney-General in a Labour Government could bring forward such a proposal, depriving the litigants of this country of the right of trial by jury, and it is an extraordinary thing to me, especially after what the Labour party said when this matter came last before the House.
On that occasion the present Chancellor of the Duchy of Lancaster got up and said that the Labour party were wholeheartedly with the opposition brought forward to this Bill, and many hon. Members will recollect that on that occasion a number of us, irrespective of any personal or party political views, strongly opposed this proposal, as we are doing to-day. The present Chancellor of the Duchy of Lancaster said that the Labour party were certainly with us in that, and yet to-day we find the Attorney-General bringing in the same Clause and 1931 making the same attempt to deprive the subjects of this country of trial by jury. On that occasion also the present President of the Board of Trade rose from his seat and said that this proposal might strike a blow, which might be a very serious one, at the right of a litigant to trial by jury, and I believe that all the Labour Members present, including the Financial Secretary to the Treasury, the Home Secretary, and the present Chief Whip, went into the Lobby in support of the contention that we are making to-day. Yet we find the Attorney-General, apparently with very little consideration at all, introducing this Bill in exactly the same form, and, in addition, making some most indefinite proposals to the House as to what shall be done in Committee.
I want the House on this occasion definitely to take the stand which I suggested it should take on the last occasion, and assert that the litigants of this country should have the same right to trial by jury as they had before the War. I do not want the Attorney-General, when we get into Committee, to say, "Oh, well, I raised the point about the case I was in, and how we could not get rid of the jury on that occasion, and, therefore, I must put in & Clause to safeguard an exception of that kind." We have got on very well in this country under the old system, in spite of these extraordinary cases in which, apparently, various legal Members have been engaged. We have got on very well, indeed, without any exceptions at all. Generally, by the common sense of the parties and by arrangement with counsel, these difficulties have been got rid of, and, therefore, I hope we are not going to have any attempt made, at the suggestion of the Attorney-General, to weaken the present position. I want a definite assurance from him, before these proceedings close, that we shall have exactly the same right to trial by jury in this country as we had before the War. I think it is very necessary, in view of the attitude which the Attorney-General has adopted, that he should be perfectly explicit, without any qualifications of the kind he has indicated.
I should like, if I may, also to refer to the other matter to which the Attorney-General has referred, namely, the Clause which gives power to dispense with the 1932 holding of Assizes in places where they are unnecessary. It is perfectly true, as the Attorney-General has said, that there is a great waste of judicial time, and, no doubt, considerable waste of money, in Judges having to go down to various towns where there is no business; and we do read, as he says, of a pair of white gloves being given to the presiding Judge as an indication of the good order of the community in that particular part of the country. But there is something more to be said than that for the Judges going to Assizes. It is a good thing to emphasise occasionally the importance of a proper and efficient manner of carrying out judicial work in local administration, and I particularly want the Attorney-General, if he will, to explain still further what is meant by saying that in the event of there beingno substantial amount of business to be transacted at the Assizes,the Lord Chief Justice, with the concurrence of the Lord Chancellor, can direct that Assizes shall not on the occasion of that circuit be held at that place. Does it mean, for instance, that, if there is an important criminal case in that particular locality, but only one, then the Assizes need not be held? In any event I would suggest that it would give a certain amount of confidence in local administration if in this matter, and in one or two others arising out of this Bill, there were an Advisory Committee which would act in conjunction with the Lord Chancellor and the Lord Chief Justice in that connection.
There are just two minor points to which I want to refer, which have been put forward by various law societies up and down the country. I think we shall be able to deal with them more effectively in Committee, but they do raise a very curious position which still exists now in this country, namely, that the procedure is different in the Principal Probate Registry, and under lunacy administration and matters of that kind. A good many law societies have put forward the view that, when we come to consider this Bill, at any rate in Committee, there is no reason why the practice of the Courts should not be made the same all through, and that, instead of the complicated differences which arise in various Courts, the practice should at any rate be made the same. There is a further point of 1933 that kind which I want to put to the Attorney-General, namely, the contention that the Principal Probate Registry should now, under this Bill, be put under the same regime as any other branch of the High Court. It is very difficult to understand why that has not been done, and it is suggested that, under Clause 12 of the Bill which deals with the rules of the Supreme Court, the same Committee should have power to make the rules regulating lunacy, divorce, and contentious probate matters. That, perhaps, is a matter which could more properly be discussed in Committee, but I hope the Attorney-General, when he comes to reply, will say that he is open to consider these points, because I think a great deal of useful work could be done in that connection, and probably a good deal of money saved to litigants.
Our main contention, however, as appears from this Amendment, is that on the occasion of the Second Reading of this Bill we must take an important principle of this kind without any qualification or equivocation, and we want the Attorney-General definitely to assert that he himself in Committee will introduce a Clause which will restore the right of trial by jury as it was before the War. It would have been much more convenient had the Attorney-General, when he introduced this Bill, put the Clause into the Bill, so that we- should have had an opportunity of criticising it and saying what should be done. I remember very well during the course of the last Debate, one of the contentions put forward by those who did not want to restore the right of trial by jury as it was before the War was that it was impossible to draft such a Clause. I never held that view, but it certainly would have been much better if the Attorney-General had done that. I hope we shall, as the result of this Amendment, get a straightforward statement from the Attorney-General upon a matter which not only affects lawyers but the whole community, and which, I believe, is a very necessary part of the administration of justice upon which this country has been built up.
§ Mr. HARNEY
I beg to second the Amendment.
I find myself rather paralysed having regard to the speech of the Attorney-General, because in one sense he has conceded all that the Mover and 1934 myself desire, but I feel that we are entitled to something very much more definite than we have had from him. After all, it is scarcely a satisfactory thing that the Attorney-General should father this Bill the same as the one introduced in the last Parliament, and then say, "I differ from it to the extent of this Amendment, but I will concede that difference in Committee." We want him to concede it now. We want to be quite sure that the pre-War conditions as regards trial by jury will be restored, and in order that there may be no mistake as to the way this Bill differs from the pre-War conditions I think it necessary to make a few observations. In the first place, although the Attorney-General quite openly tells us it does not restore pre-War conditions, I find the Lord Chancellor in introducing the Bill said:This Bill proposes and does restore the right of the British subject to be tried by jury as he possessed it before the War.When two lawyers of the eminence of the Lord Chancellor and the Attorney-General differ it is as well that the House should know the position. For many hundreds of years, a litigant was bound to have his case tried by a jury.
§ The ATTORNEY-GENERAL
I am sure the hon. Member would not wish to mislead the House, and it is only fair that I should read what the Lord Chancellor said:This Bill proposes to restore the right of the British subject to be tried by a jury as he possessed it before the War, and the only alteration is that almost of necessity a power is given to the Judge to say that the case is one which is of a nature quite unfitted to allow trial by a jury.To say that I disagree with the Noble Lord is quite inaccurate. I agree entirely.
§ Mr. HARNEY
I speak in the hearing of some lawyers, and, therefore, I think it advisable to point this out. The Lord Chancellor starts off by saying that the object of the Bill was to restore the right to trial by jury as we possessed it before the War. He goes on to say:The only alteration is that almost of necessity a power is given to the Judge to say that the case is one which is of a nature quite unfitted to allow trial by jury; just such a case, for example, as one depending on intricate accounts being taken.That was the law before the War. The Lord Chancellor therefore says, "The object of the Bill is to restore the pre-War 1935 condition with an alteration that makes it, when you look at it, precisely the same as the pre-War condition." The first invasion made upon the general right to trial by jury was by the Common Law Procedure Act of 50 years ago, and all that did was to stereotype the practice which had grown up of excluding from trial by jury questions of account in Chancery actions, Admiralty actions, and actions involving prolonged examination of documents, which the convenience of parties had long made it a practice not to have tried by jury. But all common law actions were to be tried by jury. Then you had the Judicature Act passed 20 years afterwards. The only difference that made was that it provided for a Rules Committee, which had to do with all questions of procedure, including such matters as the mode of trial, and these were statutory rules to be laid on the Table of the House. But though there have been three, four or five sets of these rules made, in none of them was any attempt made really to curtail the right of trial by jury further than it had been by the Common Law Procedure Act. These rules made one curious distinction. They said that actions involving personal character, actions of defamation, false imprisonment, malicious prosecution, seduction and breach of promise were, as matters of course, put into the jury list. All other Common Law actions could be put into the jury list upon application. The only difference was that in the one class of action you got a jury without the asking, and in the other class you got a jury for the asking, so there was really no distinction. That was absolutely the law before the Juries Act of 1918. Every Common Law litigant was entitled as a right to have his case tried by a jury. The shortage brought about by the war in 1918 induced Parliament to make what it regarded as a very drastic change, and a change which ought not to endure, because it took care to express in the Act of Parliament itself what its intention was:This Act shall have effect during the continuance- of the present War and for a period of six months afterwards.The War came to an end, and the period of six months came to an end, and the ordinary course would have been to allow this emergency Measure to lapse and 1936 automatically bring back pre-War conditions. Instead of that there was introduced into the House of Lords a Bill called the Administration of Justice Bill, which purported affirmatively to do what would have been better done, as it happens, negatively. They dealt with this question of juries and the Lord Chancellor when introducing it said, "It is merely a formal matter, and it restores pre-War conditions." There was a column and a half or two columns given to the Debate in the OFFICIAL REPORT, and I think only a few inches to his question of juries. It came to this House, and there was no Debate at all here. It was introduced at an early hour of the morning and passed through. It was thought then by the lay public that juries had been restored, but they found out their mistake in the practice of the Courts, and ultimately the whole matter came up for consideration at the trial of an action in 1922. I had better read the Judge's exact words. Lord Justice Bankes said:What was once an undoubted right, and in the opinion of many persons a most valuable right, has been eaten into until at last, by the recently issued provisional rules proposed to be made permanent, it has been entirely taken away. It is in the hope that on further consideration of the matter the right may be restored and the necessary limitations of the right clearly defined that I am calling attention to this.He put it more plainly later on:The Juries Act of 1918 and the rules consequent thereon were a purely temporary war Measure and need not be referred to. The Administration of Justice Act, 1920, contains a provision as to trial by jury which came into operation on the date when the Juries Act of 1918 expired, namely, on 1st March of the present year. Trial by jury is now abolished.It was on account of that case that the Administration of Justice Act was introduced. We want to know, now that it is clearly conceded that this Bill does not restore the pre-War conditions, whether they are to be restored. If not, we want to know why not. The Attorney-General tells us that he is in favour of the view-that I am putting forward, that it should be restored, but he has not told us that he will undertake to restore it if we agree to pass the Bill. I press this Motion, and I think we ought to persist in it unless we get an undertaking that here and now the pre-War right to trial by jury will be restored.
§ 8.0. P.M.
§ Sir THOMAS INSKIP
This subject is one which naturally interests lawyers, but 1937 it probably also ought to interest the subject who is not a lawyer, and it is a remarkable testimony to the confidence which the public place in lawyers that they should, generally speaking, leave lawyers in the House to settle the manner ire which their litigation shall be decided in the Courts. There are a few lawyers present, and no doubt we shall have the advantage of bearing their opinion. The Bill really contains only one controversial Clause, although opinions may differ on some other small points. It is a Clause upon which I have had an opportunity of expressing my opinion in a former Parliament, and although I have a position now of greater freedom, I retain that opinion. I think that it is not very different from that of the Lord Chancellor in the words with which he commended the Bill in another place. I agree with the Attorney-General that the hon. and learned Gentleman opposite (Mr. Harney) did not quite give the sense of the advice which the Lord Chancellor gave, but at the same time I think the Lord Chancellor commended the Bill as it is drawn and as it is presented to the House to-day, whereas, as I understand the learned Attorney-General, he rather favours the course which my hon. Friend the Member for West Woolwich (Sir Kingsley Wood) and my hon. and learned Friend the Member for Smith Shields (Mr. Harney) would favour, namely, the amendment of Clause 2, so as to effect what is generally described as restoring the right of trial by jury as it existed before the War. It is desirable that we should all understand a little more what this Bill really does, and the circumstances in which it is presented to the House. I am not sure it was correct to say, as my hon. and learned Friend who last spoke said, that it was introduced in consequence of the observations of Lord Justice Bankes. I think the matter had been under consideration before Lord Justice Bankes made those observations. Everything that Lord Justice Bankes said is entitled to, and would receive, the respect of this House, and from me personally he is entitled to almost filial respect, as he is one to whom I owe so much; but it was under consideration before that judgment was given. The position is this: that in 1918, owing entirely to the exigencies of the War, the right to trial by jury, except in 1938 a few particular cases, was practically abolished. In 1920 the right to trial by jury was extended, but certainly to nothing like the same extent as it existed before the War. In 1923 this Bill was introduced in the same form as it is today, and it is now re-introduced. It will have the effect, as the Lord Chancellor has said, with a slight alteration, of practically restoring the pre-War right.
My opinion is, with all respect to the learned Attorney-General to whom I should naturally defer, that the Lord Chancellor was right in the advice which he gave, and it would be well if the Government adhered to the Bill in its present form. For this reason: Everybody who is acquainted with the Courts knows that cases do arise which have been ordered to be tried by a jury in which, as the parties and tribunal discover, it is almost impossible that the jury shall give it proper consideration. It is not only the cases that arise on the investigation of intricate accounts, but cases possibly in which plans are involved, such a case as might arise if there were a question of trespass in a mine, where the working plans of a colliery would have to be handed backwards and forwards from counsel to jury, and jury to Judge, and back again; or questions in which documents of one sort or another had to be perused, and the precise effect of the documents retained in the memory of the jury, who naturally would find it more difficult to follow the documents than would the learned Judge who had been provided with them. Cases of that sort before the War might be ordered to be tried by a jury, by a Master upon the application of one of the parties to the litigation, and it often turned out that such cases as that proved to be entirely unsuitable for trial by jury. Is injustice done to any litigant, if it is decided at the beginning, as it often is decided at the end, that trial shall be by the jury alone? I venture to think that is the only amendment, and it is an improvement on the old practice which this Bill makes so far as trial by jury is concerned. The learned Attorney-General suggested that my right hon. Friend the Member for Marylebone (Sir D. Hogg), the late Attorney-General, gave a pledge that the matter should be left to a free vote of the House as to whether paragraph (d) should be included in the Bill or not.
§ Sir T. INSKIP
I do not think it is. I do not think that is quite what the late learned Attorney-General did. The late Attorney-General was defending the Bill as it was drawn, and saying it was an extension of the 1920 Act. Hon. Members in all parts of the House criticised the Bill. He thereupon said that if the Committee, on a free vote, objected to this provision in the Bill, he would agree to it going out. But, as some hon. Members have failed to perceive—it was very well-known, of course, to the late Attorney-General, and he explained it to the House very clearly, as he would—the effects of excluding the paragraph would be to leave the matter controlled by the 1920 Act, and, therefore, would have a contrary effect to that which most hon. Members desired. He declined to give the pledge as the Attorney-General has now explained, and to say that he would leave it to the free vote of the House to say whether the precise pre-War practice would be restored. I hope I have correctly represented the late Attorney-General as to what he did and did not promise to the House.
The only question of substance is whether it is not desirable to give the Judge the power which paragraph (d) of Clause 2 of the Bill gives. Hon. Members will notice that the first three paragraphs of this Clause deal with purely non-controversial points. They say that in cases assigned to the Chancery Division there should be no jury unless a Judge otherwise decides, and everybody, both lawyer and layman, will appreciate that causes assigned to the Chancery Division are not fit to be tried by a jury in 99 cases out of 100. The next provision is that the Court may order a trial without a jury of any cause which immediately before the commencement of the Supreme Court of Judicature Act, 1873, could without the consent of the parties have been tried without a jury. Such cases as occur in Admiralty Division, with assessors, and cases which involve examination of accounts and so on. We all agree about that. The next provision is that in certain cases, with which we are all familiar, which interest the public, and with which the public are most familiar, cases of libel, slander, false imprisonment, seduction, and matters of that sort, there 1940 should be a right to trial by jury, and on the application of either of the parties to the litigation. We all agree about that. Next comes paragraph (d), which the Attorney-General says he will be quite prepared to have excised from the Bill in Committee, if the Committee is of that opinion. That Clause provides, that in any case not covered by the three paragraphs to which I have referred, where an order has been made that it should be tried with a jury, the Judge may order, notwithstanding the previous order, that it should be tried without a jury if he thinks it be more fit that it should be tried without a jury.
The House will notice, what is familiar to every practitioner in Chambers, that the expression "a Court or Judge" is used in one part of the Clause and in another the expression used is "the Judge." "The Court or Judge" means—and I am sure hon. Members who are not lawyers will forgive this somewhat technical dissertation—means a Master. "The Judge" means what it says, the Judge. Therefore, it is only an order that may be made by a Judge, so that this paragraph (d) provides that, notwithstanding an order having been made—perhaps on incomplete information at an early stage of the case—that it is a case to be tried by a jury, the Judge may, if he thinks it is more fit to be tried without a jury, order it so to be tried. The advantage of that is that parties who may prepare a case to be tried without a jury and may come to trial, will only have the expense of one trial, subject, of course, to appeal. Whereas, if the case is ordered to be tried and continues to be tried before a jury, and the jury and everybody say the jury is unfit to try the case, the jury may then be dispensed with, with the result that sometimes the matter is forced to a reference by another tribunal altogether, and the costs of the parties are increased, and no advantage is secured. This Bill makes this very small Amendment which I have tried, I hope successfully, to explain to the House, and which I hope the House will think is an improvement of the law as it stood before the War. It is really the only alteration which detracts in any way at all from the right of litigants to trial to a trial by jury.
The learned Attorney-General has suggested that it would be quite easy in Committee to leave out paragraph (d). 1941 I suggest to him that that would not do at all. You cannot leave out paragraph (d), because then no provision will be made at all for any of the cases which are not covered by paragraphs (a), (b) and (c), and I am sure it is only the learned Attorney-General's desire to be brief and clear, that led him perhaps into a mere inadvertence for the moment. What is perhaps intended is that, in Committee, hon. Members shall move Amendments which will alter paragraph (d) substantially, and give the same unrestricted right to trial by jury, to use the learned Attorney-General's words, which every litigant shall be entitled to have. I think it would be found very difficult indeed to put any such provision as that into this Bill. What you will have to do is to leave the matter to be dealt with as it was dealt with before 1918, namely, by the Rules Committee, which is composed of many learned Judges and other persons appointed by the Lord Chancellor. Therefore this House will not be able to deal with the matter in this Bill. This is probably a convenient time for the question of principle to be decided, and I should have thought a more convenient time to decide it than possibly in Committee, where there might not be an attendance of such experts as my right hon. Friend the Member for Spen Valley (Sir J. Simon) who spoke on this question in 1923, and many hon. Members whom I see around me.
My own opinion is what I have expressed to-day. It is the opinion I held in 1923, and is an entirely unprejudiced one. I arrived at it as the result of greater observation and inquiry than I had previously been able to give to the matter. I am probably the only Member in this House who was present in the House on the occasion at about half-past one in the morning, in 1920, when the present Lord Chief Justice introduced the Bill which did cut down the right to trial by jury, and I am entitled to say that I expressed then in a sentence or two a grave doubt as to whether it was right to restrict trial by jury. I still adhere to that opinion. I hope that the learned Attorney-General will feel, on consideration, that the Lord Chancellor's opinion is probably the right one. The Bill went through unamended in another place in this respect, and with all deference to the Member for West Woolwich and the hon. and learned Member 1942 for South Shields, I think if they would look a little more closely at Clause 2, they would appreciate the difficulties of doing what they propose in this Bill, and the advantages of giving a Judge the overriding right which paragraph (d) of Clause 2 does give to the learned Judge.
§ Sir J. SIMON
I am not very fond of lawyers' debates, and particularly dislike Parliamentary discussion on extremely technical matters, but as my hon. and learned Friend opposite has just said, the question that is raised here is really one that concerns the rights of citizens. It is not very easy to debate it without the use of technicalities, but the question, undoubtedly, is one of very general importance. One or two things will be admitted. I think it is generally admitted that the very severe restrictions which were put, temporarily, owing to the conditions of the War, upon the right of a jury in an ordinary Common Law action, were restrictions which, though at the moment inevitable, nobody would desire permanently to preserve. I think it is also agreed that there are cases which will come, to be tried in the ordinary Common Law Courts which, owing to their complexity, owing to the fact that there are great masses of documents to be examined, and that they involve a prolonged examination of accounts, and for reasons of that sort, it would not be fair or sensible to ask 12 citizens in a jury box to try. Anyone who has had experience of Courts of Law, or who has had the melancholy experience of sitting in a jury box, will know that the jury are not provided, and cannot, perhaps, be provided, with every document in the case, and it would be quite impracticable and most unreasonable to expect 12 citizens, however devoted and careful, to follow a case of such complexity.
Therefore, it seems to me that the question comes down to be simply this—what is the restriction, if any, which must be put upon the prima facie right which I hold everybody ought to have in a common law case to have his case tried by a jury? I do not agree with the description that appears to have been given to this Bill in another place, if indeed it was said, that it restores the whole right as it existed before the War, with the qualification about cases of great elaboration and complexity. The truth is that causes a great elaboration 1943 and complexity on the ground of voluminous documents involved, or on the ground that it would involve a close examination of accounts were, before the War, excluded by a rule. In cases like that juries were not asked to undertake the business of trying them before the War, and they will not be asked to do so now. We do not want to alter the pre-War practice, if that is what the Government are proposing to do in this respect. These cases were covered by a rule.
§ Sir J. SIMON
Perhaps I have not put the matter quite correctly, but, in substance, before the War I think the practice was this, that if a case was a case involving a prolonged examination of accounts the case was not tried by a jury. I thought there was a rule to that effect. The real question, and it is a very practical question, is this—ought we to provide now, when we are going back to pre-War practice, this modification, that a Judge should be entitled to examine the pleading in a case, and to say, "It seems to me that, really, this is a case," which may be about negligence or nuisance or trespass, "which could more fitly be tried by a Judge like myself or another Judge rather than by a Judge and jury." If the Judge says that, he has very likely good reasons for saying it, but, none the less, one of the litigants may have a very strong opinion that he would like to have a jury, and the real question for the House of Commons to decide is this, should the Judge, who is an experienced and a most honest gentleman, and who, no doubt, has formed his opinion with great care, be allowed to say, "This is a case which could be more fitly tried by a Judge without a jury," or should the litigant, if he wants a jury, get one?
There is the view, and it is a view which I am inclined to support, that people who have recourse to our Courts in these Common Law actions have, unless there are strong reasons to the contrary, the right to have their cases tried with the help of a jury, even though the Judge thinks that he could do it better himself. That is no reflection on the Judges at all. All of us, who know 1944 anything about the Courts, have the greatest possible respect for the Judges, but I am inclined to think this is one of the rights of the subject which we should be very slow to take away from a British citizen. He may say, "I may be right or I may be wrong, but on these matters of fact I would prefer that my case should be tried by my fellow citizens, by people from the same county or town in which I live, subject, of course, to the direction of the Judge in matters of law. Whether they decide for me or against me, at any rate, they are people of my own sort, and they will decide it without its being simply a judicial conclution." I believe that, on the whole, gives more satisfaction to the parties. It is no good grumbling if the jury is against you. What is more, it is no good appealing, or very seldom is it much good appealing. A decision by a jury in these cases produces quite as much satisfaction to the ordinary litigant as the most judicial conclusion of the most admirable Judge. Therefore, my own view would be, for what it is worth, that we should be very slow to take away from ordinary litigants the right, which they undoubtedly enjoyed before the War, merely on the ground that the Judge has formed the opinion that the case is one which is more fit to be tried without a jury.
The question is not really in cases of this sort which is the more fit way of trial. The question is, rather, whether the circumstances of the case are such that it is not reasonable to call upon twelve citizens, who have other things to do, to devote themselves to the extremely arduous business of deciding these matters1 of fact. All of us who are familiar with these cases have the greatest possible respect for the devotion and the impartiality of the British Judge, and yet, at the same time, I make bold to say that it is the experience of those who practise in the Courts that, sometimes, the Judge seems to take at an earlier stage in the case a more decided view and, as it seems to some of us, perhaps according to the side we are on, a more perverse view than twelve silent men or women sitting in a jury box. I know that the Judge tries to keep an open mind and is willing to listen to the arguments on both sides, but there are a great many people who become involved in litigation who strongly hold that they would sooner have the right to submit questions of fact 1945 to fellow citizens like themselves than that they should feel that they are bound to accept the views on disputed matters of fact of even the most distinguished and learned Judge.
It is very material to note that the view that I have been venturing to put to the House is a view which is entertained by some of the most distinguished Judges now serving on the Bench. I notice that Lord Justice Bankes, whose name has been referred to in this Debate, used the following language about the functions of a jury:I trust that the other aspect of the case may also be considered, namely, whether the right to a trial by jury is not sufficiently important to be restored and maintained, subject always to exceptions which should be precisely indicated. 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 safeguard against many forms of wrong and oppression. They are essentially 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 damage is at large and has to be assessed. There seems no particular reason why a party in a breach of promise action should be entitled to a jury, and the party who has a dispute with a neighbour, which involves his character as a truthful or an honest person, should be liable to be told that the Judge does not consider it desirable that his case should be tried with a jury, or that it is not convenient that it should be tried at the Assizes of the county in which he is known.I think that statement from a very distinguished member of the Judiciary is1 extremely important. He has had long experience in trying matters of fact and in trying matters of law, and not only is he impartial—that is common to the whole of the British Bench—but the obvious care with which he forms every conclusion he expresses makes1 his opinion one to which the House must pay great regard. That being so, I think that the practical question will turn out to be whether the wordsunless in the opinion of the Court or a Judge the cause is more fit to be tried without a jurygo far enough to protect the claims of the litigant who wants a jury. I confess that I do not think that they do. I do not think that a litigant who want a jury ought to be told, "The Judge thinks that this case can be more fittingly tried without a jury, and that is the end of it." Therefore, I hope that when this Bill 1946 reaches the Committee stage the Attorney-General, in fulfilment of the promise which he has been good enough to make, will consider an alternative form of words which is more favourable to the ordinary litigant.
I agree that there is a serious practical objection to giving the unrestricted right to a jury in cases which may involve very great complications. That is true. Most practising lawyers know of such cases within their own experience. On the other hand, I think that a Judge who exercises the influence which a really wise Judge does exercise in his Court, and the good feeling and the good sense of the professional people engaged in it do usually get rid of a jury in cases of that sort, and I should prefer the test to be, not so much a test as to whether the Judge thinks that the case is more fit to be tried without a jury, as a test as to whether this is a case which, in the opinion of the Judge, cannot be satisfactorily tried by a jury at all. If that is the view that must be taken, that would be, no doubt, a reason why an exception should be made.
I doubt very much whether paragraph (d) of Clause 2 of this Bill really does go very far in restoring something which is not now provided as compared with the language of the Act of 1920. The Act of 1920 allows the Court or a Judge to direct a trial without a jury if they consider that the action cannot be as conveniently tried with a jury as without a jury. I do not know what is the difference between convenience and fitness, but I can imagine a great deal of hairsplitting as to the extent of the difference between the two phrases. I believe that the view of a very large number of lawyers of the non-technical sort as well as of a very large branch of the public to be that the test ought to be of a different kind than the view which is bona fide formed by a Judge, however wise and intelligent as to which is the more fit mode of trial. One Judge may think that Mr. Justice So-and-so is a more fit Judge to try this case than Mr. Justice Somebody-else. That is not the sort of test that is required. We are dealing here with one of the important rights of British citizens, and it is a right which we ought not to take away because an impartial Judge thinks that the matter can be dealt with otherwise. The citizen ought to be left to enjoy the right which 1947 is one of his traditional, inherent and most valuable rights, except in cases where practical convenience makes it impracticable so to do.
Those of us who know the way in which juries devote themselves to trying to decide these questions of fact can never sufficiently express our admiration of their devotion to their duties. It is certainly a source of constant surprise to me. One has heard of Judges sometimes being tempted to break into levity and irrelevancy because the case is boring and lengthy, but, speaking; broadly, it is true that when you get 12 British citizens working in a jury box to try a question of fact they set to work to discharge their duty in a way that is a credit to the whole community. They are practically unpaid for their work, or they are very miserably paid. They have no means of choosing what the case, is or of determining its length. They are under orders of the Court as to when they are to come and go. One of them may be more quick-witted than his neighbours and be bored to extinction, while the same matter is being explained to his colleagues over and over again, and yet, on the whole, both the good temper of the jurors and the efficiency of the jury system are one of the greatest proofs of the validity of our claim that this country is the home of practical justice, and I am unwilling that we should totally give up what I believe to be a most important part of the British judicial system, before we have a final opportunity of considering all the aspects of the question in the. Committee stage.
§ Sir ELLIS HUME-WILLIAMS
I very much admire the hesitation with which lawyers in this House have risen to address us on the subject of the administration of justice. I express a similar hesitation in following in their footsteps, but I am going to suggest to the House, quite apart from the merits or demerits of this question, that what we are chiefly concerned with at this moment is the extraordinary procedure which has been followed by the Attorney-General in introducing this Bill in the manner in which he has done. During all the time in which I have been in the House of Commons, I never remember a representative of the Government, when introducing a Bill, saying, "Clause so-and-so is a matter of 1948 principle. It has been settled in the House of Lords, I do not agree with it and I shall be glad to see it taken out, and I give you a pledge that if this Bill goes to a Committee and this Clause is taken out I will not object." I never knew such a weird procedure as that. Practically the Bill has no paragraph (d) of Clause 2. The Attorney-General says that he does not like it, and that when the Bill goes to a Committee he will be glad if somebody would insert something else. It would be a very much better idea if, in future, when introducing a Bill, we had simply a blank Bill with, outside it, the Title "Administration of Justice," leaving all the Clauses to be filled in on Committee as hon. Members like. That would very much shorten discussions in this House. That seems to me to be an admirable idea, but this is the first time in my experience that any attempt has been made to put it into practical application.
The question is not only one of chaffing the Attorney-General, but it has its importance for this reason. The object of a Second Reading Debate is to discuss the question of principle in a Bill, and we are told that this is a question of principle. I would like very much to know what is the principle that is going to be followed, because I stand, I daresay, practically alone among the members of the legal profession in this House in not wanting to see any extension of the jury system at all. I, on the contrary, would rather see an extension of the power given to people who go to law to have their cases tried without a jury. I have no doubt that the jury devote the utmost care and attention to the cases that are brought before them, but they are sometimes very human, and the verdicts at which they arrive some times do an infinity of harm. I have a case in mind, if I may give an example which has just occurred to me, of a doctor, a man in a very large practice in the Midlands, who brought an action of divorce—
§ Sir E. HUME-WILLIAMS
You have not heard the story yet. The point was that this doctor tried to divorce his wife. The case was tried before a jury. It lasted five days and he failed. As, perhaps, 1949 the House knows, the law is that the husband has to provide the wife with the cost of bringing an action against himself. Having failed once, she brought a fresh action, founded upon allegations made subsequent to the last trial. On this occasion the jury, for some reason, went absolutely wrong, and without any foundation at all found a verdict in her favour. The husband went to the Court of Appeal. The case lasted five days, and the Court of Appeal set the verdict aside and sent the case down for a new trial. That would be the third trial, plus the hearing of the Court of Appeal. What is the result? The unfortunate husband has had to provide his own costs and the costs of his wife. He has not a penny left in the world and is an absolutely ruined man. His practice is gone. He not only cannot defend himself, but he cannot provide his wife with the funds which she desires to bring about a new trial. The parties are practically where they were, except that the husband is ruined, and ruined entirely by a perfectly erroneous verdict of the jury. I do not say that such cases are a common occurrence, but they do happen sometimes.
I would like to put a provision in the Bill, that when juries disagree the case should be retried at once by the Judge without a jury. Think what the expense is if the jury fail to agree. The parties themselves, or the witnesses in the case, very often brought up from the country, have to go back. Then they return to London, and all the expense has to be incurred once more. I hope that when this Bill gets into Committee someone will be able to draft a clause providing that if the jury system is to be dealt with, in cases where the jury fail to agree the parties shall at any rate have a fresh trial, and at once, without incurring all the expense of sending their witnesses back to the country and bringing them back to London again. As to paragraph (d) of Clause (2), I do not wonder that the Attorney-General is not particularly enamoured of it. The first thing that is to happen under this paragraph is that you will have to make application for a case to be tried by jury and that first application is made to what we call a Master. Suppose that he makes an order, that after careful investigation he says, "I think this case ought to be tried by a jury." It is open to the parties to agree. 1950 From that order they can appeal to a Judge in Chambers. Again the matter is gone into at great length. The Judge upholds the Master, and says, "I think this is a case which ought to be tried by a jury." As this Clause stands, when the case comes on for trial it is open to the Judge, without the consent of the parties, to say "It is quite true that this case has been recommended for trial by a jury, but I do not think it should be tried by a jury. Therefore I shall discharge the jury and it will be tried without a jury." That is practically giving the Judge at the trial a right of appeal, which has already been exercised, and allowing him to reverse the decision at which another High Court Judge has arrived.
At least let the person who goes to trial be certain how his case is to be tried. If it is to be tried by a jury let him have his jury. If a jury is refused, let him go to the Judge and he can establish his right or fail. But when the trial comes on let him know for certain what is to happen. This is a blank in the Bill which might very well be filled when the Bill is in Committee. Whoever intends to draft a now paragraph (d) might bear these facts in mind. Clause 1 provides for the arrangement of circuits.
Sub-section (1) says:If at any time it appears to the Lord Chief Justice of England that there is no business or no substantial amount of business to be transacted at the Assizes then about to be held at any place on a circuit and that having regard to all the circumstances of the case it is desirable that an Order should be made under this Section, he may, with the concurrence of the Lord Chancellor, by Order direct that Assizes shall not on the occasion of that circuit be held at that place, and where any such Order is made then, notwithstanding any enactment or custom to the contrary, Assizes shall not on that occasion be held at the place specified in the Order.What is to happen to the unsubstantial amount of business? Is it to be sent to some other Judge for trial, or is it to be brought to London, or is it to stand over until the next Assizes? No doubt that is provided for in the Bill, but it is not plain and the matter is very important. If an hon. Member had a case coming on at the Assizes and was prepared for the trial, but was told at the last moment that it was unsubstantial, he would want to know what was to happen to his case. It may be unsubstantial from the point of view of the public. No doubt the learned Attorney-General will be able to 1951 give us some information on the point when he replies. I object altogether to the course which has been taken in regard to this Bill. We are entitled to all information on Second Reading on all questions of principle, and the idea that anyone can come here and say, "Here is a Clause. I do not like it, and you can alter it as you like in Committee," is wrong altogether, and is robbing this House of one of its most important privileges, namely, the discussion here, before the Committee stage, of all the vital questions of public right.
§ Mr. MADEN
I do not wish to say anything more about trial by jury, except that I think the case against paragraph (d) of Clause (2) was put very conclusively by my right hon. Friend the Member for Spen Valley (Sir J. Simon), when he said that the real test should be whether the litigant wanted a jury, not necessarily whether trial by jury was best, but whether the litigant wanted such trial. We have had the jury system so long now that trial by jury has come to be regarded as a right, and if any change were made without the full consent of the people affected it would be a retrograde step. I want to say a few words about Clause 1. We are told that Assizes will be given up if there is no business or no substantial business. What is a substantial amount of business? The Lord Chief Justice is to decide. How is he to decide? Is he to have one case or two cases or three cases at the Assize towns? Are the Lord Chief Justice and the Lord Chancellor to deal with questions arising all over the country as to whether a case is going to be tried, let us say at Carlisle, or is it to be tried somewhere else.
I suppose it will be arranged that a case not taken at a particular Assize town as a result of this provision will be tried somewhere on the same circuit or at the nearest assize town on the next circuit, but, however small a case may be, I cannot see why it should be left over for four or five months to the next Assizes, when, it may be, there is some person in prison awaiting trial. A great hardship might be involved in delaying the trial of one or two cases, held not to be "a substantial amount of business." Speaking of the Northern Circuit, with which I am familiar, assuming that a case is transferred from Westmorland to Carlisle, 1952 what is to be the composition of the jury? Is it to be a Cumberland jury or a Westmorland jury or some of both. There is another old right, quite as ancient as the right to trial by jury, and that is the right to trial in a man's own county where the crime is alleged to have been committed. Are we suddenly to lose that right and to have it left in someone else's hands as to whether a case should be tried in the county where it arises or in some other county? Then, again, if Westmorland jurors are sent to Cumberland consider the inconvenience involved to them. I suppose the idea of moving these Assizes is one of convenience, but it is very little trouble for the Judge to get to Appleby and stop there a day on his way to Carlisle. The only person who suffers is the high sheriff of the county. The grand juries do not want these changes, and there have been protest resolutions at the mere suggestion. It will make very little difference to the Government or to the local authorities, but it will make a great deal of difference to the people engaged in the cases, who may have to go from one county to another and, probably, spend a night or two nights away from home. It may mean two days' absence from work instead of one. It is bad enough to have to travel from one end of the county to another, but to compel people to travel into the next county seems to me a backward step. We have just sent divorce cases to certain Assize towns to make it easier for them to have their cases tried. That was a progressive step. The present proposal seems to be going in exactly the opposite direction, and instead of making it easier and cheaper for litigants to have their cases tried, it is being made more difficult and more expensive. After all, the Courts exist for the benefit of the litigants and not the litigants for the benefit of the Courts. That is the principle we should consider in these matters, and that is my chief reason for opposing Clause 1 of the Bill as it stands, and hoping that it may be removed or amended in Committee
§ Mr. CASSELS
May I, as another "hesitating lawyer," take a small part in this Debate, and make some observations by way of expressing my astonishment that the Attorney-General should have made such a speech as he did in introducing this Measure? The Government 1953 seem to adopt at this present moment the extraordinary attitude of taking up children, grumbling about their shape and expecting them to be altered when they put them in the creche upstairs. I do not take that view. If the Labour Government proposed to introduce a Bill which would be acceptable to this House, they would at least have redrafted it and have introduced into it some Clause dealing properly with this very controversial and important matter of trial by jury. In the Clauses of the Bill as drafted, we find certain specified actions in which the litigant has a right to trial by jury—actions for libel, slander, malicious prosecution, false imprisonment, and those other wonderful actions which always excite admiration in Courts of Law particularly among the public, namely, actions for seduction and breach of promise. It is an extraordinary thing that there should have been left out such important actions as actions of fraud, actions of negligence and many other classes of actions which are equally important, to the litigants concerned, and which certainly could be well tried by a jury. I find it difficult to understand why in the case where the milkman has not carried out his promise to the servant girl they should have a jury of 12 men and women to sit to listen to the evidence in a case and finally to decide it, and yet in an action for negligence against a doctor, shall we say, there is no right to a trial by a jury.
It seems to me one of the things which might have been done by the Attorney-General in this matter would have been to consider carefully some Clause which would have re-established in this country the right to a trial by a jury. Let me state the position. Up to the time of the passing of the Common Law Procedure Act, 1854, all common law actions were in fact tried by jury. That Act introduced for the first time the possibility of trial by a Judge alone in common law actions. That Act was the result of a very careful consideration of our common law procedure by Commissioners who sat for a long time thinking out the best ways of trying various sorts of actions. The Commissioners hesitated about recommending that trial by jury should be superseded except in cases merely of account unless the parties preferred that their cause should be tried by a Judge alone. Then came the Judicature Act, 1954 1873, which by Section 57 gave the right of referring matters requiring prolonged examination of documents. May I here say it is a curious thing that there should be a fear on the part of some who think that a jury would be unable to consider an involved question of account or a case involving a large number of documents. They think that a jury in a Civil Court is quite unable to give a decision in a case which has these features, whilst there are cases in the Criminal Courts which involve documents just as numerous and accounts just as complicated. Yet no one would think for a moment of suggesting that in a criminal cause which possessed these features we should have the case tried by a Judge alone. It would not, I admit, be right or proper to do so because there is a different issue involved, namely, that of guilt or innocence. Though there may be a large number of documents in a case, I cannot see why a Judge should say, "There are 500 letters in this case therefore I think it should be tried by me alone." He never says that when it is a breach of promise case. He prefers there to let the jury consider the matter.
Certain rules of court were passed in 1883 which gave any party to an action the right to a trial by a jury upon making application and, later, a time limit was imposed as to when the application should be made. It is in consequence of the various tinkerings, legislative and otherwise, which we have had with this matter and in consequence of course of the War, that we are in this present position, and that there arises the difficulty which litigants have in certain classes of cases of getting their cases tried by a jury. In the Act of 1920 the word "convenient" was used. It is now proposed to substitute for that word "convenient" the word "fit." Over the word "convenient" there has arisen an extraordinary dispute as to whether the position was that the litigant, in making an application, had his right to a jury because it was convenient to have it tried by a jury, or whether it was left to the discretion of the Court or Judge, meaning thereby the Master, as to whether or not the jury should be ordered. You have this result, that in these specified actions juries are granted as a right, but in other actions, of negligence particularly, it was the view of the Court that the convenience really was the con- 1955 venience of the Court, and they came to the conclusion that it was the more convenient to try an action of negligence without a jury than with one. The result is that there was certainly a great grievance, because large numbers of cases, of negligence particularly, could not be tried with a jury.
This Bill deals not only with the High Court, but also with the County Court, and in the County Court one does know that certain Judges take certain views with regard to juries. The position in the later Clauses of the Bill is just the same in regard to County Courts. I daresay hon. Members have heard what his Honour Judge Parry wrote in a book, called "What the Judge Said," with regard to a particular County Court Judge. He was saying that he went to sit for a Judge who had died, and he found that all the witnesses in a particular case, when called upon, were told to go outside the Court. The Judge called up the usher and said: "I do not wish that these witnesses shall be put out of Court when a case is called upon, as it disturbs the Court, and, what is more, it disturbs the Court when they are called back again." The usher said: "The late Judge never had them back." That is the position with regard to a lot of County Court Judges, that they take certain views of these matters. I knew one County Court Judge who, when a case to be tried by a jury was in his list, always put it at the end of the list, so that the jury should be well inconvenienced and made to realise that, inasmuch as they had been brought to the Court to carry out their duties as citizens, at any rate they should know that they would not be looking after the job again; and at an early stage he made it clear to the jury whose jury they were, that is to say, which one of the litigants had actually called for a jury to try the particular case.
I venture to agree with what my right hon. Friend the Member for Spen Valley (Sir J. Simon) said about the importance of juries, and I say that this Clause, as drafted, does not provide for the citizen of this country that right to a jury which he ought to have. That that right is important I need only refer the House to what was said by Lord Justice Atkin 1956 in regard to trial by jury in this country. He said:Trial by jury is an essential part 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 cases. 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.9.0 P.M.
Surely this is a time when the Attorney-General of a Labour Government could have introduced a Clause in this particular Bill which would have re-established for the citizens of this country that right to trial by jury which has been so important in our history. I would like to refer to one other Clause, and that is the first Clause, which seems to suggest that, inasmuch as occasionally Judges of Assize going to particular towns get white gloves, therefore you should abolish certain towns as Assize towns. I am not in favour of that particular Clause. It is a good thing that the "Red Judge," as he is known in the country, should make his periodical visits to the Assize towns, and it certainly gives the impression to the citizens that there is justice being brought to their doors, that there, at any rate, is the representative of law and order, that there is the man, with all his retinue, who would be ready if necessary to try any case which was there. The fact that occasionally he may waste one judicial day surely is not so important as the fact that it demonstrates to the people in the country that law and justice can be brought right to them in their own particular counties, and it is a survival of a very great thing in our system, namely, the system of Assize. I appeal to the Attorney-General to consider what has been said upon all sides with regard to this jury question, and to see, whether he cannot give to the House a real and definite undertaking, in unmistakable and clear language, that what we want in this Bill is to go back again to trial by jury as we knew it before the War, and long before the War. If he will do that, this Bill will have the support, I think, of all the lawyers, at any rate, who have ventured to take part in the Debate.
§ Mr. LEIF JONES
It is with more than usual trepidation that I rise to address the House on this Bill, because I believe I am the first Member of the House, who is not a lawyer, to speak on this Measure. Yet I think that, as a layman and a Member of the public, I am a good deal more concerned with this question of a jury than are the lawyers. It is pretty well known that no lawyer ever has recourse to litigation if he can help it. It is we, who are members of the public, who call upon the lawyers to argue the cases on which we rashly enter, and, therefore, I submit that in this Bill, which raises the question of whether or not we shall have a jury, we laymen are much more concerned than are the lawyers. I submit to the Attorney-General that it really is for the litigant in doubtful cases to choose whether or not he will have a jury to try his case. I understood from the statement of the Attorney-General that what he intended to do was more or less to restore the right of trial by jury as it existed before 1918, and, not being a lawyer, but speaking merely as one of the ignorant public, I asked myself why the Attorney-General did not propose to repeal the offending Clause or Clauses of the Act of 1918, and thereby automatically restore the position in which we were before that Act which did all the mischief. I would ask the right hon. Gentleman to tell us specifically why it is that he has not repealed the Clauses in the Act of 1918 which have done the mischief and deprived the subject of his protection of trial by jury, and any Clauses in the Act of 1920 which might follow thereupon. That would seem to me to be the simple, and obvious, and unlawyer-like way of dealing with the matter, if the real object be to restore to the public the protection that trial by jury gives.
I rather think the real reason why that simple course is not followed, is that it is not the intention of the learned Attorney-General, nor, indeed, I think, of any of the other learned lawyers who have addressed us, really to go back to the position as it was before 1918. Will the right hon. and learned Gentleman tell the public—not the lawyers—whether he does want to get back to the position as it was before 1918? That is the real point which concerns the public. There was power then, I understand, to withdraw from the jury cases that ought not to go to a jury, but the old, old constitutional right of the 1958 people of the country to a jury existed practically to the satisfaction of the whole country. Why do they not go back to that position? It may be that they do not want to go back to that, and that the learned Attorney-General and the other learned lawyers are determined, in some way or other, to limit the right possessed before 1918. I do not say they cannot make a case for doing that in certain cases, but the learned Attorney-General, before asking the House to read this Bill a Second time, ought really to tell us precisely the extent to which he wishes to interfere with the old right of trial by jury. It is not reasonable to ask us to give a Second Reading to this Bill without knowing how far we are going in that direction. It does not meet the case to say that in Committee upstairs they will do the best they can and allow any Amendment. That does not meet my point. I want to know from the Attorney-General before I vote for the Second Reading of this Bill, how far he intends to go. He says he wishes to restore to a great extent the right of trial by jury, but to what extent does he propose to interfere with that right? I do say, as a member of the public—not as a lawyer—we value the right of trial by jury. We think—I am sure I speak for the great mass of this country—that the litigant ought to have the right of choosing in these cases whether he will have a jury or not, and the Attorney-General, before he calls upon us to give a Second Reading to this Bill, should tell us exactly to what extent he wishes to interfere with the right of trial by jury as it existed before the Act of 1918.
§ Sir MALCOLM MACNAGHTEN
I feel rather shy of joining in this Debate, not only because I am a lawyer—that, perhaps, would be a sufficient reason for shyness—but also because I have to confess that I am a whole-hearted admirer of Clause 2 of the Bill. It seems to me a most admirable Clause, and I am surprised that the Attorney-General was not prouder of it than he appeared to be. I do not pretend that Clause 2 is not capable of improvement—most of us are capable of improvement—but with a very small improvement it seems to me Clause 2 could be made almost perfect, and would entirely meet the wishes of the right hon. Member opposite. Before I try to expatiate upon the virtues of Clause 2, may 1959 I say I do hope this Bill is going to receive a Second Reading and pass successfully through the tribulations of the Committee, because it is a matter of great public importance in the administration of justice that this Bill should be passed. They are considering, in another place, a portentous Bill consolidating all the Supreme Court of Judicature Acts, and a Joint Committee has been dealing with that Consolidation Bill. It has gone through it, as far as it can go through it, until this Bill gets passed, and it is not until this Bill is passed, and has made certain Amendments in the law which are necessary, that it will be possible to get a Consolidation Bill through. But I am sure every lawyer, and I hope every layman, will agree that it is very desirable that the Supreme Court of Judicature Acts should be consolidated, so that the simple layman, when he has nothing better to do, may be able to study in one single Act the whole law on the administration of justice. Therefore, I do hope that this Bill may have a successful and speedy passage.
May I return to Clause 2? I confess I do not understand the Amendment of my hon. Friend the Member for West Woolwich (Sir K. Wood). He wants the House to reject the Bill, because it does not restore to the litigant the right which he possessed before the War of trial by jury. Really and truly before the War a litigant possessed no right to a trial by jury, no Common Law right, no Statutory right, for at that time Parliament in its wisdom had entrusted to a thing called the Rule Committee the sole absolute power of saying whether any civil case should be tried by a jury or not. I think it was my hon. and learned Friend the Member for Central Bristol (Sir T. Inskip) who spoke in terms of high praise of the Rule Committee. I do not deprecate what he said. I once had the honour, in a humble capacity, of being a member of the Rule Committee. But it is not exactly a popular tribunal. It consists of some very august persons, who meet from time to time in the Moses Room. They there issue their rules, really very much as they please. I cannot imagine a subject, who desires to have trial by jury restored to him, if he could find his way to the Moses Room, which would be very difficult, being allowed to go before the Rule Committee, and 1960 beseech the Rule Committee to give him some ancient common law right of trial by jury. There is a misunderstanding about this matter. Before the War, there was no right to trial by jury, because the absolute power of saying what should be tried by a jury, and what should not, was vested in the Rule Committee.
§ Sir M. MACNAGHTEN
From 1873 to 1918 it all depended upon the Rule Committee. In 1918 the right that then existed of a trial by jury was cut down, but now, for the first time, it is proposed to give to the subject a Statutory right of trial by jury, which no Judge, no Master, can take away, because if this Bill be passed with these Clauses in, those cases where Parliament says there is to be a trial by jury, a trial by jury must take place. I venture to think there has been some little misconception about this question of a right to trial by jury. We are dealing merely with civil cases, not with criminal cases, and in those cases, as a rule, there are two parties, a plaintiff and a defendant. If both plaintiff and defendant want to be tried by a jury there is nothing to prevent them. If they both want a jury let them have a jury. Again, ii they both do not want a jury, if they both prefer to be tried by a Judge, there is no reason why they should not be so tried, whether in an action for libel, or seduction, or anything else. The difficulty only arises where the one party wants to be tried with a jury and the other party wants to be tried without a jury. In those cases it is really impossible to do anything, and you must leave it to the Court to decide, because they cannot both have their own way. Somebody has to decide and you must leave it to the Court or the Judge to decide. Here I come to the only criticism I am going to make upon Clause 2. Sub-section (1, d) says:Any cause … shall, if any party thereto makes an application in that behalf, be tried with a jury unless in the opinion of the Court or the Judge the cause is more fit to be tried without a jury.I agree there with the criticism made by the hon. Member for Spen Valley (Sir J. Simon) that where one party wants to have a jury and the other wants the case tried without a jury, it would be much better to provide, unless the Judge is 1961 satisfied that the case cannot be fairly tried without a jury, to leave the onus on the person objecting to the jury to show that the action cannot be fairly and reasonably tried with a jury. If the Attorney-General would be willing to move that Amendment in Committee—and I rather gathered from what he said in his opening speech he would be quite prepared to do that—it would be better to do it. Then, as it seems to me, Clause 2 would be about as perfect as any Clause in an Act of Parliament can reasonably be expected to be; for it does, in fact, then secure that there shall be a trial by jury in all cases where the parties want a trial by jury, except those cases where, owing to the nature of the case, a trial by jury cannot be satisfactory.
After all, it must be remembered that the object of litigation is to arrive at justice. Some hon. Members appear to demur at that, and smile. I think I am entitled to retort that with more experience of Courts of Justice hon. Members will realise that not only is it the object of the Courts to arrive at justice, but that, in fact, in a great majority of cases they do attain justice. In some cases a jury would be the satisfactory way in which to arrive at justice, and in some cases and Courts a jury would be, in fact, a hindrance and a bar to arriving at justice. The other Clause which has been subject to comment is Clause 1, which contains power to dispense with the holding of Assizes in places where they were unnecessary—where there is no business or no substantial business. Here we get to the old controversy between the county town accustomed to have its Assizes and the position brought about by the new power and by those in favour of economy of time and economy of expense. I am in favour of economy of time and expense, but it is not really true that the expense of the Assizes falls wholly upon the town. Indeed a considerable expense falls upon the public funds, and I should have thought it was desirable in these days of greatly improved means of locomotion, and the demands upon the public Exchequer, that it might have been arranged that the business should have been taken at some neighbouring town. Of course the towns in which the Assizes have been accustomed to be held do not like it, but the Clause seems to be a moderate Clause.
§ Mr. PETHICK-LAWRENCE
As no one has, I think, risen on these benches to support the appeal made by the other benches for an enlargement of the right of trial by jury, I should just like to add my voice to those which have already been given. I know the strength of the feeling amongst hon. Members on these benches in the direction, and I feel particularly entitled to emphasise this, because the city of which I have the honour to be one of the representatives has the proud distinction of being the originator of the system of trial by jury. It was in Leicester that, when disorder was proceeding from a quarrel on some civil matter, one of the citizens suggested that 12 men should be called together to settle the matter. It was settled there with such effect that the quarrel came to an end, and from there the system spread throughout the country. Therefore, I do support very strongly the claim that the power to insist upon trial by jury should be extended, so far as it reasonably can, within the four corners of this Bill.
§ Mr. WILBERFORCE ALLEN
It is with considerable hesitation that I rise to speak. Except for one or two speeches on the opposite benches, I should be more or less in a position of a voice crying in the wilderness, for, so far as I know, all the hon. Members who have already addressed the House are members of the senior branch of the profession. As a member of the junior branch, I may, perhaps, detain the House for a few moments, because I want, if I may, to appeal to the Attorney-General to stick to the guns behind which he is standing, or, at any rate, to stick to the guns behind which I thought he was standing. I share entirely the view of the hon. Gentleman opposite who has just sat down in regard to this question. Perhaps I may be able to voice an opinion born of experience which is not always shared by the eminent and learned counsel who have spoken and who, necessarily, have formed their opinions as a result of their experience. The first observation I would make is this. The hon. Member who has just sat down reminded us that we were here dealing solely with civil actions, and I do not think there is the slightest doubt that the verdict of this House would be absolutely unanimous, if we were dealing with criminal procedure, there should be no tampering whatever with the right of 1963 trial by jury. That is a matter on which we need not spend half a minute.
I want to suggest to the House, with the utmost respect, realising the position in which I stand, that in the past this right of trial by jury in civil actions has on occasion been abused, and has sometimes been seriously abused. The hon. Member for West Woolwich (Sir K. Wood), who introduced the Amendment, was responsible for teaching me all the law I know and, probably, all the law I ever shall know, and I am sure he will not regard it as a breach of confidence if I remind him of the old tag, "No case, or poor case, have a jury." I know there are those who belittle that, and suggest it has no relation to the facts, but, speaking as a solicitor, I venture to think that, if there are other solicitors listening to me, they will not strongly dissent. I do want to suggest that in the past, with regard to a particular sort of case, this power indiscriminately to call for a jury has, in a certain number of cases, amounted to a very mild form of blackmail. There are hon. Members here, who are not so old, who have not been practising at the law for so long a time as to forget the class of case on which they were engaged when they first set out on their legal career. That point in my career is probably more recent than in the case of some other Members. We know there is a particular type of small case, particularly in the County Courts, where the solicitor advises his client that if the case is tried by Judge alone, his client cannot succeed, but if he can get the service of a jury there is the possibility that he can appeal to their sentiments and to the sympathy which is latent in the average man, and hope that whilst strict justice might deny him success there is the possibility that by summoning a jury, particularly a common jury, he may get round the soft side of the jury and obtain a verdict which he might not otherwise obtain. I think that applies obviously to the High Court as well.
I deal particularly with the County Courts, because one hon. Member stressed the point of having juries in County Courts. In the kind of action to which I am referring, a larger number are held in the County Court. I want to suggest to the House very seriously for its con- 1964 sideration that in the past there has been this tendency to abuse it. I do not want to attack, and I do not believe any Member inside or outside the legal profession would wish to attack, the right of a subject to demand a jury in all difficult circumstances, but I do want to suggest that in the past it has very often been a case of a licence on the part of this or that litigant to make himself a nuisance to his fellow creatures. I would remind the House of an element in the case which is not always present in the minds of the hon. and learned Gentlemen who have addressed us. Frequently in the course of my professional experience I have been consulted by unfortunate citizens who have been summoned to serve on a jury. Only recently I was consulted by a man in a very small way of business and who was under the necessity of closing his shop for a whole day in order that he might respond. I discovered afterwards that that man who had been compelled to close down his shop for a whole day had been spending his time dealing with what I venture to describe, without fear of contradiction, as an absolutely trifling action. It was really a tragedy, a calamity, that a man had to sacrifice so much to respond to the call laid upon him as a citizen and had to waste his time as he wasted it that day dealing with a trifling action where nobody's reputation and nobody's honour was at stake, but one of those multitudinous small cases which could, after all, in many cases, be settled if only there was a little bit of intelligence and common sense applied by the litigants.
The hon. Member for West Woolwich endeavoured to point out the absurdity of any distinction, say, between a breach of promise action and what is familiarly known as a running-down action. The distinction is obvious. In a breach of promise action there is no question. An adverse judgment one way or the other might have very serious effects on the reputation of one of the litigants, but who is going to say the reputation of the litigant is affected if he fails in an action for being run over by an omnibus in the streets of London. It is the common experience of those who practise in the Courts that time and again the Judges say, with regard to litigants under those circumstances, "I do not suggest that the plaintiff or the defendant is saying what 1965 is untrue." It is one of those many cases which arise in which two entirely honest bona fide people form different impressions. No question of honour or character is at stake. It is simply one of those many cases where there is a bona fide difference of opinion as to what did or did not happen under particular circumstances. In that type of case, and many other types of cases which come before the Courts where similar questions are involved, and no question of honour arises, it is hardly fair, however trifling the case may be, and however small the damage may be, that the plaintiff has a right to say to 12 busy men, "You must come here, whatever the sacrifice to your business, at however great inconvenience there may be; I have the right to demand That you shall come here and settle this pettifogging business. I have the right to demand that you shall come here and spend your time and decide what under existing circumstances a fair-minded Judge could settle." I remind the House, although it seems quite unnecessary to do so, that it is all very well to go back 100 or 200 years, and suggest that we should get back to the conditions appertaining to those days. But do not forget that in those days there was not that confidence in the integrity and the impartiality of His Majesty's Judges which obtains at the present time. The litigant did not then feel that he would get absolutely impartial justice at the hands of one of the Judges of those days. Although it may seem impertinent for anyone in my position to say so, I think every man knows to-day that he will get impartial justice at the hands of the Bench. That being so, arguments which might have been applicable 100 years ago have not the same force in present circumstances. On that ground I appeal to the Attorney-General to permit me to repeat what I have said in urging him to stick to his guns in this respect and not give way. I should like to think that on the lines I have indicated it plight be possible to strengthen Clause 2.
§ Mr. NESBITT
I approach this subject from the position of the gentleman described by the right hon. Gentleman the Member for Spen Valley (Sir J. Simon) as a "non-technical lawyer," but I have the advantage of speaking with the authority and the approval of the Council 1966 of the Law Society, of which I am a member. I am very glad that this question has been raised by the hon. Member for West Woolwich (Sir K. Wood), because it has enabled hon. Members, and more particularly the right hon. Gentleman the Member for Spen Valley, to address the House and to indicate the direction in which it is hoped to get assurances from the Attorney-General. This Bill contains so many matters of great importance, not only to the profession of the law, but also to our citizens, that I hope my hon. Friend will not press his Amendment to a Division if the Attorney-General decides to meet the matter in the way I have indicated. This Bill contains many matters of very great importance, but I will only deal with three, and one of them is a question with which the Bill does not deal.
I want to say a few words with regard to Clause 1 which the Attorney-General has described, and which deals with the difficulties which have arisen when Assizes are held in towns where there is no business to be conducted. I wish to refer to that Clause rather particularly because it is the result of the Report of a Committee appointed by the Lord Chancellor and presided over by Mr. Justice Rigby Swift, and of which I and the hon. and learned Member for Gillingham (Sir G. Hohler) were members. The Clause exactly describes what the Report of that Committee, which was composed largely of King's Counsel from different circuits desire should be included in the Bill. This Committee was confronted with a long list of towns at which it was said Assizes need not be held in the future, towns where perhaps there has been only one case in a year, and possibly not even that. It was felt that it would be difficult to specify those circuit towns where Assizes should not be held with any satisfactory results. Therefore Clause 1 is one with regard to which I have heard no comment.
The Clause around which most of the discussion this evening has revolved I do not propose to say anything about, and that is the proposal which deals with the restoration of the right to trial by jury. But there is another Clause in the Bill to which I wish to direct the attention of the House. The Administration of Justice Bill, so far as it goes, is good, but it does not go far enough. In a Bill of this character, which is the result of very careful 1967 consideration of all the matters dealt with in it, and the result of the Report of the Committee to which I have referred, I quite realise that it could not deal with all the matters to be amended, but I hope when this Bill gets into Committee, that the particular matter I am about to mention, which is of great public importance, will receive attention, and I am hoping to move an Amendment in Committee dealing with it, and, therefore, I think it is right to call the attention of the House to the point I want to make.
Clause 11 deals with probate registries. There are 40 probate registries in this country in which the wills of persons who die can be proved or at which grants of letters of administration can be made to the legal representatives of those who die and do not leave wills. A great many wills are proved in London, but with regard to the wills of persons not proved in London they must be proved in the particular probate registry district within the jurisdiction of which the testator of the intestate was living when he died. That, I think, is quite intelligible, because I believe in 1857 the ecclesiastical jurisdiction with regard to the proving of wills was taken as the basis for a new jurisdiction, and the probate registries were established in that way. Having regard to the ecclesiastical jurisdiction which prevailed before, I have an idea that the time has now come for reducing the number of probate registries, and this has been recommended by a Committee presided over by Mr. Justice Tomlin. It has not, however, been dealt with in this Bill, and I do not complain of that. The matter is dealt with in the same way as assize towns, and I know which towns probate registries are proposed to be removed, but that is not germane to the Report to which I have alluded.
I will take a concrete example. In the case, say, of a merchant who has carried on his business in Liverpool, whose executors are in Liverpool, whose property is in Liverpool, whoso solicitors are in Liverpool, but who, like all proper and Liverpool merchants, lives across the Mersey in Cheshire, and dies in his bed in Cheshire, where Liverpool merchants should die, why should his will not be capable of being proved in Liverpool? It has to be proved in Cheshire, because, at the time of his death, he happened to 1968 be living in Cheshire. I would ask the Attorney-General to consider, when the time conies, whether Clause 11 of the Bill, which deals with the number of Probate Registries, cannot be extended, or a new Clause added, putting an end to that territorial jurisdiction, which I submit is now out of date for the reasons I have given. In the Report of the Royal Commission, I think in 1915, dealing with the Civil Service, there was a recommendation that the territorial jurisdiction of probate registries should be brought to an end, and that a man's will should be proved in that probate registry in which it was most convenient that it should be proved. The Report, issued in July last year, of Mr. Justice Tomlin's Committee, which was a strong Committee and considered the whole matter, says:We think that the existing system should be remodelled and recognised upon the following lines, that is to say:1. At present each registry has a jurisdiction only in respect of its own district. We think that this territorial jurisdiction should be abolished, and that every registry should have jurisdiction irrespective of locality. This will necessitate some slight change of practice in order to guard against duplication of grants, but we are satisfied that there is no difficulty in this respect which cannot be overcome.The Report of the Royal Commission in 1915 recommended this, and the branch of the profession to which I belong, and which is much concerned in the proving of the wills of testators or getting grants of letters of administration, knows how needful is this reform. This matter of the territorial jurisdiction of probate registries has also been considered by a body with which many Members of this House are acquainted, called the Associated Provincial Law Societies. It consists of sixty-two separate law societies, and they have great experience, because they are situated in different parts of the country. They have unanimously agreed that this is an amendment of the law which should be introduced and included in any such Bill as the present. The Council of the Law Society takes that view also, and it is very largely at their request and at the request of the Associated Provincial Law Societies that I have drawn the attention of the House to this matter.
My last point is one which I think can be dealt with in Committee, and I only refer to it now in case it should be said 1969 that it was not mentioned here. It appears to me that the question of the qualification of persons for appointment to offices in the Supreme Court should now be defined, as it is defined in the Schedule to this Bill. The qualifications of these various persons is to be found scattered, as so often happens in these oases, piecemeal through different Acts of Parliament, or is the result of rules, or of custom and habit. Clause 3 of the Bill requires thatA person shall not be qualified for appointment to any of the offices in the Supreme Court specified in the first column of the First Schedule to this Act unless he is a person of the description specified in the second column of that Schedule in respect of that office.For example, there are the masters in the King's Bench Division, the official referees, masters in lunacy, registrars in lunacy, taxing masters, and other officers who perform important work in the Supreme Court. The qualifications of persons appointed to these offices are now clearly defined, to the great advantage, I think, of all persons belonging to the service. There are only two of these classes of officers about whom I should like to say a word, which, perhaps, might more fittingly be said in Committee. One is the master in lunacy, who performs an enormous amount of work of a similar kind to that done by the masters in Chancery. Far be it from me to enter into any discussion with regard to the administration of the lunacy laws, or even of the property of persons dealt with under those Statutes, but this work, which refers in the main to the affairs of persons who are not found lunatics by examination, but who, under that kindly Clause about age and infirmity, are not able to manage their affairs, and some member of whose family is appointed a receiver to manage them for them, very much as the affairs of infants are managed. That jurisdiction with regard to aged and infirm persons came into the law about 1890, and that particular business has been growing ever since. The bulk of it is done in the offices of the Masters in Lunacy. The qualification of the Master in Lunacy is threefold, and I think that the Royal Commission on the Civil Service recommended that he should be a practising barrister of not less than ten years' standing, or a solicitor of the same standing. I do not want to pursue that matter beyond saying that it is a great advantage, if the choice 1970 is sufficiently wide, that that should be so. There may be a word also to be said with regard to the office of Taxing Master, who performs functions with which most Members of this House are probably unacquainted, and which, therefore, being a technical matter, may be more properly discussed during the Committee stage of the Bill. With regard to the territorial jurisdiction of probate registries, I would ask the Attorney-General to take into account what I have ventured to say, and, subject to that, and to the assurance with regard to juries, so far as those for whom I have the honour to speak are concerned, I hope the Bill will receive a Second Reading.
§ 10.0 P.M.
§ Mr. FOOT
I wish to refer to the subject raised by the last speaker as to Clause 11. I hope some regard will be had to the claims of these several districts. The Act of 1857 expressly stated what the district registries should be. That was done by an Act of Parliament, and of course this House had its say in the passing of the Bill. What I object to in the present Bill is that instead of deciding what the new district registries shall be by an Act of Parliament we put it entirely in the hands of the President of the Probate Division, with the concurrence of the Lord Chancellor. I think it should be made a Schedule to some Bill passed in this House, so that the several districts concerned might be able to express their objection through their representatives in the House. A decision affecting very substantially the interests of a locality may be made by the President of the Probate Division with the concurrence, of the Lord Chancellor, and any protest of the locality may be entirely unavailing. I have read the Report of Mr. Justice Tomlin's Committee, but I think a very real convenience is served by these district registries. It means that in many cases in the locality, without the intervention of solicitors or without any local help at all, people in poorer circumstances can get help in having their wills proved. That is a convenience which is much appreciated by poor people, and if you take a district registry and move it many miles away you will put these poorer people to an expense they can ill afford to bear, and I think the total saving that is sketched in that Report, something over £8,000, will perhaps not altogether compensate for the additional 1971 expense to which sometimes these people will be put. There is strong pressure being brought to bear upon several localities. I know that several towns which were affected by the proposals of Mr. Justice Tomlin's Committee were circular-ised, and if it were not that I desire that the Attorney-General may have an opportunity of replying as soon as possible I should like to show how vigorous those protests were from the different parts of the country which were affected. I am doubtful whether there will be a very substantial saving. I think it is certain that real inconvenience will be caused sometimes to those who can least bear inconvenience, and I ask that the Attorney-General may consider Clause 11 upstairs so that any protests which a locality concerned desires to make may be made effective. With all respect to the Lord Chancellor and the President of the Probate Division, I think where in the Act of 1857 this House decided where the district registry should be and made a Schedule in the Act of Parliament, we ought not to take that power entirely away from it now and give it to two very highly placed and distinguished persons over whose decisions we shall have no control and against whose decisions the localities will not be able to make any availing protest. I hope some Amendment will be made upstairs and that the rights of these authorities, which go back not merely to 1857 but succeeded to earlier rights going back for centuries, should not be put in jeopardy.
§ The ATTORNEY-GENERAL
I should have intervened in the Debate some three hours ago were it not for two reasons. One was the considerable number of Members who obviously desired to speak, and I did not like to do anything which might tend to curtail their privileges or opportunities. The other was that both the Mover and Seconder of the Amendment, having made very eloquent and forcible speeches and then found that their duties compelled them to be elsewhere for some two hours or so, I found it impossible to make a statement on which I could ask them to withdraw their Amendment. I understand that the hon. Member for West Woolwich (Sir K. Wood) is not satisfied that my original statement was plain and straightforward 1972 as to the intention of restoring the right of trial by jury which existed prior to the Act of 1918. When the last debate came in in 1923, if I had been able to be present I should have voted in favour of the Amendment, because the late Attorney-General was unable to give the undertaking which I thought I gave and which I now repeat. I intend, as far as I can, to ensure that the right to trial by jury which existed prior to 1918 is restored by this Bill, and I propose to take every step in my power to bring that about. In those days the right was ensured by orders and rules, which of necessity had a certain amount of elasticity. This is an Act of Parliament which gives an inalienable right to the subject of trial by jury and therefore one has to be very careful to see that in restoring that right you do not do something which may do an injury by reason of the fact that you cannot alter it from time to time. That is why I think under the present system it is far better to deal with this in Committee. It is not a party question. It has nothing to do with politics.
One hon. Member said the Attorney-General took a remarkable course. I do not care whether he did or not. I think the right course is to try to put on record now a method which will be acceptable to all lawyers in the House. It is far better that it should be done upstairs where it can be discussed, and I should be only too glad to have it discussed in my own room in order that we may see whether those who ought to know, and as I gather from the Debate those who are most interested in the details of it, could arrive at something which will give satisfaction. I regret to say I cannot support the view that there should be a right to trial by a Judge alone, though I quite agree there is a good deal to be said for the statement that if you have a very bad case you had better try your luck with a jury, but notwithstanding that, I have come to the conclusion that the right to trial by jury, with all its defects, is far better than any other trial. Therefore I have made it quite plain, that as far as the Amendment of the hon. Gentleman the Member for West Woolwich is concerned, I am prepared, I think, to go as far as even he would wish. I hope, therefore, that he and the hon. Member who supported him, who I do not think has moved up, 1973 but has moved out, will see their way to withdraw the Amendment.
May I just make one general remark with regard to some of the points in speeches made by hon. Members? There have been one or two observations with regard to the circuit system. I do not remember them all, but if there is anything to be discussed on that subject, I hope hon. Members will agree that they can be dealt with upstairs. For example, one hon. Member expressed the difficulty in his mind as to what would happen supposing the Lord Chief Justice decided that no Assize should be held on a particular day. I would suggest to him that under the Act of 1876, which is expressly referred to in Sub-section (2) of Clause I of this Bill, it is laid down quite clearly that any matters (including any of the matters mentioned in paragraph (3) of Section two of the Winter Assizes Act, 1876) for which it appears to the Lord Chief Justice to be necessary or proper to make provision, may be included in an order made under the Section, with a view to giving full effect to the order.
I have received a good many communications, and I know there is a good deal of feeling about these matters. I am most anxious that this Bill shall not be regarded as a party Bill at all. The Labour party are no more concerned with this Bill than anybody else. We only desire, if we can, to do something which will advance the principles for which the Bill stands. I can only add that in Committee I shall be thoroughly prepared to discuss any matter. There is no reason why any of the suggestions which have been made should be matters for the Government Whips, and if there is to be a Division on any of them, they can, as far as I can see, all be decided by a free vote.
§ Sir K. WOOD
I apologise to the Attorney-General for not sharing the vigil of the Government Bench with him during the whole of the proceedings. I think the House can now be satisfied that we have had an explicit assurance from the Attorney-General on a matter about which we are all very anxious and concerned. In these circumstances, I do not press my Amendment.
§ Amendment, by leave, withdrawn.
§ Question, "That the Bill be now read a Second time" put, and agreed to.
§ Bill read a Second time, and committed to a Standing Committee.