HC Deb 30 March 1925 vol 182 cc967-92

Order for Second Reading read.

The ATTORNEY - GENERAL (Sir Douglas Hogg)

I beg to move, "That the Bill be now read a Second time."

I have been considering how best to explain the provisions of this Bill from the Second Reading point of view, because the points which are likely to arise upon it are almost all points which will probably be more conveniently dealt with in Committee than on Second Reading. There is, indeed, no one principle that runs through the whole Bill, except the general principle of trying to make the administration of justice more efficient, a little cheaper, and a little quicker. The Bill is the successor of two previous Bills, one of which I introduced in 1923, when it passed the Second Reading, after it had passed all its stages in another place, and the second of which was introduced by my predecessor, again after it had passed all stages in another place. The 1924 Bill not only obtained a Second Reading in this House, but also passed the Committee stage.

Perhaps the most convenient course would be for me to indicate the more important provisions, and to call attention to one or two respects in which this Bill differs from its predecessors. I hope that when I have done that, it may be possible to secure general assent to the Second Reading. The first two Clauses are Clauses which deal with a difficulty that has long been felt with regard to work at Assizes. Assize trials were chosen a great many years ago, when the centres of population were very different from those of to-day. Consequently, very often there is very little business to be done at Assize towns. That involves a great waste of money, and, what is perhaps more serious, a great waste of judicial time and of the time of grand jurors, petty jurors, witnesses and the like. On the other hand, if one seek to abolish altogether the holding of Assizes in any given town, there is always a natural resentment in the old cities or towns to a change which may tend to deprive them of an ancient privilege.

Accordingly on the recommendations of a Committee presided over by Mr. Justice Swift, which reported something over two years ago, provision is made in this Bill that no assize town shall be abolished, but where, with regard to any particular assize, it appears that on that particular occasion little substantial business is likely to be done, the Lord Chief Justice is to have power, for the purpose of that particular assize, to make arrangements for the business to be transacted elsewhere, with a consequent saving of time and expense. Similar provisions to this in the previous Bills were received with general approval, and I hope the same may be their fate this afternoon.

Clause a is changed considerably in form from the corresponding Clause in the two earlier Bills. It deals with the right to trial by jury. In the 1923 Bill provisions were made fixing by Statute certain rules of trial by jury, and it was hoped that these would do away with the objections to the existing and somewhat vague provisions of the Act of 1920, which had been subject to judicial criticism. On the Second Reading of the 1923 Bill it was the provisions with regard to trial by jury which were most attacked, largely from the Liberal Benches. In 1924 the same provisions were introduced, but my predecessor assured the House that he would take steps during the Committee stage to restore trial by jury to a position exactly the same as that which prevailed before the War. Accordingly, an Amendment was moved in Committee, I think by my hon. and learned Friend the Member for Londonderry (Sir M. Macnaghten) which was accepted on all sides as fulfilling that pledge, and was substituted for the original Clause. We have thought it right to accept what was obviously a general view in the last two Parliaments, and in the present Clause we have reproduced the Amendment which was accepted in Committee in 1924 and which—I think admittedly—exactly restores the position existing before the War. Clauses 4, 6, 7, 8 and 9 deal mainly with the qualifications for and the tenure of certain offices in the High Courts, and I do not think there is anything in them regarding which I need take up time on the present occasion.

I have to call attention to Clause 5, because it represents a new provision not to be found in either of the, earlier Bills. This provision deals firstly with the appointment of an additional Judge to the Probate, Divorce and Admiralty Division. The House may know that under the Judicature Act, 1873, the Probate, Divorce and Admiralty Division was constituted of two Judges, the President and one other, and that number has remained unaltered ever since, although both the other divisions have increased in numbers, and although the work of the Probate, Divorce and Admiralty Division has largely increased. At the beginning of this year a deputation came to see my right hon. and Noble Friend the Lord Chancellor, the Lord Chief Justice, the President of the Probate, Divorce and Admiralty Division and myself. That deputation, which was representative of most of the big commercial interests in the City, urged the appointment of an additional Judge to this division, on the grounds that the work was too much for the two Judges, and that in Admiralty work, above all ether, it was important for the commercial community to have a certainty of date of trial and no undue delay. The House will realise that in Admiralty matters one must largely depend on witnesses who are seafaring men, and the expense and inconvenience of keeping such men waiting a very long time for a case is a great handicap to litigants.

There is also the fact, of which I think we have the right to be proud, that the Admiralty Court enjoys an international reputation as a Court to which foreigners can safely resort, with the assurance that they will get a fair trial and absolute justice. The use of that Court in Admiralty matters, in which, of course, foreign citizens are often concerned, is considerably handicapped if the foreigner feels that, however just the decision may be, it is quite uncertain how long it will take to obtain it, and if he also feels that the expense of obtaining it may be almost prohibitive. The case which was made out—to the satisfaction, I think, of all who heard the deputation—was a case for the creation of one additional Judge in that division, so that there might be some reasonable hope of Admiralty cases being tried by a Judge familiar with Admiralty work within a reasonable time and on a fairly definite date. In Clause 5 we are taking power to appoint that Judge, and the fact that such a provision is in this Bill is one reason why I am very anxious, should the House see fit, that we should get this Bill passed into law as soon as reasonably may be.

In addition to taking that power, there is one minor alteration which we are making part of the same Clause with regard to the Judges of the King's Bench. As the House knows there are in the King's Bench Division the Lord Chief Justice and 15 puisne Judges, and in 1910 provision was made by this House for the appointment of two additional Judges whose places should not be filled upon a vacancy arising except by an Address from both Houses of Parliament. That prevents any permanent increase in the strength of the King's Bench, and retains in the hands of Parliament control over the matter to that extent. No provision was made at that time to deal with the position created if, immediately after an appointment, a fresh vacancy occurred. The last time a. Resolution was passed by this House was in December last, when I had the privilege of moving it. Supposing, unhappily, immediately after we had appointed two Judges in accordance with the wish of the House there had been created, by death or resignation, a fresh vacancy, it would have been necessary to come back to the House, and ask Members to pass all over again the Resolution to which they had just assented. We are proposing that a Resolution of this kind shall hold good for 12 months. It can hardly be supposed that large arrears of work, calling for the appointment of additional Judges, can be got rid of in a shorter time than 12 months. We are not asking the House to increase permanently the strength of the King's Bench, or to stereotype the appointment of the two extra Judges, but we are asking that where a Resolution has been passed, stating that the House is satisfied that two extra Judges are needed, that Resolution shall hold good for 12 months, so as to enable the two extra Judges to be retained at least during that period. This is a reform which, I hope, will meet with general approval.

I pass to Clauses 11, 12 and 13, which are designed to render more efficient the control of the Treasury over the accountancy department of the Supreme Court. Clauses 11 and 12 were in the earlier Bills. Clause 13 has been inserted in this Bill at the desire of the Treasury, and the object is to modernise and render more efficient the auditing of the accounts of the High Court. In Clauses 10, 14, 15, and 16 Regulations are made for the more efficient transaction of business in the Supreme Court. Provisions as to the rules of Court are brought together into one section, provision is made as to the transfer of business from one division to the other, and matters of that kind are dealt with—matters really of detail in the management of our own affairs.

Clause 17 in its present form is a new Clause. It is the outcome of a Committee which was presided over by Mr. Justice Tomlin, and it deals with and reorganises the position of district probate registries. The district probate registries in this country were set up by the Probate Act, 1857, which set up some 40, I think, in all, at what were then regarded as the important places for the transaction of business, and to each was assigned a particular district, so that people living in that district had the option either of proving their wills at the Central Probate Registry at Somerset House or in the district in which they resided. If any business was contentious, that had at once to come up to Somerset House—any points of difficulty had to be referred there—but ordinary uncontentious probate business could be dealt with, if the people concerned so desired, at the district probate registries. Centres of population have changed a good deal in 70 or 80 years, and there have been, on at least two occasions, reports made recommending that changes should take place. As a result of those reports, a Committee was set up, presided over by Mr. Justice Tomlin, which inquired into the whole position, and made certain recommendations in 1923, which were printed in the form of a Command Paper in that year, and Clause 17 is designed to give effect to those recommendations.

In its original form in the 1924 Bill, the Clause provided merely that the Lord Chancellor and the President of the Probate, Divorce and Admiralty Division should have power to change district probate registries, to abolish some, and to keep others. The Committee last year took the view that that was too wide a power to entrust to the Lord Chancellor, that it was better that Parliament itself should name the particular registries which were to be abolished or established, and that power should also be given to the Lord Chancellor and the President hereafter to make changes, provided always that these should be subject to the control of Parliament by Regulations which had to be laid on the Table of the House. Accordingly, my hon. and learned predecessor undertook, in the Committee stage last time, that he would introduce a Clause which, instead of giving that power, should name exactly what changes should take place. The Clause as it now stands is the one he had set down for the Report stage of the Bill last time, and which carried out the pledge which he then gave. The effect of the labours of Mr. Justice Tomlin's Committee is that a certain number, 11, I think, of registries are abolished, 10 others are made into sub-registries, four new registries are established at places which have grown much since 1857, places like Sheffield and the like, and the registries are grouped together.

A second recommendation, to which effect is given by Clause 18 of the Bill, is that the territorial limits of the District Probate Registries are done away with, so that anybody can prove a will at any District Probate Registry which may be convenient to themselves. That was a recommendation which we made before, and which was repeated emphatically in the 1923 Committee Report. I hope the result of this change will be two-fold: First of all, it will effect a substantial saving, because at present many of these District Probate Registries have very little to do, and a staff is kept there for seven hours out of eight doing nothing. Figures have been worked out, which I could give if necessary to the House, showing the extreme extravagance and waste of time which the present system involves. Secondly, it enables us, while making these economies, at the same time to raise the salaries of the clerks who are to be employed, and to give them the benefit of a pension scheme. One of the necessary results of the staffs being under-worked and having very little to do, and of the Registrars equally being under-worked, was that, unhappily, in many Probate Registries to-day the staffs are not getting a reasonable living wage, and there is no provision at all for any pension upon their retirement. We hope by this re-organisation to ensure that the wages shall be substantially increased, that a pension scheme shall be created which will cover all of them, and, at the same time, that an economy in the total expense will be achieved.

Some three Clauses deal with County Courts. Clause 19 is a Clause in regard to trial by jury in the County Court, which amends the somewhat unsatisfactory provisions of the 1920 Act. Clause 20 is a Clause which deals with the recovery of debts in the High Court, and questions of costs, which, however important to litigants, are not matters that I will spend time in discussing now. Clause 21 gives effect to a recommendation of another Committee, appointed by my Noble Friend, and presided over by Mr. Justice Branson, to render less expensive and more expeditious the dealing with money recovered in the High Court by infants. Then there come a number of miscellaneous Clauses with regard to the registration of deeds of arrangement, Clauses with regard to the names in which an administration bond is to be taken, which gets over a difficulty that has arisen in practice owing to the fact that an administration bond is given in the name of His Majesty, and you have to go to the Attorney-General, which is an undesirable and a clumsy method of procedure. Clause 25 is a Clause which I am going to ask the Committee to omit. It was an arrangement arrived at between the English and Scottish judicial authorities, but it appears to be based on some misapprehension, and I am not going to ask the House to give that Clause the effect of law.

Clause 27 is a new Clause which is designed to save the expense and trouble involved when formal deeds are required to be produced in various parts of the country. At present an official has to be sent down, at considerable expense, to produce the deed in person under a subpoena. Provision is here made that rules may be made under which a document may be sent to the Courts, without an official having to go down on every occasion. Clause 28 provides for the repeal of certain enactments which have become entirely obsolete owing to our change of practice, but which have not yet formally ceased to be the law of the land, and which, therefore, require repeal in order to enable the Consolidation Bill that is now being considered to take effect. Clauses 29 and 30 are the usual formal Clauses, and that completes, I think, a brief summary of a number of not very ambitious, but I hope useful provisions, which, if they are carried into effect, will, as we believe, and as I think my predecessor believed, do something to render the administration of justice in this country a little quicker, a little more efficient, and, I hope, a little cheaper too.

4.0 P.M.


In the very few observations which I have to offer, I desire to make it quite plain that I am not opposing any of the provisions of this Bill, and I think the party to which I belong is of the same opinion. Indeed, there is only one Clause in the Bill on which I want to say a word at this moment, although in Committee there may be one or two suggestions to put forward. The Clause on which I desire to offer a few comments is that referring to juries. That Clause has a very curious history. In the 1923 Bill it passed through another place in the form in which it was then drafted; and, in spite of considerable criticism coming from these benches, the right hon. and learned Gentleman (Sir D. Hogg) who has now introduced this Bill was then, I think, prepared to adhere to the view which was then generally taken. Shortly speaking, that view was that it had one advantage over the present Clause in that whatever right it gave to a jury, it gave as a statutory right. That certainly was an advantage. On the other hand, it had what in my view was a grave disadvantage. It limited the rights to a jury as they had previously existed, not by Statute, but under the practice of the Courts.

That Bill never came into law owing to the change of events, and last year it became my duty to introduce a Bill practically in terms similar to that which had been introduced in 1923. That Bill equally passed through its course in another place, and it came down here very much, if not exactly, in the same form as in 1923. In introducing it, I told the House, before any criticism had been voiced at all, that it was my intention, in Committee, myself to move to amend that Clause. The object which I hoped to achieve was twofold: in the first place, to maintain the statutory right to a jury, and, in the second place, to put the position of the litigant regarding a jury in at least as good a position as he had held under the old Rules of Court in 1918. Some criticism came from hon. Members opposite upon the way in which the Bill had been introduced, but I think I may say that from all parts of the House I received assistance with the object of achieving that dual result. It was somewhat curious that the present Solicitor-General (Sir T. Inskip), while, I think, being most anxious, and indeed most enthusiastically anxious, to assist in the passing of the 1924 Bill, urged me to adhere stoutly to the principles of that Bill and not to go back to any 1918 practice.

However, an effort was made to arrive, if possible, at that dual result. But it was not easy; in fact, it was extremely difficult. I am sure I am only stating what is known to everybody who was in the last Parliament when I say that we were not our own masters. Everything that we introduced had of necessity to pass with the approval of other Members of the House, and, in the end, I was driven to accept the Amendment which is incorporated in the present Bill, and which merely puts the position of the litigant back to that which it was in 1918. I am not speaking in any way disrespectful of my hon. Friend who introduced that Amendment, though I know he will think I am, when I say that it was a cowardly Amendment. It gave us half that which we sought to achieve. It put us back into the same position as we were in 1918, but it gave us no statutory protection at all. I am not saying that it is an easy thing to do, but I do hope that the right hon. and learned Gentleman who is now in charge of the Bill will consider whether it is not possible even now, in Committee, because he will not, I assured him, be subject to the criticism to which I was subjected from hon. Gentlemen on this side of the House as to why he introduces a Bill without being quite definite as to what he wants. He will receive every sort of assistance, not only from me, but from all of us. There was a desire all through the House last year, not only that we should go back to the condition of affairs in 1918, but, if possible, that there should be some statutory protection with regard to juries, because, as the right hon. and learned Gentleman knows quite well, there is at the moment practically none. It is open to the Rules Committee at any time so to affect the matter as to put back into the Rules of the Court precisely the same provision of which undoubtedly the whole House disapproved in 1924, when they considered this very important question.

I do not want it to be thought that I am speaking in a spirit of cavilling criticism, because I am open at once to the obvious answer, "Why did not you produce a better Clause in Committee." My answer is that it is an extremely difficult thing to do, though there are some words which might do it. There might he introduced a proviso which would prevent the Rules Committee interfering with the existing powers, and I hope my right hon. and learned Friend, if it is introduced, will not think that it is done in the least to secure any political advantage. It will be done merely as a Measure directed to the proper administration of justice. The only reason I rose was to assure my right hon. and learned Friend that., so far as I am concerned, I will support him, but I do hope that some such slight Amendment may be made. I feel confident that it will meet the views which were expressed last year, namely, (hat the right to a jury should be at least as great as in 1918, and, if possible, should be protected by some statutory provision.


I beg to move to leave out the word "now," and, at the end of the Question, to add the words "upon this day six months."

I should like to say at the outset that I have no desire at all to hold up or delay some of the provisions contained in this Bill, but there are, I believe, some objections which may be fairly taken to the Measure, and I want in a very few sentences to refer to one or two of them. It may be said that they are Committee points, but I do not think that is quite so, because there are two things which illustrate a tendency in modern legislation, and it is a tendency which should not be allowed to pass without notice and, I believe, unchallenged. The ideal of the law reformers in the past has been to make the administration of justice as easily available as possible to-all classes in the community and in all parts of the country. It may be summed up in the phrase "Bringing justice to the doors of the people." It was for that reason that the Assizes were instituted. Judges were sent to all parts of the country in order that litigants should have an opportunity of seeking justice in their own neighbourhood without being put to the expense of travelling far for that purpose. That idea has become a tradition until quite recent times, and it is because this Bill represents rather a breaking in that tradition that, among other reasons, I have put down the Amendment standing in my name.

There is no doubt that there has been a tendency in recent, years to depart from that ideal and tradition. A few years back a change was made in the Assizes, whereby in certain cases for one Assize during the year counties were grouped together, and one Assize was held for three counties instead of the Judge visiting each county in turn. The breaking away from that tradition is embodied in Clause I of this Bill. It is true that it does not abolish permanently any Assize town, but it gives to the Lord Chief Justice, in consultation with the Lord Chancellor, power to dispense with the holding of Assizes at a particular time where, in the words of the Clause, there is no business, or no substantial amount of business, to be transacted. I can foresee that some difficulties may arise in regard to the interpretation of those words "no substantial amount of business." There are many comparatively small places where the amount of litigation is not very great. It seems to me rather unfortunate that you should penalise people who are law-abiding and peaceful by depriving them, when they do go to the Courts, of an opportunity of obtaining justice without any great expense. That Clause, it seems to me, does represent a departure from the ideal which law reformers have had in the past, of making access to the Courts as easy as possible to those by whom such access is desired.

The other Clause, which it seems to me represents a similar tendency, is Clause 17, which deals with the abolition of the district probate registries. I admit at once that the effect that this Clause would have upon certain district registries in Wales has caused me to give attention to this part of the Bill. Under this Bill the only two district probate registries which exist for the whole of the counties in North Wales will be abolished. There are at the moment two, one at Bangor and one at St. Asaph. Under this Bill the registry at St. Asaph will be completely abolished, and Bangor will have what is called a sub-registry against the existing registry which has been there for many years. It may be said that there is very little ground for complaint, inasmuch as Bangor at any rate will have a sub-registry, but I find, on reading the Report of the Committee upon which, as the right hon. and learned Gentleman has said, this Clause is based, that what they mean by a sub-registry is that a clerk shall visit the town about once a week, but that the whole of the work shall be done at Chester, and that all the records which are at present at both Bangor and St. Asaph shall be removed to Chester. I understand this Committee heard no evidence at all from North Wales in regard to the position there, or in regard to the business which is done there, and I do think that the Clause and the Schedule, as they stand, show a lack of appreciation of the conditions which obtain in that part of the country.

I dare say that the right hon. and learned Gentleman could give me figures of the work which is done at Bangor which might indicate that that work is not of a very substantial amount, but I do not think that those figures would correctly represent the situation, for, as I am informed, a great part of the most valuable work which is done by the district registries is the opportunity which they give to those who either from interest or from duty have to concern themselves with wills of going to consult the probate registries in their own districts. A large part of the business which is done by the registries consists of personal interviews of that character. Under this Bill, it will be necessary for these people to travel all the way to Chester. It may be that the right hon. and learned Gentleman does not know the difficulties in the way of travelling in many parts of North Wales, and should it become necessary for the solicitors or the people concerned in a county like Merioneth or Glamorgan either to examine the Register or to consult the Registrar upon matters upon which their advice may be sought, it would mean practically a day's journey either for the solicitors or the people themselves to travel to Chester.

I have also been asked to voice an objection which is taken by the University College of North Wales. It appears that the historical students of that College have been accustomed in the course of their research work to make use of the records which hitherto have existed at Bangor. They have asked me to voice their protest against the removal of such records to Chester, which will involve great expense and inconvenience to students who desire to consult them.

The other matter is a matter which affects the Welsh-speaking population. I am told that 80 per cent. of the interviews which have been taking place in Bangor registry for years past are conducted in the Welsh language. Bangor registry has served peculiarly Welsh counties like Anglesey, Carnarvonshire and Merionethshire, and there is no doubt that many people who desire to consult the registry on wills, and matters affecting wills, relating to very small estates, would be considerably hampered, unless they were sure of meeting there someone with whom they could converse in the language with which they are best acquainted, and the abolition of two registries in North Wales, and the moving of the records to Chester will, undoubtedly, cause considerable expense and inconvenience to people in that part of the country. The right hon. and learned Gentleman has said, as indeed the Committee reported, that this change is recommended, in part, on the ground of economy. Personally, I doubt very much whether much economy will be effected by these changes. Even on the figures given in the Report, it does not come to a very large amount. Where economy is to be effected, I do really suggest that the administration of justice should be amongst the last, and not amongst the first, of the Departments in which that economy is to be made. Recourse to the Courts of Justice is one of the elementary rights of citizenship in this country, and it is not right that the State should make money out of the administration of justice.

I asked the right hon. and learned Gentleman a question on the 16th March, as to the amount of fees which were taken, and as to the expense incurred by the district probate registries and the principal probate registry, and it is clear from the figures which he was good enough to give me, that these district probate registries do pay for themselves—and handsomely pay for themselves—at the present time. It does, therefore, seem unfair that there should be a saving to the State at an inconvenience and a greater cost to the people who have recourse to those registries, which, I have already said, are not a burden upon the Imperial Exchequer: Therefore, I hope the right hon. and learned Gentleman, when the Bill goes to Committee, will be good enough to consider whether he cannot assent to some amendment of Clause 17 so as to ensure that these peculiarly Welsh counties in North Wales shall be served by a registry at Bangor, or some other convenient town, where the people who have occasion to utilise the registries can go, at less inconvenience and less expense than would be possible if this Clause were to be passed as it stands.


I beg to second the Amendment.

I should like to urge upon the attention of the learned Attorney-General the arguments that have been used by the hon. Member for the University of Wales (Mr. E. Evans) for the retention of the registry office, particularly at Bangor. I think this Bill goes a good deal in the right direction in remedying the present state of affairs, a state of affairs which is, I think, on the whole, indefensible with regard to the expenditure of public money on the present circuit system, and I speak, of course, particularly of the South Wales and the Welsh circuits generally. Last January, Mr. Justice MacKinnon, in addressing the Grand Jury at Brecon, made a very striking speech, in which he outlined the time spent by him upon that circuit since the beginning of January. He said: During his experience of the last fortnight, one aspect of it had impressed itself upon him very forcibly, and that was the appalling waste of judicial time that was involved in the working of the system as at present. Since he left London for Haverfordwest, a fortnight ago, he had been occupied in Court for 16 hours, whereas if he had remained in London he world have been occupied during the same period in Court for 55 hours, that was to say, 11 working days in London, as against three on circuit.

There was one other aspect of the system which impressed him. The Assizes at Haverfordwest, Lam peter, Carmarthen, and Brecon were now, so far as gaol delivery went, part of the delivery of the gaol at Swansea. He was well aware, and perfectly appreciated the advantage, of holding Assizes at each county town. He was fully cognisant of and appreciated the advantage of the administration of justice being brought home to the dwellers in each town, and he had observed at each of the Assizes at which lie had been there had been a very large attendance of interested spectators. But he was driven to the conclusion that that advantage, great as it no doubt was, did not outweigh the immense waste of judicial time which was involved, particularly when he knew that when he got back to London he should find himself probably trying civil cases that had been delayed, for many months, possibly even for a year, owing to the great arrears of business, a good deal due to the loss of judicial energy on circuit. He went on to say that, of course, he was not making this protest for any selfish motive: Personally, such a change as he had advocated was wholly altruistic; it was exceedingly pleasant for the Judge of Assize to have idle days in that beautiful county, particularly if it enabled him to enjoy the bounteous and warm-hearted hospitality he met with there; but, after all, this was term time, and he was supposed to be at work and not on vocation, and greatly as he enjoyed the many pleasures of idle days on circuit, he felt that he ought to be at work, and that he ought to be denied those pleasures. That is the position at the present time. A good number of these circuit towns have little or no work, and, in so far as Clause 1 of this Bill makes some attempt, if, indeed, it does make any attempt, at remedying that situation, it is welcome. But my objection to this Clause is, that it does not go anything so far as it should go, particularly with regard to the circuit system in Wales at present. The Clause says that the Lord Chief Justice shall make an order where there "is no business, or no substantial amount of business." What is to be the interpretation placed on the words "no substantial business"? Does that mean that where there is one case, the Lord Chief Justice shall say there is no substantial business, and it can stand over to the next assizes, or be transferred to some neighbouring assizes or does it mean, if there is one case, and that is regarded as sufficiently important, there should be an assize held at that particular town?

The Clause, to my mind, is uncertain as to its exact meaning, or its exact effect. Will the Lord Chief Justice direct that this case shall be transferred to a neighbouring assize, and, if so, to which assize is it going to be transferred? Take, for instance, a civil action to be tried at Dolgelly. First, it is entered there. It is not certain whether the assize will be held there when the case is entered. There is not sufficient business to justify the holding of the assize at Dolgelly, and the Lord Chief Justice directs that it shall be held at Ruthin. Assuming there is not sufficient business there, it will be open to have it transferred to Denbigh, so that the venue of the assize will be Uncertain. I suggest to the learned Attorney-General, that so far as Wales is concerned, it is a fitting opportunity to go a good deal further than this Clause goes, and that the opportunity should be taken to regroup the assize towns. As the learned Attorney-General said, the present assize towns had been selected, not because of any great merit in the assize towns themselves, but because they were convenient centres for travelling in other days, and, possibly, centres of population. It is an opportunity for the right hon. and learned Gentleman to take the whole of the circuit system so far as Wales is concerned, regroup the towns, and avoid the uncertain element in this Bill, so that litigants will know exactly to what assize towns they are to go, and what costs they are expected to meet, instead of the uncertain element in this Bill, under which a litigant will not know where to take his witnesses, or the sum of money in which he is to be involved by way of costs. That disposes of the objection I have to Clause 1.

There is also Clause 7, to which I should like to call the right hon. and learned Gentleman's attention. Clause 7 makes provision for the appointment of certain officers of the Supreme Court. At present there is one anomalous position where the appointment is not made in the regular way that Civil Service appointments are made—namely, the appointment of the Clerk of Assize. All the other appointments are made by the Lord Chancellor, and I would urge upon the Attorney-General that he should include among these appointments the Clerk of Assize, who, at present, is appointed by the exercise of the patronage of His Majesty's Judges. I certainly do not for one moment suggest that that patronage is being improperly exercised. At the same time, it is too late in the day to keep up this old-time method of making the appointments. All these appointments should be made in the same way, and made at the instance of the Lord Chancellor.

With regard to what has been said about Clause 17, I would reinforce the arguments so ably put forward by the hon. Member for the University of Wales, that this registry, particularly from the point of view of the University College in North Wales, should be retained at Bangor, and retained for the public convenience. The argument that the administration of justice should, first and foremost, be maintained for the purpose of the convenience of the public, I hope the Attorney-General will bear in mind, and will bear it in mind with regard to the new grouping of assize towns, because what I desire to see, so far as Wales is particularly concerned, is the restoration, sooner or later—and, I hope, sooner—of something analagous to the Court of Great Session, and here is an opportunity of regrouping assize towns in such a way as to form a new High Court for Wales.


This Bill contains so much that is good that it is difficult to see how anybody can be asked to vote against it. But there are two or three matters which seem to me, though, probably, they can be better dealt with in Committee, to be suitable for discussion at this moment. With reference to the objections taken by the Mover of the Amendment on Clause 1, I venture to think that those objections can be easily met if the rule as to the time at which an action has to be entered goes back to what it was before 1919. Before 1919 a case had to be entered not less than 21 days before commission day. For some reason or other. I do not know why, that was altered in 1919 to seven days. In the case of the big towns it was always seven days, but for everywhere else it was 21 days. One can quite see that with the time cut down to seven days there might be great inconvenience in practice. A case is entered for trial. Until the beginning of that seven days nobody knows whether there is going to be sufficient work to justify the sending of a Judge down to that particular circuit town. I suppose that several days would pass before a decision could be made, and, possibly, everybody would not be notified of any change. A jury might have to be, or have been, summoned; and it might very well be that a change would have to be made nearly at the last moment, and great inconvenience caused. If you reverted to the old rule of 21 days there would be ample time in which to deal with this matter, and to wait, really, until the position was known as to the whole of the circuit, so that there would be no reason for the transfer of a case from one assize town to another assize town, and then again to still another. Such a procedure would simplify the working very much.

As to the question raised by the late Attorney-General (Sir P. Hastings) on Clause 3, I think that the House ought to know exactly what it is being asked to do. The position before 1918 was this: that in every civil case every litigant had, to all intents and purposes, the right to a jury if he desired. In certain cases the litigant gave notice that he wanted a jury, and in other cases he applied for a jury, and he was entitled to it. What was the result in practice? I am speaking with 30 years' experience. In certain cases in business centres this aspect of the case was appreciated—there might be a mass of correspondence. Counsel was asked: "Shall we or shall we not have a jury here?" If you had a good case you replied, "Certainly not." If you had a bad case you applied for a jury, as your only chance of success. The House knows that in some of these cases there are many hundreds of letters which it is quite impossible adequately to put before a jury, and in practice cases of that sort are tried with a jury because it was the only chance of winning a had case. The position at present under the 1920 Act is this: that in cases of fraud, libel, slander, false imprisonment, malicious prosecution, seduction, or breach of promise the party has a right to a jury. In other cases he has the same right, unless the Judge is satisfied that the case can be more conveniently tried by the Judge alone.

For my own part that rule seems adequate. I did not know there had been any criticism upon it. It has certainly worked admirably in practice. The party has a right to a jury—and the burden is on the other side—unless the Judge is satisfied that the case could be more con- veniently dealt with, and more fairly tried, by a Judge alone. I should be exceedingly sorry to see any variation in that rule. One recognises, perhaps, that it is not a matter for lawyers, but more for the public, who are entitled to have their own way. The cases are theirs. It may very well be that our advice is different, for we speak with more experience of the result as to what is best for the public. Still, it may very well be that it is not a matter for us, but for them. To make this position statutory, however, would not, in my humble opinion, be helpful. At any rate if the intention is to restore the position as it was it will be open in Committee to vary it in cases where a real injustice may seem to be done, or where further experience has shown it to be necessary. If you have that position made permanent by Statute it will only be able to be altered by Statute, and in my humble opinion the position would be wholly deplorable and do a great deal of injustice. It is really a question of justice or injustice and the best way of getting a just decision. That is the great essential. Still there is a question of time to be considered as well. Cases are tried in less than half the time by a Judge alone than by a Judge and jury. In certain busy centres there are sometimes a great number of cases which are disposed of adequately by the Judge alone, where, if there were juries sitting as well with the Judge, the time spent on circuit by the Judges would be twice or three times ac much.

The next point to which I wish to refer is that mentioned by an hon. Member—as to Probate Registrars. The only complaint I wish to make—it is not a point that I pretend to understand very much about, it has been represented to me—is on behalf of the registrars who will lose their posts. They are in a very serious position in reference to the Superannuation Acts. Apparently, their view is—I do riot know whether it is right or wrong, but I would ask the Attorney-General to be good enough to consider it—their view, apparently, is that while many of them had to give up their practice at the Bar or their solicitor's work as a condition of obtaining appointment, yet as they took office without the certificate of the Civil Service Commissioners, they are not deemed to have served in the permanent Civil Service for the purposes of the Superannuation Acts. They are extremely nervous as to the result of that. They are obviously going to lose their posts, and they see that their right to superannuation is jeopardised because there is no provision in the Act dealing with them in any way at all.

There is one other criticism I venture to make. That is in reference to Clause 19, which deals with trial by jury in County Courts. If there is to be an increase of the employment of juries in County Courts, the County Courts will cease to work efficiently. You go to a County Court, and you see a long list of smell cases. It is essential, and essential in the interest of the parties concerned, that their cases should be dealt with on that day, and that they should not have to come back a second or a third time to the Court. If there are going to be juries summoned for the trial of these cases, the work of the County Court will take twice or three times as long. I venture to think that in the busier Courts the practice will be unworkable. As a whole I think that justice is administered well in the County Courts. It may be that sometimes one disagrees with the view taken, but if juries were employed I think we would disagree with the result a hundred times for every once we disagree with the-judgment of the Judge alone. The question of time is so important in the administration of justice in County Courts that the Government should hesitate long before they insert or pass a provision giving a right to increase the use of juries in such Courts.


I have little criticism to pass upon this Measure. Hon. Gentlemen will remember that a couple of years ago I took objection to the Bill brought forward then, and suggested that we should go back to the pre-War jury system. When the next Bill was introduced there was very little change made, and the same objection was taken. On that occasion an hon. Friend on the other side and myself were responsible for, drafting an Amendment which practically is now embodied in Clause 3. Before the 1918 Act, and ever since the Judicature Act was passed, it was always left to the Rules Committee as to whether a jury should be summoned or not. As a matter of fact, the rules which they laid down worked extremely well and gave satisfaction. The Act of 1918 made this big change, that it made the right of juries, not by virtue of rules made by the Rules Committee, but according to Statute. At the same time, owing to the War, it greatly limited that right.

The 1924 Bill adopted the same method, but slightly extended the right to a jury. The Bills of 1923 and 1924 purported to extend the rights to the full degree that they were enjoyed before 1918. It was pointed out that they did not succeed in doing so. There is a great difference in embodying in an Act of Parliament a complete and watertight code as to whether or not and when a jury should be employed and otherwise. It is far better that it should be left, as it was, to the Rules Committee composed of men of a legal mind, who understand what they are doing, and can always adjust themselves to particular exigencies all over the country. Therefore I entirely approve of that. The hon. Member for Altrincham (Mr. Atkinson) does not take the same view of juries that I take. He thinks they are a nuisance, that they are nearly always wrong, and that they lake up time. I hope he will not be startled when I say that my experience is of a different kind. The result is that in every case where I see that the Judge takes one view and the jury take another I find that-the jury's is the safer and saner view. Judges, after all, however learned and skilful they may be, are subject to prejudices like the rest of us. It is far better that litigants should have their questions of fact decided not by a single man, subject to idiosyncrasies, but by the opinion, the corporate opinion, that emerges from 12 minds of different kinds; only in that Way, indeed, can the Courts try to do the best in the circumstances and see that fair play is dealt out. After all, we may discuss justice as much as we like, but there is no such thing as abstract justice in the long run.

There are one or, two new Clauses in this Bill of which I also approve, one being that for the appointment of a new Judge. Anyone who is conversant with the state of business in the Law Courts can only regard its continuance as a denial of justice. My hon. Friend the Member for the Welsh Universities (Mr. E. Evans) moved the rejection of the Bill on the ground that, in order to get more work out of the Judges, a provision was put in whereby the Lord Chief Justice and the Lord Chancellor, consulting together, could cut off a certain circuit on a particular occasion if business were light. He said that justice ought to be brought to the homes of the people. So it ought, and I would be very glad indeed to see a sufficient number of Judges appointed to enable the circuits to be kept up as they are now. Mr. Justice MacKinnon was perfectly right when he said, speaking of the circuit system, that going on circuit meant he could give only some 16 hours of work, whereas if he had remained in London he could have put in 54 hours.

There is another modification in the old Bill, and that is with reference to what I may call the extra Judges. In 1910 there were great arrears of work, and an Act was passed for the appointment of two additional Judges, but the Attorney-General of that time, bowing, I suppose, to the prevailing prejudice against appointing more Judges, instead of introducing a Bill to increase the number permanently from 15 to 17, decided to secure the appointment of two additional Judges with the provision that if one of them passed off the Bench there should be no reappointment except on an Address from the two Houses of Parliament. That might result in very great inconvenience, because if, after an Address from both Houses, a Judge had been appointed, and then in another month another vacancy occurred, there would have to be another Address from bath Houses of Parliament. My right hon. Friend has dealt with that very properly by saying that if the condition of things is such that it is desirable, after there has been an Address from both Houses, to appoint an additional Judge, then it is right to presume that that condition of things will exist for 12 months, and the one Address will cover a succession of Judges during that period.

There is only one other point I have to make, and that is with reference to the circuit system. I dare say this could be done in Committee, but I think the Bill ought to make more exact provision for dealing with what the Attorney-General has in mind. Before the Lord Chancellor and the Lord Chief Justice can make up their minds as to whether the amount of work in a particular Assize Court warrants the sending down of a Judge there must be time for notice to be given. There should be a longer period than seven days' notice. If the old period of 21 days were introduced there would be ample opportunity for seeing what the state of business was and how the situation should be dealt with. On the whole I think the Bill is a very excellent one, and I congratulate the Attorney-General upon the honest attempt he has made in Clause 3 to meet objections that came not from his own side of the House, but from the Labour Benches and these benches, with reference to the jury question.


I do not for one moment oppose this Bill, but I should like to call the attention of the House to three points. The first is the Clause which gives power to the Lord Chief Justice, in consultation with the Lord Chancellor, to say, if there is not a substantial amount of business for a particular circuit court, that the assize shall not be held there. I hope my right hon. Friend will see his way to reconsider this decision. I am not going into the Debate which has arisen as to whether it is advisable or not to abolish circuits entirely. I think the talk about the waste of judicial time is grossly exaggerated, and that it is very desirable to send a Judge to each assize town, speaking quite broadly. That question does not arise, however, under the particular power which is to be conferred by this Bill by a provision which, I venture to think, will be unworkable. The Bill says that, after the assizes have been fixed, and after the Judge of assizes has been appointed to go to a town that, at some time which is not fixed in the Bill, if it appear to the Lord Chief Justice that there is no substantial amount of business he is to issue an order directing that the assizes are not to be held.

The vagueness of the expression "a substantial amount of business" is one to which I object to. If there is no business at all at the assizes, there is already power to say that the assizes shall not be held; but this is a new power, to come into operation if there is no substantial amount of business. Even if the seven days' notice of the entry of civil causes were extended to 21 days, that 21 days would be a very long time beforehand to declare there was not a substantial amount of business, because criminal cases are constantly coming along, and criminal work has to be taken into account as well as civil work. I submit that this is a very doubtful power to give, that it would rarely be exercised, and that the saving of judicial time would really be exceedingly small by the infrequent exercise of this entirely new and somewhat arbitrary power. As far as I know, nothing is said in the Bill as to what is to happen to cases which have been set down for trial if it is decided not to hold the assizes. Assume, if you like, that a couple of prisoners had been committed for trial at the assizes at Huntingdon—a town which has been the subject of other references—and that there is no civil work, and that the Lord Chief Justice decides that there is not a substantial amount of business to justify a Judge visiting a town. What becomes of those two prisoners? Nothing is said about it in the Bill. Are they to stay there, possibly not on bail, for another four or five months till the time of the next assizes? Or supposing there is a civil case set down at Huntingdon. What becomes of the civil case if the assizes are not held? Is that to remain over to the next assizes, unless the people consent to go elsewhere? Or in the case of those towns with unpronounceable Welsh names that were referred to by the hon. Member for the Welsh University. Are prisoners at those towns to be taken from one county to another? Surely it would be a very undesirable thing to remove prisoners in that way. That is a point which, I venture to hope, may be reconsidered. As I said before, though there are objections to this power, I think it is a power that will be very rarely exercised, and that the saving of judicial time in the few cases where there is some business, but not a substantial amount of business, will be very slight indeed.

Another point to which I wish to refer is the power to appoint a new Judge in the Probate, Admiralty and Divorce Division to deal with Admiralty work. Two of my hon. and learned Friends who have spoken have had long experience of the subject, but I frankly say that I have never practised in the Admiralty Court in my life, and have no experience of that particular branch of the law, but I believe the case is a thoroughly good one and that Admiralty work does need a new Judge. Now that we are going to make this appointment, surely it is time to put an end to the anomaly which exists at the present moment, an anomaly so absurd that I have never heard it justified in any place where two or three persons are gathered together. I do not know any member of the Bar who practises both in the Admiralty Court and in the Divorce Court. Those who practise in the Admiralty Court may occasionally have briefs in the common law Courts, but I know no advocate who habitually practises in the Admiralty Court and the Divorce Court. The Judge you appoint may be a first-rate Judge as an Admiralty Judge—the very man, one who can inspire that international confidence which has been referred to in connection with the work of the Admiralty Court—but he would be absolutely without any experience of divorce work, which is, of course, more like common law work. On the other hand, if you appoint as Judge one who is well qualified to do divorce work and has had experience of the common law, can he inspire the same international confidence as would one who had practised in the Admiralty Court? I think care should be taken now that we are appointing a new Judge to remove that anomaly, and to see that the Judge who is appointed as an Admiralty Judge should do Admiralty work, and Admiralty work alone; and if that is not sufficient to occupy his time it is better that he should do common law work rather than work in any other part of that particular Division.

5.0 P. M.

The last point to which I wish to call attention is the power of dispensing with juries in County Courts. A great deal has been said by the ex-Attorney-General of the desirability of having juries in the High Court, and I wish to say a word about the County Courts, where there has always been the power to have juries. If juries are a bad thing, as my hon. and learned Friend the Member for Altrincham (Mr. Atkinson) has said, then abolish them altogether, though I should oppose that very strongly. If there is congestion in the County Courts, Courts should sit more days in the month. I do not fancy the vast majority of County Courts sit more than 14 days in the month, probably, and they could probably sit extra days to try jury cases. At present we have not abolished trial by jury- from the County Courts, and I think the Bill is giving a very great power to County Court Judges to deny that right to litigants. One side may want a jury or perhaps both sides may want a jury, and yet the Judge is to have power to say, of his own motion, that there shall be no jury. I remember when I used to practise in the County Courts that some County Court Judges had very strong views against juries, and did everything they possibly could to prevent litigants having juries, such as putting their cases at the end of the list, in order to cause the greatest possible inconvenience. I think everybody felt that was wrong. Litigants are entitled, if they wish it, to have a jury to try their case. After all, a Judge is human, and he may have very strong views one way or the other, and a litigant may wish to have the view of the jury rather than that of the Judge. Also, I think, the House should remember that what has been said about the opinion of the jury and about the opinion of the Judge is not the only thing to be considered. In a trial by jury the Judge has to explain the case to the jury, and if the Judge is inclined to say hastily at first that he knows all about the case, when he comes to address the jury it is a tremendous advantage to him to have really to think the case out and put it in simple language, for very often it leads to his changing his original view. There is a great advantage in having the somewhat slower trial before a jury, and if the parties wish to have it and pay for it, I do not think it is wise to take away that right. I have detained the House with the three points, but I hope my right hon. Friend the Attorney-General will see his way to meet some of the three points I have raised.

Question, "That the word 'now" stand part of the Question," put, and agreed to.

Bill read a Second time, and committed to a Standing Committee.