§ Mr. MACQUISTEN
I beg to move, in page 2, line 13, to leave out the wordsprovision may be made by rules of Court in the same manner as if the Juries Act, 1918, and Section two of the Administration of Justice Act, 1920, had not passed, for prescribing in what cases trials in the High Court are to be with a jury and in what cases they are to be without a jury, and until such rules of Court come into force the rules of Court relating to the mode of trial in the High Court which were in force immediately before the passing of the Juries Act, 1919, shall have effect.and to insert instead thereof the wordscases shall he tried by jury in like manner as if that Act and the Juries Act 1918, had never been enacted.The history of his matter is that, in Scotland, some time after the War, the Judges of the Supreme Court suspended the Jury system, but did not ask for an Act of Parliament to do it. Objection was taken; in fact, I believe a body of trade unionists who were vigilant for the observance of the law, held meetings and protested against it, and circularised all the Judges and the northern Members of both Houses of Parliament. At the same time a case, which fell to be tried by jury, was taken to the House of Lords, and the House of Lords commented adversely upon this action of the Supreme Court. We never had jury trials in Scotland the same as in England. It was a kind of exotic plant, and did not grow up under the. Common Law; but, still, it was a valuable privilege for the subject. 712 Our jury trials were restored, and no one suffered except in cases of urgency. Those who were summoned to attend juries and were required for War work were generally excused by consent of counsel, and I myself suggested a reduction of the jury to the number of seven. Eventually the English Courts took alarm, and near the conclusion of the War, in 1918, the Juries Act was passed.
The English Courts had, for the time being, practically suspended trial by jury. I have very grave doubts whether that Act was in the public interest at all. There were always plenty of people to be found long past the military age who made quite satisfactory jurymen. The experience we had in Scotland for the comparatively brief period during which jury trials were suspended was this, and I think the same, to some extent, was the case in England. Judges have never been considered the best people to judge of questions of fact. Juries are skilled in the common affairs of life. Judges are skilled in law, but not in the common affairs of life to the same extent, as when you get 12 men on a jury. The opinion of many members of my Faculty was that the Judges used to give much smaller awards in runnning down cases, for instance, than they would have got from a jury, and the tendency then was for the solicitor to the plaintiff, or the pursuer, as we call him in Scotland, if not well covered in the matter of costs, having secured his costs to advise his client to abide by the comparatively small amount, and the tendency of the defender was to say, "Well, it is a small matter, and you had better leave it alone, in case you go farther and fare worse." The only people who rejoiced in this state of affairs were the big corporations who had unlimited funds, and also the insurance companies, who, practically, are the real defenders in most accident cases and other like cases, and they, of course, are anxious that jury trials should not be, restored in full.
Believing as I do in the right of the subject to have the verdict of his peers on practically most matters in which he has a dispute with his fellows, I submit that, even in 1918, it was a grave constitutional departure for Parliament to deprive the subject of trial by jury. There have always been, of course, in the legal profession, a considerable number of members who do not believe in jury 713 trial, and think that judges are wiser than juries. I am not one of those. I think they are both very human, and when it comes to a question of facts as to damages, as to right and wrong, you are more likely to get a sound opinion from twelve ordinary citizens and unsophisticated men, and it is a curious thing that, in selecting your jury, you prefer the more unsophisticated. I know, speaking as a counsel, I prefer to get a miner, or some plain working man, to sit on the jury, to a more sophisticated class of persons, such as bankers or insurance agents, because with the unsophisticated mind of the plain man, you get the case decided on the evidence before him. With all respect to His Majesty's Judges, I believe the average juryman takes his duties with a gravity, a solemnity, and a sense of the great duty that is imposed upon him just as much as any Judges. There are always a considerable number of lawyers who prefer the decision of a Judge to that of a jury, but I think that the subject is entitled to have jury trial in practically every case, except where highly scientific or technical evidence is adduced, or where there are questions which are too complicated for the lay mind to appreciate, and I feel that the attempts that have been made from time to time to diminish the right of trial by jury are an injustice to the subject.
I am not so familiar with their history in England as in Scotland, and it is only now that I have taken cognisance of these Clauses in the Bill. I recollect that in this House in 1920— I think it was in December, 1920— there was an Administration of Justice Bill passed. I saw the Bill, and I went to inquire whether I was right to put down an Amendment, because there I found it was permitted to the Judges to say what cases were meet and convenient, on the Motion of either party, to be sent for trial without a jury. That was putting into the power of His Majesty's Judges the decision to deprive a subject of his right of a trial by jury, and I inquired about the opportunity of moving the Amendment, because I saw how grave an injustice was being done. I approved the Administration of Justice Bill otherwise, because it provided for taking divorce and other cases which it was in the interest of the subject to take. I put down an Amendment to the Bill to give the subject the right 714 to have a jury trial, and not leave it to the discretion of the Judges. I watched the Bill night after night. At last at two o'clock in the morning, after the Bill had come down from the House of Lords, I found it was impossible for me to wait to move my Amendment and I left. By the passing of that Act the subject was deprived of his right to jury trial. What has happened? There is a belief— it may be well-founded or it may not— that juries are inclined to be sympathetic with plaintiffs, and that Judges are more inclined to sympathy with defendants. Whether it is so or not, I am not prepared to say, but that is the view which is held. A jury counsel told me that the number of cases dropped off astonishingly when the Bill was passed and trials came before a Judge only. A defendant who is being sued may put in at any moment a tender to settle the case. The jury does not know what is happening; it is hidden from them, but it is not hidden from the Judges. If the jury give an award of the sum larger than that which is contained in the tender the plaintiff recovers his costs, but if by chance a smaller sum, or the exact sum is given than the amount that is tendered then, of course, the party who continues the fight after that particular offer has to pay all the costs, which sometimes come to more than double the sum recovered. The tendency in Scotland undoubtedly was, and I am informed that the same thing prevails in England, that eases were settled in large numbers for comparatively small sums as the result of this power being given to the Judges.
The insertion of this particular Section in the Act resulted in a tremendous falling off in the number of litigants. It is all very well for people to say that is a good thing and that people should not fight cases, but that is not the way to look at it. I believe in my own country there is so much dissatisfaction at this antiquated procedure, involving costs and heavy fees, that there is a comparative boycotting of cases in the Courts. In Aberdeen, that thrifty city, they have arbitration tribunals. There is nothing that more enhances the popularity of tie Courts than jury trials. There is something in the verdict of 12 men, whether it is on a question of character or damages. If we take away the right of jury trial and leave it to the discretion of Judges to make the rules as to whether 715 litigants are to have or have not a jury trial, we shall have all sorts of other things arising. Under this Clause the old right of jury trial seems not to have been restored, because it shows that provision for such trials have to be made by rules of Court. I submit that trial by jury is a primary right and that the question of trial by jury should not be left to the decision of those who flame the rules of Court. They can, if they like, make suggestions to the House of Commons and let the House of Commons decide, but we cannot leave so fundamental a right as jury trial, which is the basis of all our civil liberties, to be dealt with or delegated in any shape or form, therefore I move the Amendment. It is always possible for parties to agree but, apart from that, people should have a right to trial by jury.
I have a similar Amendment in relation to Clause 19. Perhaps I might in the course of my remarks be allowed to deal with this matter so as to save the time of the House. In Clause 19, Sub-section (1, c),there is a provision thatAny action, not being an action to which paragraph (a) or paragraph (b) of this subsection applies, shall, if any party thereto so requires, be tried with a jury, unless the Court or a Judge is satisfied on an application made by any party thereto that the action is more fit to be tried without a jury.Here power is given to a County Court Judge which I submit is wrong. One knows perfectly well that County Court Judges prefer to have exclusive rules in their own Courts. I have before me the report of a case under the 1918 Act which gives certain discretion to a County Court Judge, and which it appears he overstepped, and so brought upon himself the animadversions of the superior Court. One of the Judges in dealing with the matter pointed out that for the first time in history the British subject was deprived of the right to be tried by jury. I submit that the traditional position should he maintained, and that is the absolute right of the subject in civil and other disputes to have his ease decided by a jury.
§ Amendment not Seconded.