§ Mr. LLEWELLYN-JONES
I beg to move,That in the opinion of this House, it is desirable that steps be taken to inquire into the defects in the system of law and legal procedure in England and Wales and into the measures for removing these defects.3.57 p.m.
In rising to speak to this Motion I feel a good deal of hesitancy and nervousness, having regard to the importance of the terms of the Motion. A few days ago I received an anonymous pamphlet containing the following statement alleged to have been made by an eminent County Court Judge:I never was in Parliament and I never wanted to be there. If I were there and pointed out the futilities and absurdities of legislation I should be howled down or ignored.I do not know which of the two fates suggested by this learned County Court Judge is awaiting me on this occasion. My age is probably greater than the average age of Members of this House, and it is only comparatively a short time since I entered the House. The experience of 40 years in a small country town as a county solicitor may not be regarded by many as qualifying me to speak upon this matter. The reason why I selected this subject when I was successful in the ballot was that I remembered that in this year we are celebrating the centenary of the death of Jeremy Bentham, and I need hardly say here that, Although of recent years the work of Jeremy Bentham has perhaps been depreciated in many quarters, yet there can be no doubt that it is to him we owe the suggestion for Many of the reforms in the law of this country which were enacted by Parliament in the course of the last century. This year is also the Jubilee of the opening of the Law Courts by her late Majesty Queen Victoria.
When I put down my Notice a few weeks ago, I was in ignorance that any steps were going to be taken by the Lord Chancellor to refer the question of the reform of legal procedure to a committee, but, After all, I think that the fact that such committee has been appointed, may add considerable interest to the discussion of this Motion in the House of Com- 1104 mons. It is not the first time, of course, that the problem of Law Reform has been brought before the House of Commons. I find that as far back as the year 1651, in the Long Parliament, A resolution on lines not essentially different from the terms of my Motion to-day was moved, and in 1654 a committee was appointed. The two outstanding members - of that committee were the Lord Protector, Oliver Cromwell, and also Sir Matthew Hale, who afterwards became Lord Chief Justice. Again, in 1828, in the House of Commons Mr. Henry Brougham, who afterwards became Lord Chancellor, in a speech of six hours' length, dealt with what he regarded as glaring defects and anomalies in the laws of England, and pointed out to the House of Commons the lines along which he suggested reform should come. Many of the reforms which he advocated did not come in the early days while he sat in this House, or even after he went to the House of Lords, but the great majority of the reforms which he advocated have since been placed upon the Statute Book of this country.
During the century which has passed since then there has been great progress. The criminal law of our country has been humanized, and the substance of the Common Law has been purged of its grosser faults. I think we are prepared to admit to-day that the hulk of English substantive law is rational and well-adapted to current needs. On the other hand, I am quite certain that hon. Members, and particularly hon. Members who are associated with one branch or other of the legal profession, will agree with me that there are still outstanding serious defects which require remedy, and that while these defects are allowed to exist, the prestige of the law of this country is in jeopardy. There are indications of growing discontent in widely different quarters. I believe I am right when I say that the responsibility for this state of affairs must be shared between, first, our substantive law; secondly, the mould or form in which it is cast; and, thirdly, the law of procedure, using that term in its very widest sense.
With regard to the substance of the law of our country, I made the statement that the bulk of English law was rational; but there are still grave abuses, 1105 and the judiciary from time to time have called attention to many of them. In one case, that of Ward v. Van Loeff, in 1924, Lord Blanesburgh saidhis decision was manifestly absurd, but he was powerless to do aught but follow precedent.In the case of Leonard and Others v. Casey, Lord Justice Greer made this remark:No more unpleasant duty has to be per-'formed by a judge than the duty of deciding a casein accordance with a previous decision of courts which are binding on him, which he thinks, as applied to the facts of the case before him, is both unreasonable and unjust.Let me illustrate the position by referring to a small number of instances, which, I believe, are simply typical of a very large number which might be quoted to this House. Take, for example, a point which is frequently referred to—the liability of the husband for the torts of his wife. When the Married Women's Property Act, 1883, was passed, it was evidently contemplated by the Legislature at that time, that, having given the married woman full control of her estate, making her absolutely liable for her own contracts, she would also become liable for her torts, and that the husband would be relieved from that liability. I believe that in the last few years this question was considered in a case in the House of Lords, but the House of Lords, having regard to the interpretation placed upon the Act in previous cases, were unable to alter this rule.
Take another instance. The maxim Actio personalis cum persona moritur governed the Common Law of England. However, in the course of last century legislation brought remedies in respect of certain cases, but, unfortunately, there are still some very hard cases which arise as the result of the application of this maxim. Take a case to which I bad occasion to refer when the Road Traffic Act, 1930, was under consideration. In the case of a road accident, where a negligent driver, who may be responsible for maiming, or even for causing the death of one or more persons, himself dies before action is taken, the persons who are injured or the representatives of the persons who die as the result of that accident, have no remedy whatsoever against the estate of the negligent driver who dies, although 1106 he may be a very wealthy man. Unfortunately, under the Road Traffic Act, the insurer of the deceased person would also be free from any liability.
There is another point which at one time created considerable interest in this House. One of the greatest statesmen that this country has ever seen had his character maligned after his death by an unknown, malicious pressman. There was no remedy whatsoever open to the children or other relatives of that deceased statesman. I think the House will agree with me that it is monstrous that such a state of affairs should exist. Take just one other matter which, perhaps, may not strictly come within the scope of the substantive law, and that is Section 4 of the Statute of Frauds which requires certain contracts to be evidenced by a memorandum in writing. When that Act was enacted, as far back as the reign of Charles II, there were probably at that time good reasons for an Act of the kind, because parties to an action were not competent witnesses if the contract had to be submitted to the consideration of the courts; but during the greater part of the time which has elapsed since that Act became law, the judges have endeavoured to get round the Statute in every possible way, and anyone who takes the trouble to look through the vast volumes of reports in which the Common Law of England is found, will discover an enormous mass of Case Law upon this subject. I see that one writer a few years ago estimated that at the time he was writing fully £250,000 had been expended in litigation in connection with Section 4 of the Statute of Frauds. Another writer makes this statement:Most eases in which the lack of writing was set up as a defence represent a good deal more dishonesty on the part of the defendant in trying to get out of his bargain than fraud or perjury on the part of the plaintiff who had relied upon an oral agreement.Unfortunately, there is no recognised machinery for dealing with these defects in the substantive law. Judges are constantly calling attention to these and other defects in the law, but nothing in the way of legislation is introduced to deal with them. I observe in the appointment of the Lord Chancellor's committee that there is a possibility that the question of the appellate jurisdiction of the House of Lords 1107 may be considered, and I conceive it is quite possible that the appellate jurisdiction of the House of Lords may be abolished as the result of recommendations of that committee. If that be so, I venture to make the suggestion that, although the judicial functions of the Law Lords would cease under such an enactment, here is work which could be done by the Law Lords generally in connection with the improvement of the substantive law and in improving the form of the law, to which matter I now wish to refer.
Law Reform has always been taken to include improvement of the form of the law, and to-day, having regard to the fact that the grosser faults of English law have been removed I believe that our most important concern ought to be the reduction of the law to a more orderly and systematic shape. Lord Bryce in one of his "Studies in History and Jurisprudence" suggests two outstanding questions. First, how are we to frame out of the chaotic mass of our reported cases and Statutes an organised body of rules—a digest or a code? Secondly, how can Acts of Parliament be drawn more concisely and symmetrically? I am reminded of Tennyson's description of the Common Law of England:The lawless science of our law.The codeless myriad of precedent,The wilderness of single instances,Through which a few, by wit or fortune led,May beat a pathway out to wealth and fame.Is it not time that our legislature, assisted by the ripe experience of our higher judiciary and eminent jurists should do something to meet this reproach? I need hardly say that the ultimate aim of every law reformer in this country has been the codification of our law and it may be well, at this point, to refer to a passage written by one of the most eminent jurists of the British Empire who has now passed away, Sir John Salmond, formerly Attorney-General and afterwards judge of the Supreme Court of New Zealand. This is what he said with regard to codification:The advantages of enacted law so greatly outweigh its defects that there can be no doubt as to the ultimate issue of its rivalry with the other forms of legal development and expression. The whole tendency in modern times is towards a process which, 1108 since the days of Bentham, has been known as codification, that is to say, the reduction of the whole corpus juris, so far as practicable, to the form of enacted law. In this respect England lags far behind the Continent. Since the middle of the eighteenth century the process has been going on in European countries and is now all but complete. Nearly everywhere the old medley of civil, canon, customary and enacted law has given place to codes constructed with more or less skill and success. Even in England and the other countries to which English law has spread, tentative steps are being taken on the same road. Certain isolated and well-developed portions of the common law such as the law of hills of exchange, of partnership and of sale, have been selected for transformation into statutory form. The process is one of exceeding difficulty, owing to the complexity and elaboration of English legal doctrine. Many portions of the law are not yet ripe for it, and premature codification is worse than none at all. But the final result is not doubtful.I see that a year ago at the Guildhall banquet, the Attorney-General replying on behalf of the Bar of England, expressed the hope that one task would not be overlooked, namely, the consideration of the possibility of codifying or simplifying some topics of the law. I quite realise that general codification might not be practicable at present but a good deal of partial codification might be undertaken by the Government. I would suggest particularly the possibility of the reduction of our criminal law and the law of criminal procedure to a code. Last year His Majesty's Stationery Office printed a translation of the new Italian penal code. It is a comparatively small volume. I do not think it has more than 200 pages but the whole of the criminal code of Italy is comprised in it. Here is an indication to our legislators as to what can be done.
Within the last few days the importance of codifying our criminal law has been brought prominently to our notice. In referring to the cases which I am about to mention I must not be taken as expressing any opinion on the merits of those cases. In a case of Rex. v. Manley in the Court of Criminal Appeal last week the defendant was indicted for a common law misdemeanour namely "doing an act tending to effect a public mischief." Apparently, the prosecution was based upon a rule in the case of Rex. v. Higgins of the year 1801. Briefly, that rule provides for dealing with 1109All offences of a public nature, i.e., all such acts or attempts as tend to the prejudice of the community.One can easily see that such a wide description of an offence might be an instrument in the hands of the Executive for purposes for which it was never intended. Then, take the prosecutions, here in London on Saturday and in a London suburb on Monday last undertaken under an Act of 1817, and procedure following largely a Statute of Edward III. I do not wish to comment upon the cases for the defence in those prosecutions, but I say that we ought not to find in the twentieth century our courts having to deal with cases based on old rules of common law or founded upon statutes 600 years old. Surely it is time to consolidate and modernise our criminal law.
With regard to Statute Law generally, as I have said, codification is practically unattainable at the moment, but I plead for consolidation of the Statutes. That is practicable, and, indeed during the past few years there has been considerable progress in this direction. Anyone who refers to the Annual Statutes of 1925 for instance will find that a large number of important Acts have been consolidated. There are Lord Birkenhead's Statutes dealing with the Law of Property, and then in 1929 we had the Company Act. But I suggest that when consolidation takes place, steps should be taken, as far as possible, for the amendment as well as the consolidation of the law. I am not oblivious of the fact that a former eminent Clerk to this House in a work on the machinery of legislation has dealt with the difficulty of introducing amendments into consolidating Bills.
To take one special case in which I think Statutes could be consolidated with immense advantage, I would refer to the Public Health Acts which are now of such vast importance to local authorities, local administrators, owners and occupiers of property and their advisers. The Public Health Act of 1875 contains 343 Sections and five Schedules. The Act of 1907 which amends it in various particulars, contains 95 Sections and two Schedules. The Act of 1925 contains 87 Sections and five Schedules. These Acts and the other Public Health legislation and the decisions of the High Court on public health and kindred matters are 1110 now contained in three immense volumes to which every public authority has constantly to refer. To indicate the advantage which accrues from the consolidation of Statutes of this kind, I may mention that the Supreme Court of Judicature (Consolidation) Act of 1925 repeals the whole or part of 109 previous Statutes, starting with an Act of Edward III and coming down, practically, to the year 1925. One can easily realise the immense boon which the consolidation of those Statutes has been. Instead of having to wade through 109 Statutes the whole of the law with regard to the Supreme Court is contained in one Act.
I should like now to deal with what are regarded as the outstanding defects of our present legislative machinery. I think the first point which will occur to hon. Members and one which is con stantly mentioned in this House, is the objection to legislation by reference. I have scarcely ever known of an important Bill being introduced without the criticism coming, from one side of the House or the other, that it contained too many references to other Acts, and that this is an increasing difficulty to those who have to administer or interpret Acts of Parliament.
To take some recent examples, last Session the House dealt with certain problems of National Health Insurance. The National Health Insurance (Amendment) Act was introduced in June or July. This is legislation which affects 15,000,000 of the population of this country. It is to be administered largely by men and women who have no knowledge whatsoever as to the intricacies of Statute Law. Officials of approved societies and of insurance committees have to administer the various National Health Insurance Acts. When the Minister of Health introduced that last Measure in this House he had to occupy himself at considerable length to explain its provisions and its relation to the previous Acts of Parliament, and I am afraid that many of us, even after hearing his very lucid interpretation of the Bill, were still in considerable doubt as to its effects. It would be very much better if a consolidation Bill had been introduced, including the Amendments which appeared in that Bill. It is only last week that a similar case arose, when the Rent Restriction (Amendment) Bill 1111 was introduced. More than one Member pleaded with the Government to take steps to consolidate the legislation on that subject, and I hope the Government will keep this important consideration before them.
There is another matter, which has been discussed very much more widely, and that is the question of delegated legislation. There can be no doubt that in recent years the encroachments of the central departments on the powers of Parliament have become positively alarming. Regulations and Orders with the force of law are issued almost daily by one Department or another, and they vastly exceed in number and bulk the Acts of Parliament for any year. One is almost tempted to say that civil servants are usurping in many connections the position and functions of Parliament.
Even more objectionable still is the increasing tendency to vest the Ministers of the Crown, or in effect the permanent central departments, with judicial powers, and to withdraw from the Courts of Justice in this country the decision of matters which come within the purview of certain Acts of Parliament. There is a marked growth of a new administrative law in this country, and it is not to be marvelled at that the Lord Chief Justice two years ago published a book, "The New Despotism," which is an indictment of the tendency in this connection.
The second part of the Motion deals with the defects of legal procedure in England and Wales, and I think this aspect of the Motion may be regarded as including roughly two points: first, the constitution and organisation of our courts, and, secondly, the actual steps which have to be taken by litigants who resort to our courts and the methods of presenting their case to the tribunals. Good laws, and these laws in a form easily accessible to the citizens of a State, are valueless unless adequate provision is made whereby persons can enforce, with expedition and without unnecessary expense, the rights to which they are entitled under these laws. I think we can congratulate ourselves on the high character of the British Judiciary. Judges of the High Court and of the County Court justly merit the entire confidence of their fellow citizens in their 1112 outstanding ability, their absolute integrity, and their determination to do justice as between suitors, whether poor or rich.
But our complaint is that the road along which a litigant has to travel from the time he commences his action until he finds himself before the High Court, is a long road, often a circuitous road, and almost always a very costly road. Where a poor man has a rich opponent against him, that opponent can block his progress and throw obstacles in his way with a view to deterring him from proceeding with his action. Compare the position of a wealthy litigant or a large firm with that of a comparatively poor man. To the wealthy man and to the man in the big way of business, a lawsuit is merely an incident, an episode, out of many similar episodes and incidents. If it is decided against him, it simply means that when his balance-sheet is made up for the year he has to put on one side of that balance-sheet the amount that he has lost in connection with the suit. But take the position of the poor man, the small man. A lawsuit is often a matter where his honour is at stake; he is fighting for all that he has, for all that is dear to him, and loss and expense in a lawsuit of that character often mean absolute ruin.
I believe that neither members of the Judiciary nor members of the Bar can realise the situation in the same way as a small country-town solicitor can do. He sees the small litigant calling at his office, often day by day, to know the progress of his litigation, and disappointed because it has been blocked here or impeded there, with the result that in many cases in my own experience one has had to appeal to litigants, to persons who have quite good claims, not to go on with those claims but to realise that whether they won their suit or lost it, it would often mean great financial loss or ruin to them. This is not a position of which we, as Englishmen or Welshmen, can be proud, and it is no wonder that a recent writer refers to our legal procedureas that utterly effete, wasteful, and ponderous system, which needs the most drastic revision.It is not surprising that the growing scandals connected with lawsuit delays and costs induced the London Chamber of Commerce to appoint a committee to take 1113 up the matter. A report was prepared, and the main features of this report met with the approval of the representative bodies of both branches of the legal profession. The main objections raised to the present system—and I think these summarise very largely the whole position—are these: The length and complexity of pleadings, the necessity for strict proof of all documents and facts by personal attendance of witnesses, facilities afforded for unnecessary interlocutory proceedings, the calling of unnecessary expert witnesses, the unnecessary prolongation of trials, and the uncertainty as to when actions will be heard.
One aspect of this matter has already been referred to during Question Time to-day. Various recommendations were made by that Committee, and most of them were subsequently embodied in what is now known as the New Procedure. This has been decidedly a forward step, and from an answer which was given by the learned Attorney in this House on the 2nd November, it is understood that the New Procedure rules are working smoothly and effectively. At present resort to the New Procedure is optional, but it is urged by those who have interested themselves in the matter that after further experience of their working they should be made compulsory.
The public announcement which the Lord Chancellor made about 10 days ago of the appointment of a Committee of Inquiry to deal with the problem of business in the courts would not come as a surprise to those who were acquainted with his public declarations. Speaking at King's College, London, in March, 1928, after referring to some of the defects of our legal system and deploring the increasing cost of litigation, Lord Justice Sankey, as he then was, used the following language:It was time that an inquiry should be made into legal procedure on the civil side, an inquiry conducted not merely by lawyers, but by lawyers and business men.May I venture to regret here that the Committee which was set up did not contain a number of business men? Lord Justice Sankey added:What was wanted was some reform of interlocutory proceedings and mode and place of trial which would lower the cost of litigation and provide some quicker and more convenient method of achieving results.1114 The Committee which has been appointed is clearly to make the inquiry which he then had in mind. Its scope is in some respects wider than what was contemplated by the present Lord Chancellor five years ago. It is to consider the state of business in the Supreme Court, that is, on the civil side, and also to apply itself to the question of the administration of business on the criminal side in the Central Criminal Court and at assizes. In both departments the objects to be kept in view are greater expedition in the despatch of business and greater economy in administration. The terms of reference clearly contemplate a very full and searching inquiry into the judicial machinery of the Supreme Court. The heads of the inquiry correspond roughly to Parts I, II, and III of the Supreme Court of Judicature (Consolidation) Act, 1925.
One is naturally disposed to ask certain questions arising out of the terms of reference, and perhaps the learned Solicitor-General may deal with one or two of these questions. Will the Committee be empowered to inquire and examine into any defects which may appear to exist in the system of procedure, using this term in its narrower sense, or the administration of the law in the High Court or the Court of Appeal? I am not clear whether that is included in the terms of reference. The second point is, Does the reference contemplate the continuance of the present circuit system 7 This is what is assumed from the words:Due regard being had to the maintenance of the present circuit system.The other point to which reference has already been made is this. I presume that an invitation will be sent out to various bodies who are interested in the scope of the inquiry to give evidence. At the same time, I am not certain whether there is not a sense of disappointment that the scope of the inquiry is not far wider than it is. Let me indicate one or two directions which one had hoped such an inquiry would take. In the first place, I believe that outside London there is a very strong opinion, both in legal and business circles, in favour of a wide extension of the jurisdiction of the county courts, but no inquiry of that sort is embraced in the reference to the committee. It is within the knowledge of most of us that there is at the moment 1115 a good deal of dissatisfaction, and a growing dissatisfaction, with the assize system. It is not regarded as entirely meeting normal requirements for speedy and inexpensive justice. I believe that the demand which is heard from time to time for greater decentralisation in the administration of justice is one which ought to be considered. In a Debate in the House of Lords in July, 1911, Lord Gorell made the following statement:It is interesting to point out how much England is behind in facilities for bringing cases rapidly, economically and locally. In France there are 375 tribunals of the High Court covering the whole country. In Holland there are 23 local High Courts.In such a scheme for England and Wales the district High Courts would not merely be courts of first instance, but could be empowered to hear appeals from justices, quarter sessions and the local county courts within their areas. At this point may I be permitted to make a slight digression? I am certain that the House, knowing what part of the country I represent, will forgive me making it. I trust that when the time comes to give effect to what I regard as the important matter of decentralisation of the judicial system, the claim of Wales to be treated as a unit, to be constituted as one of the great judicial districts, will not be disregarded. Wales, with its population of 2,500,000, with its marked national characteristics and ideals, is surely entitled to be accorded the same status as the six counties of Northern Ireland with a population barely half that of Wales. I would remind the House that it is but two years more than a century since Wales was deprived by Parliament of her separate judicial organisation. This organisation had been set up by the Tudors, and it met with the commendation of such jurists as Lord Coke and Lord Bacon. Welshmen may not demand the revival of the Courts of Great Session, but in any scheme of decentralisation she will certainly ask to be constituted into a judicial unit.
There are other matters to which I should like to refer, but my time has gone, and they will probably be dealt with by other Members who take part in the Debate. Such matters are the administration of the local justices, the relations between the two branches of the profession, the question of fusion, and 1116 last, but not least, the question of the establishment of a ministry of justice. I have attempted—I fear at too great length—to survey the broad expanse of our system of law and legal procedure. I have dealt with some of the outstanding and salient features in that system which have attracted my attention. I have had to overlook many others and leave them to some of my colleagues who will follow me. It can scarcely be expected that the House will agree with all or even most of what I have said. To many what I have described as defects may appear as merits. Others may regard our legal system almost with superstitious veneration and resent as sacrilege the attempt to subject to hostile criticism the ancient institutions of this realm. If any such there be here, I would merely ask them to listen to the words of Sir Mathew Hale, one of the greatest of the many great Chief Justices of England, in his treatise, "Of the Amendment of the Law." He said:By long use and custom men, especially that are aged and have been long educated to the profession and practice of the law, contract a kind of superstitious veneration of it beyond what is just and reasonable. They tenaciously and rigorously maintain those very forms and proceedings and practices which, though possibly at first they were seasonable and useful, yet by the very change of matters they become not only useless and impertinent, but burthensome and inconvenient, and prejudicial to the common justice and the common good of mankind; and considering the forms and prescripts of laws were not introduced for their own sakes, but for the use of public justice; and therefore, when they become insipid, useless, impertinent, and possibly derogatory to the end, they may and must be removed.With confidence I commend my Motion to the House. The assent of the House will not imply that hon. Members accept all my statements or agree with all my suggestions. But it will certainly place on record the opinion of the House that a case for inquiry and investigation has been made out. It will also be the recognition by this House that the recent action of the Lord Chancellor is necessary and timely. To-day there is ample scope for legal reform, and I respectfully appeal to the Government to implement the terms of my Motion. They have an unrivalled opportunity to deal with a great national problem and by so doing to remove a vast amount of dissatisfaction and discontent and to restore and 1117 strengthen the confidence of the people of this realm in the administration of justice.
§ Mr. JANNER
I beg to second the Motion.
It has been very ably moved by my hon. Friend, who has dealt with a wide and extensive series of objections which ought to receive the attention of everybody who has any interest in the procedure and practice of legislation of this country. I do not propose more than I can help to cover matters similar to those to which he has referred. There are two matters of extreme importance which the House ought to consider very carefully and deal with as quickly as possible. They affect the whole population of the country. The first is legislation by reference. Already a Joint Committee of both Houses exists for the purpose of codifying the laws and of removing a large number of Statutes by consolidating them into one comprehensive whole. It would probably surprise hon. Members that in the whole of this Parliament only one set of Measures, the Solicitors Acts, has been referred to that Committee, although there are innumerable Statutes which could be dealt with in this manner. The one set of enactments which has been referred to that Committee has resulted in a large number of Acts being consolidated into one. Strange to relate, they are Acts which refer to solicitors, who are presumed to know a little more than the man in the street about the contents of the Acts that exist.
Where does the unfortunate individual who is presumed to have a full knowledge of the law stand with regard to the elaborate system of uncodified laws? Is he in a position to say that he is acting within the law, that he is not committing an offence? Does it not happen on innumerable occasions that the layman, even when he consults a lawyer on a particular matter, is uncertain as to the position, and that the lawyer has to delve into a long and intricate series of enactments in order to decide what the position is? The idea of long and intricate Statutes, particularly in criminal matters, and the idea that a man is presumed to have a knowledge of the law, do not go well together, and I think it will be the general opinion of all hon. 1118 Members that the sooner the codifying of those enactments is taken in hand the better it will be for the people of this country.
There is one important section of legal procedure and practice which my hon. Friend left alone. The most generally known courts are the courts of summary jurisdiction, particularly now that motoring offences and similar offences have become common. These courts in 1931 dealt with 665,332 persons. Some of them were charged with more than one offence. It is clear, therefore, that any difficulty which appears to exist in the administration of justice in those courts, whether it be in respect of procedure, practice or legislation which they have to administer, should be carefully examined, and corrected if they are found to be existent. The person who goes into a court, particularly a police court, usually finds himself in a strange atmosphere and in circumstances which naturally have the result of creating a position for him which is unusual and which he is not easily able to grasp. There are many petitioners who are unaccustomed to any of our courts and who feel themselves in a nervous and anxious state of mind when they go into them.
What is the position with regard to a person who may have committed a very small offence, or who may be charged with having committed an offence, who is described as a prisoner and put into the dock, and, when it comes to giving evidence, is put into a box which terrifies him? He is asked to stand in a box, and is examined by more or less experienced petitioners. He is told he is not answering questions but it making statements, and is asked why he does not appreciate the difference between making a statement and asking a question. In those circumstances how can it be expected that a man, whether he be a defendant or a witness, will be capable of expressing fully all that is in his mind. It may he a small matter, but it is suggested that it might be well to have the witness seated on a chair, and, as is the case in some countries, allow the prisoner to be seated by the side of his legal adviser instead of his having to lean over the side of the dock to whisper in his ear such instructions as may be necessary while evidence is being given by a witness. In a large number of courts lay magistrates sit. It 1119 may be held that there is a large and important body of public people who are quite competent to understand all that comes before them in the large variety of cases which are dealt with in a police court.
§ Mr. JANNER
Whether they be of a minor character or not, they are of major importance to the individuals concerned. It has already been said by the hon. Member who moved this Motion that the gravity of the offence is not really the most important matter when considering the individual who is charged.
§ Mr. JANNER
I am sure there was no intention on the part of my hon. and learned Friend to interrupt my train of thought, and I am sorry that I took the matter up in that way. What I wanted to point out was that in these courts, where such a large variety of offences is dealt with, the position should be so clarified that the individuals who appear before them may understand what the position is, and not be brought into an atmosphere which leaves them at a great disadvantage. In the view of many people, the present system of appointing magistrates is not the best that could be devised. The political bias of a potential magistrate should not be taken into consideration when it becomes a question of appointing him to the bench. Magistrates ought to be appointed for their knowledge and experience—in addition, of course, to their character and the public work they have performed—and their ability to understand the various matters which are likely to come before them.
§ Mr. JANNER
There will be ample opportunity in the course of the Debate for my hon. Friend to make his comments on any difficulties which may exist in that respect, and I am sure the House will give him a careful hearing. I want to make one other point with reference to 1120 procedure in police courts before coming to my main complaint in respect of a matter which emanates from decisions in police courts. Many people feel that the evidence taken in courts of summary jurisdiction in cases which may have to go to a higher court should not be published at that time, but that publication should be deferred until the trial at the assizes or quarter sessions. It is generally felt that the chances of an accused person getting a completely fair trial are minimised if the various statements made in evidence are published so that they may be read by laymen. It is the view of a large number of people who practised in the courts, and have observed very carefully the results of the publication of evidence, that such publication should be stopped; the evidence should only be published at that time if the accused person is not committed to trial.
There are many other difficulties, but I will not refer to them now, because I wish to come to the question of appeal from the courts of summary jurisdiction to the higher courts. It is quite clear that on many occasions those who sit in judgment in the lower courts have prejudices. They are quite honest in their views, and are anxious to see that justice is done, but, all the same, they are people in such a position in life as not to be able fully to understand either the matters which come before them or the penalties which ought to be inflicted. Sometimes there are aged men sitting on the bench who can hardly hear what is being said. Everyone who has had experience in the courts knows that well. Sometimes there are persons who, if I may use a vulgarism, are "a bit crotchety," who do not quite appreciate that a man's future may depend upon even the smallest conviction recorded against him, and who magnify certain offences to such an extent that one would almost imagine that murder had been committed if a case of obstruction comes before them. That, again, is within the knowledge of anyone who has had any experience in the courts. Therefore, the right of appeal ought to be most carefully and jealously preserved. If the defects to which I have referred, and there are many others, are removed, perhaps the right of appeal may not be a matter of so much importance, but as things stand at present it is not right that the doors of any court of appeal should either be jammed against the individual 1121 who wants to open them or should be definitely closed as a matter of fact if not as a matter of law.
This matter of appeals provides one of the most striking examples of the necessity for immediate reform. In 1931, as I have said, 665,332 persons were charged before the courts of summary jurisdiction, and I think I am correct in saying that there were only some 200 or 300 appeals. It may be said that the reason why there were not more appeals is that the course of justice runs so smoothly that out of all that number of cases no more than 200 or 300 persons felt themselves aggrieved. I respectfully submit that that is an entirely wrong view of the position. The explanation has to be sought in a, very different quarter. A rich person who appears before a court is in a very different position from a. man who has to watch very carefully every penny he spends. He has available to him the very best legal advice, and can find whatever money may be necessary for recognisances or sureties, and the doors of the court of appeal are wide open to him. No matter what the difficulties may be in the way of appeal, he can overcome them, because he can go to the people who know and pay for advice, and, believe me, there are not. very many people even in the law who know all the technical steps which have to be taken in order to carry through an appeal from the courts of summary jurisdiction. I have dealt with hundreds of cases in the police courts, and in the course of that experience—which I am sure must be similar to that of others who have practised in the courts—I do not think I have advised more than three people to appeal. That was not because there was no cause for appeal in more of the cases but for very different reasons, to which I will refer later.
We shall be told that among the cases which come before the petty courts are thousands concerning unlighted bicycle lamps And minor motoring offences, but the truth is that nobody who is charged with such a simple offence as not having a lighted lamp on his bicycle will trouble his head about appealing. He feels that no stigma attaches to him, he does not very much care what happens, and he will pay his fine. Nobody is going to trouble very much about minor offences, those which leave no stain on the name of the individual concerned. Now as to the 1122 procedure in entering an appeal. I am not at all sure that every leader who practises at the bar would be able to say off-hand, without having to look in the book, and look very carefully, what steps have to be taken in an appeal—how many days' notice has to be given, what the notice has to contain, on whom it has to be served, why it has to be served, why it is necessary to rush the service of the notice, and the hundred and one other points involved. I have noted them down, because otherwise I was not at all sure that I should be setting them out in proper detail when relating them to the House, although myself a lawyer and having gone through them recently.
Seven days are allowed for giving notice of appeal. The man finds himself in the police court; he knows nothing at all about the procedure—he has probably never been in a court before—and it takes him seven days to appreciate what has happened. When the seven days have gone, or it may be after 14 days, be consults a lawyer, and says, "I have been convicted of such-and-such an offence. I did not realise that it was such a serious thing as far as my character was concerned, but I have been threatened with the loss of my employment. I did not dream that a petty offence of this description would have such serious consequences, and I want you to give me an idea of what it is best to do." The lawyer says, "I am sorry, but you have not come in time." The man goes to his lawyer 14 days afterwards, and puts his position before him; or, being a poor man, he may go to the magistrates' clerk, or to some friend; but he is told that he is too late, that he has not given his notice of appeal within seven days. Even assuming that he goes to the lawyer after three days, and says that he wants to appeal, the lawyer, on going into the facts, may say that he is not satisfied, and must examine the magistrate's notes, and he is probably unable to give notice within the time allowed for that purpose.
That, however, is not the end of the story. Within three days of giving notice of appeal, the individual who wants to appeal has to go before a petty sessional court and to enter into recognisances, with or without sureties, for the purpose of proceeding with his appeal. His whole effects may perhaps be worth of fur- 1123 niture in his home, if so much as that; indeed, he may be in debt, so that mathematically he may be worth a minus amount; but he is told that, before he can proceed with his appeal, he must enter into recognisances. In the first place, he probably does not know what recognisances mean. Then he is told that he must either pay into court or find sureties for a sum of about £50—and this may be a man who is on the verge of starvation, but who yet values his good name. There is no way out; he must do that if he wants to proceed with his appeal, because this sum of money must be forthcoming or guaranteed, in order that the costs of the respondent may be met in the event of the appellant failing in his appeal. I do not think that any Member of this House is likely to agree that that is in the least degree reasonable. I doubt whether the Poor Persons Department—a very important department, which renders very important and useful service—could help in a case of this description, and, whatever may be the consequences to the individual, if he cannot find the money or cannot find sureties, his right of appeal has gone and he has to remain under the stigma of conviction for all time, whether it be justified or not.
Supposing that he is in the fortunate position of being able to find the money or to secure it, he then has to obtain legal assistance, and in this respect there is a further difficulty. Anyone who wishes to appeal to a court of quarter sessions in order to have a decision of a court of summary jurisdiction tested cannot appear by a solicitor unless he has special leave, which is only given when there happens to be no member of the Bar present. I say with the greatest respect to members of the Bar who are Members of the House of Commons that that is a very serious thing for a large number of appellants. A solicitor prepares the case for the petty sessional court; he attends at the court; and he not only knows what is in the magistrates' clerk's notes—which are very often imperfect, a fact which has been commented upon by Judges of the High Court—but he also knows what is very much more important, namely, what matters are not referred to in those notes. He knows what transpired in the court; he knows 1124 how the witnesses demeaned themselves; he knows the numerous points in the case which every advocate has to have at his finger tips in order to be able effectively to proceed with his case. The solicitor who has acted in the lower court has now to prepare, at the appellant's expense, a brief, which in itself cannot possibly contain all the items to which I have referred. No doubt there will be consultations with counsel, which of course have to be—or ought to be—paid for, and the brief is handed to counsel. Counsel proceeds to the quarter sessions, and the proceedings are then conducted at a very much heavier cost to the appellant than would have been the case if the person who had acted in the lower court were able to conduct the matter to its conclusion. That is a matter of practice which might very well be investigated, and which, in my opinion, is of serious importance from the point of view of thousands of people who appear in the various courts.
The method of appealing to which I have been referring is an easy one. There is another method by which an appeal can be taken, and that is by asking the magistrates to state a case. It is difficult to imagine that there could be anything more difficult than the instance I have quoted, but let us see. A person who is dissatisfied with the decision of a court of summary jurisdiction can ask the magistrates to state a case if a point of law or a question of jurisdiction is involved. In this event the appellant has to give notice in writing within seven days after the hearing, requesting the court to state a case. A copy must be served on the clerk of the court, and a copy must be left for each of the Justices who sat at the hearing. I do not know how many hon. Members are aware that sometimes there are 12 or 14 Justices sitting and listening to cases. A somewhat smaller number has occurred in my own experience in a case in which it was necessary to go to the High Court on a case stated.
The case has to be stated unless the Justices consider that the application is a frivolous one. If they decide that the application is a frivolous one, the poor appellant has to make an application to the High Court calling upon the magistrates to show cause why the case should not be stated. That is a cumbersome and 1125 highly technical proceeding, which certainly no layman would be able to conduct without assistance from a lawyer of experience in these matters. When the matter does proceed, extreme care has to be taken by the appellant to mention every particular on which he requires the decision of the High Court. As a rule, his lawyer drafts a case and submits it to the respondent. It is then submitted to the magistrates' clerk. The House will readily understand the complications and difficulties that are bound to arise in this regard. Even after the magistrates have prepared the case, the applicant is required to enter into recognisances or find sureties according to the requirements of the Justices before the case is delivered to him in a similar manner to the requirements on appeal to quarter sessions. He then has to give notice, of appeal to the other party, and the case has to be sent to the High Court within three days after the giving of such notice of appeal, which three days may include a Sunday. Therefore, it means in many cases that the notice of appeal has to be lodged here in London within three days, of which one may be a Sunday. The magistrates, on the other hand, have three months in which to state their case. Any failure on the part of the appellant to comply with the technicalities puts him out of court. These cases have to be entered at the Crown Office for hearing eight clear days before the day on which they are set down, notice has to be given to the other party, and copies have to be provided for use of the Justices at least two days before the date of the hearing. Let the House imagine what this complicated and intricate machinery is going to cost a person who wants a case stated. Whether the amount or the fine involved be small or large, the costs are equally great, and they have to be met by the individual who desires to appeal.
§ Mr. JANNER
I will come to that in a moment; I have some suggestions to make which I hope will meet with my hon. Friend's approval. I do not think that any Member of the House will deny that a remedy is necessary, and that a cheap and effective system should be introduced whereby appeals can be reasonably and properly made. My hon. Friend asks 1126 what remedy I suggest. I suggest that appeals from the petty sessional courts should not be more complicated than appeals from quarter sessions or from courts of assize, and that, instead of all these complicated technicalities in connection with appeals, a man who is convicted should be entitled to give a simple notice, either in writing or even verbally, to the magistrates' clerk, saying that he wants to appeal and setting out in simple terms the grounds on which he is dissatisfied, and leaving the magistrates' clerk to take the other steps. Why should the whole of this burden be put upon the appellant? Why should not those who are competent and who understand the law have the technical difficulties placed upon their shoulders, instead of upon the appellant, who in the majority of cases cannot possibly understand them, leave alone carry them into effect?
What, I would ask, is the position of the solicitor who knows these difficulties, when a person comes to him for advice on the question of appeal? It is not very difficult to realise that, in the first place, he would inform the individual concerned that, unless he had a substantial amount of money at his disposal, it was in his own interest to suffer the ignominy of a conviction rather than to proceed with his appeal. The courts of summary jurisdiction deal with a very wide series of matrimonial causes. If you go into the Divorce Court you hear learned counsel arguing about matters of law pertaining to the various cases that come before these courts, and you will no doubt be amazed at the number of the cases referred to. Every point, every dot on an "i," every stroke of a "t," is examined. Counsel know that decisions relating to each of the facts that come before the court have to be very carefully scrutinised. They raise numerous objections, pointing out what the difficulties are and what learned judges have said in previous cases, how the Russell case, for example, affects the matter at issue, how the evidence is imperfect, why certain evidence should not be admitted at all; and so on.
These considerations are also at issue in the courts of summary jurisdiction. There are few cases that come into the higher courts which have more intricate points involved in their conduct than some of those which come day by day 1127 before the magistrates in the ordinary police courts. The Russell case, decisions on points of evidence, on points of procedure and on points of law are just as frequently before courts of summary jurisdiction as they are before the higher courts. Large numbers of cases come before magistrates who are not versed in legal technicalities. Some of the magistrates are prepared to accept the decision of the maigstrates' clerk without question, many of them are not and say that they do not care what the magistrates' clerk's views are, and that they are the people who are going to decide the matter.
In these circumstances, the position should be very carefully watched from the point of view of safeguarding any person who may receive an unjust conviction or an unjust order in respect of a wife's maintenance made against him. If a person is dissatisfied with such an order he has to appeal to the Probate, Divorce and Admiralty Division of the High Court, and there, again, a long series of technical steps have to be taken. Notice of motion must be served within 21 days after the order has been made; a copy of the notice, two copies of the order, and of the summons, and of the magistrates' clerk's notes of the evidence must be left at the Divorce Registry. The notice itself must be served on every party, and upon the magistrates' clerk, eight days before the day named in it for the hearing of the motion. A wife obtains costs against her husband, even though his appeal is successful, and the magistrates' clerk's notes are usually accepted as a correct version of what happened in the court.
That situation does not exist in appeals from the higher courts of justice. In those cases the procedure is very much simpler although the decisions of eminent judges are being appealed against. It might be said that a poor person is given a certain amount of assistance on proceeding with his appeal from the court of summary jurisdiction. Let us see. Let me put to the House the position when a poor person has been allowed a solicitor or counsel. According to the Statutory Rules and Orders of 1908, the following is allowed:A fee not exceeding two guineas to a solicitor and a fee for counsel not exceeding £1 3s. 6d, or, if in the opinion of the court the case is one of difficulty, not ex- 1128 ceeding £2 4s. 6d., provided that the court at the conclusion of the appeal may, if it thinks fit, certify that the case was one of considerable length and difficulty, and thereupon the fee may be increased to such sum as the court, having regard to the length and difficulty of the case, may direct, but not exceeding seven guineas for a solicitor and £11 for counsel.Hon. Members may think that those are very substantial and adequate fees to pay for a matter which has special difficulties attached to it, but they will have read of the heavy fees that are frequently paid, in matters that require very much less work and attention, and certainly are not of equal difficulty with many of the cases which should, but very rarely do, go to appeal.
There is a lot to be said on this matter of appeals. I hope that the House will forgive me for dealing with it at some length, because in my view it is exceedingly important that it should be properly considered. Even when an appeal from a police court decision has reached the quarter sessions, the matter is not, from the point of view of objections, finished with. A bench of magistrates has considered the case and come to a certain conclusion. The court to which the appellant has to go is a court which sometimes consists of another set of lay magistrates. It is not always a recorder who sits, and when it goes to a set of lay magistrates, a strange position is created. You may have a man like Lord Justice Atkin sitting as a justice of the peace at the petty court. He gives a certain decision, and the appeal comes before a court of lay magistrates, who sit at the quarter sessions in order that the decision of the Lord Justice of Appeal should be examined and overruled by a decision of those six or seven gentlemen at the quarter sessions.
The case may have come from a stipendiary magistrate. How many hon. and learned Members have failed to notice the differences of outlook between recorders and stipendiaries? I am not talking about anything in the nature of a lack of desire to do justice, because most hon. Members would agree that practically the whole, if not the whole, of the magisterial benches, whatever their decisions may be, are anxious to do justice. Whether they have a proper outlook upon life to enable them to do it is another matter, but I think they are anxious to 1129 do justice, and most people will readily grant that that is so. Let me explain what happens. The case comes from a petty sessional court to the quarter sessions, and the recorder sitting at the quarter sessions makes a striking pronouncement on the case. He may say that the opinion of the lower court was absurd, or the view that they took was not in accordance with the view which should be held by reasonable and sensible people. A few days later, the petty sessional court, sitting upon some other case, may say that in their view the decision of the quarter sessions was wrong, and that whoever was presiding at the quarter sessions held views which were either absurd or were not acceptable to reasonable men.
It is common knowledge that that sort of thing occurs and, in the view of many who are concerned in these matters, a large number of cases ought to be sent direct from the petty sessional court to a higher court, either to a Recorder at the quarter sessions, or, where there is no Recorder, to the courts of assize, where there is a proper judicial expert who can give his views on points of law which are involved as well as upon points of fact, and whose views will, at a later stage, be acceptable because they are the views of a higher judicial authority. I know that some people would say that that is a difficult proposition, because of questions of expense or delay. At the present time, a case can be sent not merely to the court of assize in the immediate neighbourhood, but it may be sent to the next available assize court. This would deal fully and amply with any objection either in regard to expense or delay.
So much for some of the points that can be made on the question of appeals. When the Amendment is proceeded with we shall hear, I suppose, of more objections, but the question of appeals is by no means the only one that requires to be dealt with, as far as the courts of petty session are concerned. May I refer for a moment to a question which is very prevalent in the minds of a large number of people who are concerned about the liberty of the person in this country? We were told some years ago, by a novelist whose name is familiar to us, of the terrible conditions that prevail in debtors' prisons and of the terrible 1130 outrage of persons being sent to prison for debt. The Debtors Act was passed. To the average man in the street the Debtors Act put an end to imprisonment for debt, except in so far as a person who was in a position to pay and refused to do so was concerned. That position, unfortunately, does not prevail. On the contrary, a number of people are confined in prisons to-day who were not in a position to pay and who, at the time when the order was made against them, were not in a position to pay. The position of those people should be looked into and dealt with. In 1930 there were something like 12,497 persons sent to prison in default of payment of fines, and among them were 483 young persons under 21 years of age. There were 2,031 persons sent to prison because they did not pay their local rates. There were 6,778 sent to prison in default of payment of arrears of orders for the maintenance of wives and children or under bastardy orders. It may well be said, and there are people who may say it even here, in the same way that some magistrates say it in court, "Who is going to find this money? We must send these men to prison otherwise the ratepayers will have to pay. Who is going to support the wife?" Who supports the wife, and who pays the rates, if the man goes to prison? There are provisions in the Acts which regulate to some extent the grounds for sending a person to prison in respect of failure to pay these sums, but these are in many instances optional. I should like to draw attention to one case in particular which has come to my notice quite recently. A maintenance order was made in October, 1928. The person concerned made numerous applications to have the order reduced and was refused on every occasion, although there was no proof at all that his statement in respect of his means was an incorrect one. He was a street trader and he was not only unable to pay the sums due, but arrears were accumulating day by day and, as is almost invariably the case, the magistrates said they would not listen to the question of reduction of the amount until the arrears had been paid. That type of imprisonment for debt should certainly be dealt with as quickly as possible.
There are, of course, a very large number of other matters dealing with criminal 1131 and civil procedure. The London Chamber of Commerce, the Bar Council and the Law Society came to conclusions in respect of matters pertaining to civil procedure which would reduce the cost of legislation without affecting the net fees that are paid to lawyers and which the layman imagines are higher than they should be, but which have actually been found by the three bodies concerned not to be, by reducing the amount of time that is wasted in waiting for trial, by accepting documentary evidence without having to get the individual who wrote a letter, for example, to go into the witness box so that he may be cross-examined in the event of the letter having a smudge on it, by making it compulsory for correspondence to be agreed before the case is actually taken to trial, allowing the reservation that, if anyone disputes any part of the correspondence, he should be entitled to ask for witnesses to be produced on payment of costs, and other matters which would minimise the costs incurred. In those circumstances, and in the circumstances which have been related already by my hon. Friend, and which will no doubt be related with a considerable amount of force by anyone who has had experience of the handling of these matters in the course of practice or business, I think the Motion is a reasonable and a substantial one which should he accepted unanimously by the House.
§ 5.50 p.m.
§ Mr. SOMERVELL
I wish to make a few remarks with regard to the system of substantive law rather than procedure. Procedure has been referred to a committee appointed by the Lord Chancellor, and, important as it is, I do not propose to say anything about it. The Mover of the Motion referred to three or four very interesting examples of points which are admitted to be actual defects in our substantive law. He suggested that the present liability of a husband for his wife's torts was quite inconsistent with modern social ideas and also inconsistent with those ideas as they have been embodied by Parliament in the Married Women's Property Act. He referred to other anomalous features of our jurisprudence. Reference has also been made to the fact that there is no action for libel on a dead man. On these examples—and 1132 others could certainly be found—it will be agreed that legislation is desirable. They are not of overwhelming importance, perhaps, but they are things that ought to be righted. I want to ask the Solicitor-General whose business it is in the Government of the day to look out for and to deal with this sort of thing. We all know that legislation has very little chance in this House unless it has the backing of a Government Department. No doubt, we could all introduce private Members' Bills, but I should like to ask whether it really is anyone's business in the present structure of our Government and, if the answer is that it is not anyone's business, though no doubt the Lord Chancellor and the Law Officers do what they can from time to time, ought it not really to be someone's business?
The same consideration will apply to the broader question of codification and consolidation. At the end of the last century and the beginning of this, in the Bills of Exchange Act, the Sale of Goods Act and the Marine Insurance Act, extremely valuable pieces of codification were done. Is that going on? Is someone seeing that codification is proceeded with where it is desirable? Our law of libel and slander is highly technical, and I think it might well be codified. Certainly it is a branch of the law which it is desirable should be plain, simple and intelligible instead of, as it is, incredibly complex and full of technicalities. I am not suggesting that something of that kind has not been and is not going on now. The suggestion I make is whether in that matter, and in the other matter of anomalies in our substantive law, we do not want rather to improve our organisation. The Lord Chancellor's office and the Parliamentary Counsel's office are understaffed. The existing staff have quite as much to do as they can handle at present, but money spent on experts simplifying codifying and making more intelligible and more coherent our system of law would be well spent.
§ 5.56 p.m.
§ Major MILNER
The House is indebted to the hon. Member who is responsible for the Motion for the opportunity it gives to bring to the notice of the Government the great number of anomalies, hardships, injustices and difficulties to which attention has been drawn. I rise to reinforce all that has 1133 been said by the Mover and by the hon. Member who has just spoken in regard to the plea that they made for the codification and the modernisation of the law of the country. I should like to illustrate the necessity for that by dealing with the purely legal aspect of a case which has excited considerable interest in the last few days. It is the prosecution of Mr. Tom Mann and Mr. Llewellyn on Saturday last under two Acts of Parliament, one dated 1817 and the other dated 1360 or 1361. Mr. Mann and Mr. Llewellyn were, as I understand it, charged with being disturbers of the peace and inciters of persons to take part in mass demonstrations calculated to involve a contravention of the Seditious Meetings Act, 1817. I see that the magistrates, before announcing their decision, said there had been a certain misapprehension as to the nature of the proceedings. There was no criminal charge, and no question of imprisonment. The proceedings were to put in force a law which had been the law of the land from time immemorial for the preservation of public order. It was merely a preventive measure, and yet apparently there was a charge made under this Seditious Meetings Act.
That Act has some curious features which obviously have no application to the present day. In the first place, it is apparently provided in Section 23 that meetings of more than 50 persons within a mile of Westminster during the sitting of Parliament or of the Superior Court for the purpose or under the pretext of considering or preferring a petition, complaint, remonstrance, or an address to the King or either House of Parliament for alteration in matters of Church or State are deemed to be unlawful assemblies. In 1360, when that Act, was passed, both Parliament and the Courts sat here at Westminster. The Courts, as we all know, have now been removed to the Strand, and the curious situation therefore arises that, apparently, at any time a meeting of 50 or more persons may be held outside the Courts of Justice where they are now situated because it is more than a mile from Westminster. Similarly, as the Act provides that no such meetings may be held during the sitting of Parliament, it would appear that there is no objection 1134 to a meeting being held during the coming Recess within a mile of Westminster, and, indeed, a meeting may be held during the sitting of Parliament outside the Courts of Justice, although it was not originally intended. Apparently, the charge was brought under that Act.
I would say, in passing, that. I understand there is—in fact, I am sure—considerable doubt in the minds of lawyers as to whether under that Act any offence was, in fact, proved. As I have indicated, the Magistrate stated that the defendants were not charged before him with any offence, and the view of many with whom I have discussed the case is that it was not proved that the defendants did, in fact, disturb or incite other persons. Indeed, as I understand it, no connection in the legal sense was proved between those responsible apparently for calling meetings and Mr. Mann and Mr. Llewellyn.
§ The SOLICITOR-GENERAL. (Sir Boyd Merriman)
On a point of Order. Is it in order on this Motion to discuss the merits of this particular case? I say, frankly, that I am not prepared to deal with it in my reply. Notice has been given that this subject is to be dealt with to-morrow by the Home Secretary.
§ Mr. DEPUTY-SPEAKER (Captain Bourne)
I understood from the hon. and gallant Member that he wished to raise the point concerning the Act of Edward III as showing the necessity for the codification of the various Acts. That appears to me to be in order, but to go into the merits of this case is not in order, notice having been given that it is to be raised on the. Adjournment tomorrow.
§ Major MILNER
I am obliged to you, Captain Bourne. I appreciate the hon. and learned Gentleman's difficulty, and I will not deal with the merits of the case any further. As you said, the main object in calling attention to this matter was to deal with the Act of Edward III, and the Act of 1817. When I come to the Act of Edward III the absurdity of the vv-hole matter becomes more apparent than ever. I have taken the trouble to look up the Act which has been invoked on this occasion. It is written in Norman-French, and I imagine there are few, if any, Members of the House who can 1135 follow it. I have obtained, for greater accuracy, a translation of the Act, which was, apparently, the first Act of Parliament dealing in terms with justices of the peace some 570 years ago. It provides for justices of the peace, and their jurisdiction over offenders, rioters, barrators, and vagabonds. It says:That in every county of England shall be assigned for the keeping of the peace, one lord, and with him three or four of the most worthy in the county, with some learned in the law, and they shall have power to restrain the offenders, rioters, and all other barrators and to pursue, arrest, take, and chastise them according to their trespass or offence. … and to inquire of all those that have been pillors and robbers in the parts beyond the sea, and be now come again, and go wandering, and will not labour as they were wont in times past; and to take and arrest all those that they may find by indictment, or by suspicion, and to put them in prison; and to take of all them that be of good fame, where they shall be found, sufficient surety and mainprise of their good behaviour towards the King"—
§ Major MILNER
With all respect to my hon. and learned Friend, who has interrupted more than once during the course of these proceedings, I would point out that we are not proposing to abolish Recorders or Recorderships.
§ Major MILNER
With respect to the hon. and learned Member it is not obsolete, and the proceedings which were taken on Saturday last were based upon this Act of Parliament. This part of the Act as to the duty of justices which I was reading immediately before the hon. arid learned Gentleman interrupted me says:and to take of all them that be of good fame, where they shall be found, sufficient surety and mainprise of their good behaviour towards the King and his people, and the other duly to punish; to the intent that the people be not by such rioters or rebels troubled nor endamaged, nor the peace blemished, nor merchants nor other passing by the highways of the realm disturbed,etc. It was under that Act of Parliament and the Section which I have read to the House that the sureties were demanded without any offence being charged against the defendants or proved, and under which, on the question of refusing to be bound over, they were 1136 respectively sentenced to two months' imprisonment. Those illustrations indicate the necessity for the modernisation and codification of the law. It is true that it has remained for a National Government, apparently, to invoke those ancient Acts of Parliament. One would have thought that the ordinary law which exists, and which is put into operation in the ordinary courts nowadays, would have been sufficient. I support the Mover and Seconder of the Motion and express the hope that the hon. and learned Gentleman the Solicitor-General will convey to the Government the feeling of this House. I would like to go further than the Mover of the Motion and say that, not only should there be, at an early date, modernisation and codification of those laws, but that such laws as I have read to the House should be repealed, and should not remain on the Statute Book, so that hundreds of years after they have been passed, and in circumstances entirely different, they may be imposed by a Government who, for their own reasons and purposes, are desirous, apparently, of taking action to prevent ordinary and law-abiding citizens against whom no charge was proved and against whom—
§ Mr. DEPUTY-SPEAKER
The hon. and gallant Gentleman is now coming very close again to the merits of the case.
§ Major MILNER
I was rather led on. I hope that the Government will take note, not only of the facts and instances addressed to them by those who have preceded me, but also of the few remarks which I have ventured to address to the House on the subject.
§ 6.9 p.m.
§ Mr. MOREING
It is with considerable trepidation that I rise to address the House when I see so many hon. and learned Members around me. I could not forget while listening to the Debate that I started my career as an articled clerk in a solicitor's office. Though I no longer practise, I am still a solicitor of the Supreme Court of Judicature, and I believe that as such I am entitled by Act of Parliament to be addressed as a gentleman. Two of the points which I wish to make arise out of the remarks of the hon. Gentleman the Member for Flint (Mr. Llewellyn-Jones), who introduced the Motion. If I may, as a younger Member, 1137 I should like to extend congratulations to the hon. Member for Flint for his very able speech and exposition of the case for legal reform. There are three points which I want to put before the House. The first is the question of codification to which the hon. Gentleman, the Seconder of the Motion, and also my hon. and learned Friend the Member for Crewe (Mr. Somervell) attached considerable importance. I think that they are inclined to attach a little too much importance to the idea of codification. We know that there have been examples such as those quoted by my hon. and learned Friend the Member for Crewe of successful codification in such cases as the Bills of Exchange Acts, Sale of Goods Act, and, of course, the famous case of the Companies (Consolidation) Act, 1908. But those Statutes, although they gather together and codify a number of previous Statutes, do not actually gather together and codify the law of the land, or the law on the subject as governed by legal decisions arising out of previous Acts.
The hon. Member for Flint referred to the Italian Penal Code, and I rather gathered from his remarks the suggestion that we should have a code of a similar nature established in this country. I do not think that such a code would work very well in this country, because our mentality is rather different from that of Continental nations. Under their system things are put down very logically in black and white, but the system of legislation on legal matters in this country is along the lines of evolution and not of codification. Actually a code is only the starting point of fresh decisions, although it may be of advantage afterwards. You will not really simplify things very much if you have to refer to a number of previous decisions and Statutes as you do at the present moment. With regard to the question of costs in litigation as between a rich litigant and a poor litigant, I believe—I speak subject to correction—that under the code adopted on the basis of most Continental countries, the system is that both sides have to pay their own costs. Therefore, it is quite easy for a man to start a number of vexatious and frivolous actions merely for the purpose of ruining his opponent. Although we may have certain difficulties and anomalies in this country, things are no better, really, in Continental countries.
1138 Another point with which I wish to deal is the question of administering the law as it affects members of my branch of the profession and also members of the senior branch of the profession. I am getting on to very dangerous ground indeed, but one realises in going about that there is a sort of feeling that the relationship between the advocate who appears in court and the client is too remote. The system by which you must have, first of all, a solicitor who then briefs counsel, who appears in court, divorces the litigant to a large extent from the conduct of his case. In the county courts of this country, where the greater part of the legal work is done, solicitors have the right of audience. I am not suggesting that solicitors should have the right of audience in the High Court, but I suggest to the House and to anybody who takes an interest in legal reform that we might adopt some such system as is adopted on the North American continent, both in the Dominion of Canada and in the United States, where you have a firm to deal with the whole business from the start, where a man consults a solicitor, right up to the hearing of the case in court. It may be argued, no doubt, by my hon. Friends that the duties and responsibilities which rest upon the advocate are very different from the judicial responsibility which rests upon the legal adviser—the solicitor—in this country. If you adopted a system such as that which they have on the American continent, you would find that things would average themselves out. You would have your legal firm of Messrs. Brown, Smith & Robinson. Mr. "X" would come and consult them. Mr. Brown would be able to deal with questions of advice and guidance such as are now dealt with by the solicitor in this country, and Mr. Robinson or Mr. Smith would be the advocate who would appear in court.
§ Sir WILFRID SUGDEN
Does the hon. Member not know that in America the cost of litigation is six times what it is here?
§ Mr. MOREING
I am sorry that I am not well acquainted with the American legal system, but I will accept my hon. Friend's statement. I do not, however, think that it affects the point which I am making. I am putting this matter forward as a suggestion to the House. A 1139 further point which I want to make, and upon which I feel very strongly, is that we ought to have some regulation and amendment as regards coroners' courts. In Scotland when a person is found deceased the practice is that the coroner merely sits to establish the fact as to the cause of death, and to report that fact. In recent years in England an impression has sprung up under which coroners are inclined to regard themselves in some way as prosecuting magistrates. In the first place, a person is found dead. It may be an obvious case of suicide. A woman may be found dead in a flat, with her head in a gas oven. With due respect, it seems to me that all that the coroner has to do is to find that Mrs. X was found dead, and that the cause of death was gas poisoning. Any question as to why Mrs. X took her life or whether anybody else took her life, is not a matter for the coroner but for the police authorities. The system that has grown up by which the proceedings in coroners' courts are dragged out to tremendous lengths and reported at great length in the newspapers, is doing very serious harm to the country.
§ Mr. HOWARD GRITTEN
Is the hon. Member aware that these lengthened proceedings are not of recent origin? They were far longer in the time of the Bravo case.
§ Mr. MOREING
I am not familiar with the case to which the hon. and learned Member refers, but I do know that the proceedings in coroners' courts cause a great deal of suffering and injury to innocent people. Very often they are under suspicion and they are dealt with in a way that is not entirely fair to them. I hope that in any question of legal reform in this country we shall try to assimilate the practice of the coroners' courts in England to the system that prevails in Scotland.
§ Major MILNER
The hon. Member ought to qualify his statement by saying "some coroners," and not to leave the impression that he means all coroners. There are some coroners who bear this matter in mind, and confine themselves to the facts of the case.
§ Mr. MOREING
I, naturally, did not mean all coroners. I was simply uttering a warning to the House in regard to 1140 a practice that has sprung up in different parts of the country, and expressed a hope that the House will consider it.
§ Mr. LLEWELLYN-JONES
I would point out that I am coroner for the county that I represent in Parliament and have been coroner for 33 years. I am certain that no one could make the complaint that I deal with my court in the way suggested by the hon. Member for Preston (Mr. Moreing).
§ 6.19 p.m.
§ The SOLICITOR-GENERAL
I am certain that everyone is very grateful to the hon. Member for Flint (Mr. Llewellyn-Jones) for bringing forward the Motion. Speaking for myself, I should like to add my word of congratulation to him on the industry and skill with which he put forward the various points of great interest in his speech. In one sense, he has admitted that the Motion is academic, because he invites the House to say that it is desirable that steps should be taken to inquire into the judicial system, whereas he pointed out that he put down his Motion before the Lord Chancellor had appointed his committee. As I shall also point out later, there is another committee dealing with another of the important points which have been raised. But those facts do not in the least detract from the desirability of ventilating these matters or our indebtedness to the hon. Member.
There are two questions which the hon. Member addressed to me in regard to the committee and one matter with respect to which he expressed regret. He asked whether it will be within the competence of the committee to deal with appeals from the High Court; to deal with the machinery of appeal. About that I think there is no doubt whatever that it will be well within the terms of reference. The other question was whether it was intended to maintain intact—I am not quoting his exact words—the existing circuit system. The answer is that in the terms of reference it is made quite plain that, in its main principle, the circuit system is to be maintained, but within that principle it is obviously open to the Committee to inquire as to what reforms should be instituted, either in procedure, timesaving, or any other matters that may occur to them.
1141 The hon. Member expressed, in a sentence, his regret that there were no business men on the committee. That view has been expressed by other people, and I should like to say what I think is the answer. This is one of those cases where the engine, so to speak, is running hot, and we know that it is running hot. It is very much better in those circumstances—if I may adopt a metaphor which will appeal to the hon. and learned Member for Crewe (Mr. Somervell) instead of setting up a committee composed of passengers, or even of guards or of signalmen, that we should refer the matter entirely to the engineers to see how to deal with it. At any rate, that is the view that has been taken. But that does not in the least prevent full representation of the views of those who wish to bring one aspect or another before the committee. As the whole of the procedure in the High Court is now in the hands of the committee, I do not propose to say any more about that.
The next point, to which several hon. Members addressed themselves, notably the Mover and Seconder of the Motion and the hon. and gallant Member for South-East Leeds (Major Milner), is the question of the incomprehensibility of Statutes, owing to legislation by reference. I am not going to say one word on the merits of the particular instance which the hon. and gallant Member for South-East Leeds raised, because that is going to be dealt with to-morrow, but, in passing, I may say that I am not prepared to admit that because a Statute is old it is therefore either incomprehensible or bad. The Habeas Corpus Act lies somewhere half-way between the two Statutes to which the hon. and gallant Member referred. There are some Acts which, like some wine, become none the worse for being old and well-tried.
With regard to the question of legislation by reference, may I say a few words to the House of Commons itself? I suggest that as hon. Members we have the remedy for this matter in our own hands. The question of legislation by reference is not a matter for reproach to the administrators of the law or of the courts and the rest, but it is a reproach, if anything, to the law makers—to ourselves.
§ The SOLICITOR-GENERAL
Let me explain what I mean. This is not a question of the Government. We have to go further back than the Government of the day, and that is why I am addressing bon. Members sitting in all parts of the House. If we did what would no doubt be the best thing, namely, that when we are making considerable amendment of an existing law we should restate in the Bill the whole of the law, together with the Amendment, that would expose a very large frontage to attack, and it would invite a larger consumption of Parliamentary time. Manifestly, if you put into a Bill the whole of the old law and restate it, it is open to debate and amendment.
The reason why I say that this is a matter for us as Members of the House of Commons and for nobody else, not even for the Government, is that one of several things could happen. It would be quite possible to promote our legislation in what we all agree would be the ideal way. For example, we might say, voluntarily if not compulsorily, that there should he a sort of time limit with regard to each stage of a particular Bill and that within that anyone could discuss anything that he wanted, as is done under the Closure. Then there would be no difficulty created by exposing a larger frontage of print to attack. Similarly, we could, I suppose, if we chose, make it clear what part of a Bill was a mere restatement of the law and what part of it was new legislation and regulate our procedure so that no discussion was permitted on that which was merely a restatement of existing law, and confine ourselves to discussion of the new legislation. All that is a matter of detail; it is a matter for us. We, really, are the people who have the matter in our own control, and we are to blame for the defects of which hon. Members have complained.
§ Mr. JANNER
Would the Solicitor-General be prepared to make a statement to the effect that the Government will send more of these Acts for consolidation purposes to the Consolidating Committee?
§ The SOLICITOR-GENERAL
I am not prepared to give any particular undertaking, but I was going to deal with the question of codification and con- 1143 solidation in a few sentences. I entirely agree with the hon. Member for Preston (Mr. Moreing) that you do not solve all evils merely by codification, because, first of all, you have to make up your mind what you mean by codification. On the Continent some codes are really only a statement of general principles. They do not condescend to the details which we consider to be necessary. Take an extreme instance. It is. no use merely saying in an Act of Parliament, "Thou shalt not steal," without making it quite clear what it is you mean by stealing in its various aspects. Therefore, mere generalisation in a code is no use. If you are going to have very elaborate codes, let it be recognised that that is unquestionably the work of experts, and that it takes an enormous amount of time.
The hon. Member for Preston truly said that there have been very signal successes in codification, but there have also been very signal failures. The hon. Member who moved the Motion spoke of the codification of the criminal law. That was actually in process when the War broke out, and some very useful codes were passed, but when the thing was resumed after the War there was—I am not going into details—one very signal failure, and upon that the attempt to carry the codification of the criminal law any further broke down. I do, however, thoroughly agree that reform in one form or another is necessary either by passing your amending Bill, and the moment you have passed it, bringing in a consolidating Bill or, if possible, doing the two together. If the latter could be managed within some revised form of Parliamentary procedure, that would be the ideal thing. I am certain the Government will take note of the wish that has been expressed generally, that the fullest advantage should he taken of that particular procedure.
The hon. and learned Member for Crewe asked whose business it was to look after these matters in the realm of substantive law, I must utter this word of caution, with which I am sure he will agree. So far as substantive law is concerned, there is no difference between one sort of law and another. It is the law of the country, whether it is Common Law or whatever it may be. A 1144 great many of the particular instances which have been given are quite plainly within the realm of a particular department, and inasmuch as they come within the realm of a particular department, it is that department's business to bring in any legislation which experience shows to be necessary. For the rest, I will answer the hon. and learned Member by saying that in matters which do not actually concern a department the Lord Chancellor would consider that he was responsible for bringing them before the Cabinet and initiating reform. Having regard to the staff at his disposal, this may be a heavy task, but I think the Lord Chancellor would recognise that it was within his province.
Let me, in conclusion, deal with the point raised by the Amendment, but which has not yet been moved. It was referred to by other speakers; that is, the question of appeals from courts of summary jurisdiction. I entirely agree with very much that has been said about the technical difficulties which confront one who is appearing in a police court and wishes to know what are the rights of appeal in any particular case. I do not want to minimise the technicalities which, to a certain extent, are involved in that matter. Let me state two principles with which, I think, everyone will agree. The first is that neither by reason of poverty, nor by reason of the difficulty of understanding the technicalities, should any person convicted in a court of summary jurisdiction in a proper case be prevented from having his right of appeal. On the other hand, everyone will agree that it will be quite preposterous to open the floodgate to unrestricted appeals in trivial matters and in cases where, quite plainly, there is no real substance in the appeal.
The practical question is how to reconcile these two principles. I do not want to drag in yet another committee, but may I say that there is at this moment in being a committee which was appointed to deal with this very question. It is presided over by one who is in every way an ideal chairman for the purpose, a man of great experience and knowledge of the world, and among other people the hon. Member for Cambridge University (Sir J. Withers) is a member of the committee. No better committee could have been appointed. It is true that they 1145 have not yet held their first meeting, but it is also true that they have collected, and are collecting, a great deal of material from those versed in this particular question, largely from clerks to justices all over the country. I have seen some of this material myself, and I made it my business to see the chairman of the committee this morning to find out the state of affairs. He told me that the committee are going to meet sometime in the middle of January, and he is quite confident, with all this material before them, that no long time will elapse before they will be in a position to make their report. I do not think it is necessary for me to pursue that topic further, but may I say that the Home Secretary will await their report with interest and will give it the fullest consideration.
The hon. Member for Preston referred to the old subject of the fusion of both branches of the profession. That is a vexed question, and I will not deal with it at length. May I say with some practical experience, so far as my own personal career is concerned, and with some knowledge as to how the thing operates in North America, that I do not think fusion would achieve anything as far as this question is concerned. It must operate in one of two ways. Either the combined firm of barristers and solicitors will combine within themselves all the functions which any potential litigant may want, the best man on patents, on libel, or whatever the subject may be, or else, as is the case now where fusion is in working order, the firm not being satisfied that it has the best man for the job will brief the best man in another firm. In that case you simply get back to the present position. We say that any solicitor is entitled to go to the man who is supposed to be the best man for the particular job. I do not think it is through fusion that our difficulties will be solved.
§ Mr. MOREING
I only suggested fusion as a means of arriving at closer personal relations between a client and the advocate who appears. The Solicitor-General, with his vast experience, will know that many clients get fearfully terrified when learned counsel appears in court, and they think they are only to be approached with considerable hesitation and trepidation.
§ The SOLICITOR-GENERAL
There may be something in that, but I do not think it is a remedy for the position. In practical experience I have seen the solicitor-advocate in operation, and he has often 110 more contact with the litigant until the moment he appears in court than has counsel. All advocates know that there is a good deal to be said for being able to present a case with a certain amount of detachment. Anyhow, I will not pursue the topic. I have not pretended to deal with all the points which have been raised during the Debate. The Government welcome this discussion and thank the hon. Member for bringing forward this Motion.
§ 6.40 p.m.
§ Mr. LYONS
Hon. Members who are associated with me in the Amendment which is on the Order Paper—in line 3, at the end, to add the words,particularly having regard to the present unsatisfactory position of the law in relation to appeals from courts of summary jurisdiction.are grateful to the Solicitor-General for the contribution he has just made to the Debate. We thought that the Motion in its present form was too academic and, therefore, we put down what we thought was a concrete and specific matter to which the attention of the House might properly be directed. We are grateful for the opportunity afforded for a ventilation of these matters. I was glad to hear the references made by the Solicitor-General to the benefits derived from the Habeas Corpus Act, and I hope that the same considerations will be present in his mind after the Recess when the Government reintroduces, if they do, the Bill known as the Visiting Forces (British Commonwealth) Bill, about which so much was said a few weeks ago and on which some hon. and learned Friends of mine insistently had to intervene during the observations of the Solicitor-General. I hope he will bear that in mind when we discuss the matter again.
A good deal might have been said as to the concrete proposals for an alteration of the present system. I wish something had been said about the drastic 'alteration of coroners' courts, and also on the question of the transfer to county courts of some matters which are now dealt with by courts of summary jurisdiction. There seems to be no longer 1147 any need for applications under the Bastardy Acts to go to the police court; they may be much better treated in the county court. These matters have not been mentioned. The Motion is a little vague. It asks for inquiries to be instituted, whereas two important committees are already functioning. I must disassociate myself from the statement made by the hon. and learned Member for Flint (Mr. Llewellyn-Jones) that our system is effete, wasteful and cumbersome. The hon. Member, and certainly the seconder of the Motion, seemed to have their eyes upon a certain anonymous book published by an obvious egotist in the course of the last few months, because they have fallen into some of the mistakes into which he falls in his criticism. We desire to criticise the present method of appeal from courts of summary jurisdiction, but it is difficult to base our criticism on some of the observations that have been made in support of the Motion. We realise that a committee is at present working to come to a decision on a simple but somewhat vexed problem.
The position does not altogether derive its importance from the number of cases dealt with by the justices, although they may run into hundreds of thousands of cases in the course of a year. The last thing we want to do is to clog the machinery of the law with appeals of no importance which would arise if there was complete freedom to appeal in all cases. Many of the cases are trivial and have no bearing at all on the future or status of the individual concerned. We think that in some of the more serious matters which result in a conviction, it is archaic to allow the justices to have an arbitrary discretion to fix recognisances which may operate to debar the convicted man of the right of appeal which the law gives him. This may often happen with a lay Bench.
I wish the Seconder of the Motion had had in mind that it is open now for any accused person in any serious offence to get free legal aid from the State. The Poor Prisoners' Defence Act of 1930 extends widely the advantages of poor prisoners' defence. I think it is entirely out of accord With the spirit of that Act to allow these barriers to remain, to allow the Bench who have convicted to have an absolute discretion in fixing a barrier 1148 which denies to the convicted man the right of appeal in what may be to him a matter of life and death. There are many of these cases. We certainly do not suggest that there should be a free appeal to everybody convicted on summary evidence before the justices. There must be a distinction drawn between cases the conviction for which is a serious matter, something which may tend to incapacitate a man for the rest of his life, and convictions for something which is of a trivial nature.
As one desiring to offer some help in the matter I suggest that it might very well be that a short enabling Measure could be introduced for giving to someone, say a Recorder or even one of His Majesty's Judges, the right in any particular case to say "We dispense in this case with the need for surety altogether." Whether the justices have taken notes or not is a question that does not arise, because these appeals are not appeals strictly but are in the nature of re-hearings; the case is started afresh at the time of re-hearing and the question of notes does not arise.
I have not the slightest doubt, after what was said by the learned Solicitor-General, that every one of these matters will have the full consideration of the committee that is now dealing with this problem. I hope that the committee will not confine itself to evidence from justices' clerks. After some experience I say that the last man in the world to give any opinion at all upon any alteration that may be necessary in the law and procedure of the police court may be a present-day clerk to the magistrates. In many cases it happens that he is not a full-time clerk, and that he is far more concerned with carrying on his ordinary practice. He often leaves the work of the police court to an unqualified man. I wish that the Seconder of the Motion had dealt with another very important aspect which will have to be tackled sooner or later, and that is the complete lack of uniformity between one court of summary jurisdiction and another. There are some where the clerk is complete master of the position. There are others where he is kept out of all consideration. He is not present at the bench's retirement and does not know what the decision is until the bench are back, having probably misapplied their minds to a good many irrelevant topics. 1149 Obvious mistakes are made from time to time. We believe in our criminal system. Whatever imperfections it may have it stands pre-eminent in the justice of the world. But we also want to see that justice seems to be done as well as is done.
§ 6.52 p.m.
§ Mr. THORP
Before coming here this afternoon I looked up "Annual Practice," which is a work of reference used by us all in both branches of the profession. To some extent it corresponds to the Code of Procedure used on the Continent. I noticed that it is a book of 3,600 closely-printed pages, and that it includes over 12,000 reported decisions. Therefore, if anyone" wants to know what our code of procedure is he would apparently have to study a book of that kind. It is an extremely severe commentary on our procedure that it should require such a book to tell us, not what the law is, but how to set the law in operation. In those circumstances, I congratulate the' Government sincerely on having appointed a committee to go into the whole question. But I would offer one or two suggestions. One is that I think the Government would have been wise if they had put on to that committee an old and experienced managing clerk who had had experience of how these things are done long before they come into the hands of counsel, and sometimes long before they come into the hands of solicitors. Many of these managing clerks can just touch the "Annual Practice" with one thumb and open it at the right place, whereas some of us who have been at the Bar for many years take the whole morning to find a reference. That very able and very experienced body of men who have knowledge of the practice and working of the courts should not be ignored by this committee.
There is one other aspect of the Motion to which I would refer. Everyone regrets the delay that there is in cases coming on for trial, and I have no doubt that that is one of the points that will be considered by the committee. I admit that the new procedure in the courts is working very well, and that cases are coming on very much more quickly under the new procedure than they would otherwise have done; but the fact remains that the result of putting 1150 two of His Majesty's Judges to deal with cases that are under the new procedure is that a lot of people who have had cases down for 12 months are being delayed because there are two judges who would otherwise have been available to work on the ordinary list and who are now dealing with cases which commenced only a few weeks ago. It means that the person who was diligent in pursuing his rights in bringing his action perhaps 18 months since is kept waiting for someone who may have begun his action only about three weeks ago.
I would be glad if the committee that has been appointed were asked to take into consideration how this suggestion works: I suggest that there should be appointed two additional judges, and that there should not be any cases for trial put into the daily list of those two judges. These two judges would be available to try cases sent from other courts which have a heavy list of litigation, with the result that many witnesses and jurymen have been kept waiting, it may be for one, two, three or four days. One case in which I was personally engaged was in the list for a whole week, and was never reached. If there were available two judges without any daily list such cases could be promptly called on; the parties could go before one of the judges without the list. An alternative suggestion is that before appointing an additional judge a point might be made of giving one of the present judges no cases in his list at all, so that he can be available for the transfer of cases to his court.
The answer that will no doubt be made is that this plan would be expensive. But even if one of these two judges did not have any case sent to him for one, two or three days a week, there is the advantage that jurymen and witnesses and experts need not be kept waiting, and if the balance were worked out in actual cost to the public it would mean that there would be less waste of time. There might he 20 or 30 jurymen concerned. There might be half-a-dozen expert witnesses, and the solicitors and their clerks, all hanging about the courts until late in the afternoon lest a case should come on for trial. If all those expenses were added up, I am sure that at the end of the year it would be found that the public had effected a real saving. The Government might be tempted to try that experiment with one of the present judges, 1151 and work out some figures so as to see whether it was a profitable line to follow.
With regard to the Amendment on the Order Paper, I suggest that it should not be in the power of a court which has given a decision with which a person is dissatisfied practically to refuse him leave to appeal. A short enabling Statute should be passed limiting the amount of the surety that has to be provided. It could limit it to £20 or £40. In certain special circumstances that amount might be increased. But refusal to fix the amount or failure to fix it at only a small figure might be the subject of appeal, as bail is the subject of appeal. It would not take a judge in chambers 10 minutes to make up his mind and to say that in a case there should be an appeal with normal surety; or he might say that the appeal would cost a lot. In the circumstances, I submit that it is rather illogical that a man should have the right of appeal and then fix an amount which cannot possibly be found.
§ Mr. SPEAKER
Do I understand that the hon. Member for Leicester (Mr. Lyons) did not move his Amendment?
§ Mr. LYONS
It occurred to me, after consultation, that in view of what the Solicitor-General had said, and to which we listened with gratitude, the Government were giving full consideration to this matter and, therefore, I did not move the Amendment. Of course, if you desire that the matter should be properly on record, and that I ought to have moved the Amendment, I will do so.
§ 7.2 p.m.
§ Mr. LOVAT-FRASER
There are just one or two remarks I would like to make, particularly regarding what was said by the Mover and Seconder of this Motion. The proposer expressed the hope that in any future improvement of the law Wales might be treated as a separate entity. Although I do not happen to be a Welshman, I have been for many years a member of the South Wales circuit and, therefore, I can speak with some authority on the matter. I am not aware of any desire of Wales, or of the Welsh people, to be treated as a separate entity. I can imagine that there are serious objections to that course. Courts of 1152 Great Sessions at one time administered justice in Wales. They were abolished about 100 years ago, and I never heard that the Welsh people raised any outcry, nor do I believe that the Welsh people were put to a disadvantage by the substitution of the English circuit system. The hon. Member who seconded the Motion expressed his dissatisfaction with the assize system, but he did not give us any reasons for his dissatisfaction nor did he go on to suggest remedies.
§ Mr. LOVAT-FRASER
The hon. Member did say there was great dissatisfaction, but he did not give any reasons for that dissatisfaction, nor did he say how we, proposed to deal with difficulties. Of course, if the system does not provide justice, it should be altered. I would only say that there would be the very strongest objection in the older assize towns in England if the assizes were abolished. If it were suggested to a London man that the assizes should be taken from London to Newport, you would, of course, arouse protest. I would say that the provinces are very much wedded to the assize system and would regret if it were abolished.
§ Mr. LOVAT-FRASER
With what the hon. Member said about courts of summary jurisdiction I am in entire agreement. I have long been convinced that the only way to deal with courts of summary jurisdiction is to abolish them, and the "great unpaid." I have not for many years had any sympathy with them. In a great many cases the work is carried on with great incompetence. I know that the time is not yet come when it is any use advocating the abolition of these courts, but I hope the time will come at no distant date when people will be put under a reorganised system of courts of summary jurisdiction and have properly trained lawyers to administer justice in criminal and other cases. I am especially dissatisfied where children are concerned. An immense amount of mischief and harm is done by ignorant justices in dealing with children. Recommendations have been made from time to time by the Home Office as to the proper methods of dealing with children, and 1153 these have been disregarded and ignored. I would gladly welcome the day when children are taken out of the control of the "great unpaid."
The Seconder spoke of great discomfort in the police courts. I think a great deal of the discomfort and unhappiness people suffer is due to the fact that, in a good many cases, they do not intend to tell the truth. There is nothing to produce nervousness like the knowledge that you are going to try to help one side, or keep back a part of the truth. If witnesses went to the police courts to tell the truth, and the whole truth as they swear to do, there would be a great deal less embarrassment and nervousness. I do not know if the Seconder still practises in the law. If he does, and if he told witnesses, when he finds them unduly nervous, that they need not be nervous if they are telling the truth, I think great benefit would result. It has been stated in the Debate that it is not possible to bring an action for defaming a dead man. The Proposer made that statement. I think if he looks up Archibald's Criminal Pleas, he will find it possible in some cases.
§ Mr. LLEWELLYN-JONES
What I said was that it was not actionable. The hon. Member is referring to the possibility of criminal libel if there is likely to be a breach of the peace. This is of no value so far as the family of the deceased persons are concerned.
§ Mr. LOVAT-FRASER
I will not argue the matter, for that is a minor pint. One other matter which has been referred to during the discussion is the Statute of Edward III. The fact that it is put into operation, and has not been repealed, shows its excellence. That famous Statute has been most valuable and has contributed to the freedom and liberty of the subject, and I would not allow the statement to pass that it is out of date and mischievous.
§ Question put, and agreed to.
That, in the opinion of this House, it is desirable that steps be taken to inquire into the defects in the system of law and legal procedure in England and Wales and into the measures for removing these defects.