§ Order for Second Reading read.
§ 9.41 p.m.
§ The ATTORNEY - GENERAL (Sir Thomas Inskip)
I beg to move, "That the Bill be now read a Second time."
The Bill comes to this House from another place where it has received exhaustive examination, and the publicity which has attended the proposals contained in the Bill to a large extent relieves me from the necessity of entering into any detailed exposition of its proposals. The Bill contains a number of unrelated proposals, the one connection between the different proposals being that they are all with one exception in the nature of reforms recommended by the Committee which was appointed in 1932 to consider the state of business in the Supreme Court and to recommend whether greater expedition in the dispatch of business or greater economy could be effected. The Committee was presided 1600 over by the present Master of the Rolls, Lord Hanworth, and the Committee showed a great deal of expedition, because, although only appointed at the end of 1932, it presented an interim report in March of the present year.
The House will notice that I describe it as an interim report. Lord Hanworth's Committee is still sitting. It is engaged in investigating other proposed reforms in the administration of justice, and, no doubt, the House will have submitted to it on some future occasion, not in the far distance, I hope, other proposals to effect the more speedy administration of jus-tide and to produce greater economy. The report was unanimous. The Committee has had, as one might expect, the assistance of many experts in the many matters which came before the consideration of the Committee, and, as far as I can form any opinion about the verdict of the public, the proposals of the Committee have met with a very large measure of approval. I will not say "with unanimous approval," because one or two of the proposals about which I 1601 shall have to say a few words are controversial in their nature and are likely to divide opinion to some extent. But even on the more controversial proposals contained in the Bill, my impression is that, both within and without the legal profession, approval is given to these proposals.
It will probably meet with the convenience of the House if I take the five topics which are dealt with by the Bill, and say shortly, and with as little use of technical language as I can, what the proposals are. A proposal which has greatly interested the profession and the public is the proposal that grand juries shall be abolished. Clause 1 contains the bald and somewhat dramatic statement that "Grand juries are hereby abolished." I have a feeling of real regret, I might almost say of sadness, that so great and historical an institution as that of the grand jury should be abolished. Nobody knows where the spring of the grand jury is to be found in English history. It certainly goes back some V00 years or more. Some people think that it is to be traced back to an institution existing even in pre-Norman times, and it is rather a sad reflection to think that in this year of grace we are finally proposing to part with an institution that has played so great a part in the development of our liberties as the grand jury, an institution which probably is very nearly a thousand years old.
But we all recognise that in this practical age we cannot afford to pay too high a price for sentiment, and I hope that I shall be found in agreement with the opinion of hon. Members if I say that I think the right conclusion is that grand juries are not serving any really useful purpose and are at the same time very expensive and very troublesome to a large number of people, and that we ought to be prepared to abolish them. I think I can satisfy the House that, although they do serve a useful purpose from one point of view, in the total sum of all the considerations that occur to one they may be said to be almost a superfluity in the administration of justice. Less than one per cent. of the cases that come before them are cases in which the Bill is thrown out, and for the purpose of bringing about that almost negligible result more than 22,000 persons are summoned in each year to attend as grand 1602 jurymen. In 1931 some 22,272 persons received summonses to attend the grand jury. Probably the cost of the administration of criminal justice is as to one-third of the total cost due to the summoning of grand juries. As everybody knows who is acquainted with the system, witnesses are required to attend on the first day of the Assize or, in the case of London, the first day of the Session at the Old Bailey. Some witnesses, not all of them, are heard by the grand jury in sufficient number to enable the grand jury to form an opinion whether there is a prima facie case against the prisoner. Very often when the Assizes or the Sessions are lengthy the witnesses have to wait in the town or city to which they are summoned, or they have to go away and come back at great expense and inconvenience. Therefore, both on the score of inconvenience to those who are summoned—and no doubt in many cases it is inconvenient—and on the score of expense, grand juries may be said to be in some danger; and when one reflects that all this expense and inconvenience only result in less than 1 per cent. of the total cases submitted to them being cases in which it is found that there is no prima facie case against the prisoner warranting a trial, I think one may fairly come to the conclusion that, historic as the institution is, it is not one which in these days we can really justify.
It must be remembered that when a Bill is thrown out by a grand jury it does not mean that the prisoner is relieved of the necessity of preparing his defence. He has by that time incurred all the expense, if he proposes to incur any, and is able to incur any, of preparing his defence, summoning his witnesses and instructing his solicitor or counsel to defend him. It is true that he is saved the ignominy and publicity of trial before a petty jury if the Bill is thrown out, but that is the only advantage which in the great majority of cases results if the Bill is thrown out. Reluctantly, and without any doubt as to whether the decision is the right one or not, I ask the House to accept the proposal embodied in Clauses 1 and 2 of the Bill.
Clause 2 merely provides the procedure which is necessary in order to take the place of the grand jury. Obviously, there must be some machinery to provide for a bill of indictment 1603 coming before the petty jury in due form and due course. I will not trouble the House with the details of Clause 2, which are somewhat technical. They are due to the fact that, as all lawyers in the House remember, it is open for anybody to prefer what is called a Voluntary bill, so that if it becomes an indictment it may be tried by a jury without the necesity of obtaining a committal by a magistrate. That is subject to that which lawyers know all about in the Vexatious Indictments Act, and I will not trouble the House with the technical details. Suffice it that Clause 2 is merely necessary because we must have some procedure to take the place of the present procedure in connection with grand juries
Clause 6 deals with amendment of the procedure as to trials by jury. That has nothing to do with the grand jury. We are accustomed to hear the jury spoken of as the palladium of British liberty. Again, it is a great historic institution. There is no proposal to restrict the right of trial by jury or the necessity of trial by jury in criminal cases, on indictment, nor is there any attempt or proposal to restrict the right of trial by jury in cases of libel, slander, malicious prosecution, false imprisonment, seduction, breach of promise of marriage, or in cases where there is a charge of fraud against either party. It is proposed that in all other cases a party shall only have a jury if he can persuade the judge that it is a case that ought to be tried by a jury. Perhaps I have not put it quite accurately. There is no suggestion that either party must discharge what we call the onus of satisfying the judge that his case must be tried with or without a jury. What we ask the House to enact is that the judge shall have a discretion as to whether the case shall be tried with or without a jury, except in those cases which I have mentioned and in which the party will have the right to demand a jury if he so desires. The reason for giving the judge a discretion to order a case to be tried with or without a jury is that a large number of cases which are tried with juries could just as well be tried by a judge alone. It must not be supposed that we are without some experience on that point. The great majority of running down cases 1604 due to accidents in the streets which are tried in the county courts are tried without a jury and the decision of the county court judge gives complete satisfaction, I will not say to the party who loses the case, but, broadly speaking, to the parties engaged in the case. There is no reason for believing that a judge of the High Court will not, in the great majority of cases, give just as much satisfaction, and discharge his duties with as much efficiency as the county court judge, in running down cases about accidents in the streets. There are a great number of other cases in which juries are summoned which could just as conveniently and much more quickly and cheaply be tried by a judge alone; and what we are proposing is that in these cases it shall be left to the judge to say whether or not a jury shall be summoned to try the case.
Complaints have been made from time to time as to the cost of litigation. This proposal will in many cases materially reduce the costs of trials. It will undoubtedly result in shortening the time which cases take; you can try a case much more quickly before a judge alone than you can with a jury, and the proposal is, therefore, in the interests of all litigants, whose cases may in future be tried before a judge alone, if he so orders. In another place the original proposal was that this discretion should apply even to cases where a charge of fraud was involved, but by a suitable Amendment that Clause has been altered so that in cases of fraud the person concerned will have the right to trial by jury. I think the House will agree that this is an improvement, and if it accepts it as a workable Clause I think it will be acceptable in practice to litigants.
The next group of Clauses to which I will refer are those which deal with matters connected with litigation in which the Crown is involved. Clause 3 provides for determining by summary and cheap process the question of liability as to Death Duties. There are cases in which there is no dispute as to the facts or as to the amount of the duty, or anything of that sort; the sole question is as to the construction of a particular Section in an Act of Parliament. In those cases it is desirable to provide a cheap and summary method of obtaining a decision of the court, so that if the 1605 subject is liable at all he may discharge his liability by immediate payment, the only question being the construction of a document or an Act of Parliament. Clause 4 provides certain alternative ways in which the Crown may enforce payment. As everyone knows, the Crown at present is obliged to litigate by using forms of procedure which are not generally familiar to the ordinary practitioner, still less to the public, although those who use these forms are in no difficulty in using them, and I think they really work as cheaply and as conveniently as the forms which ordinary litigants are obliged to use. At any rate, there has been a sense of grievance that there is some mystery about the forms in Crown proceedings, and this Bill, in Clause 4, provides that the ordinary methods, and the ordinary forms, may be used by the Crown in cases in which at present the Crown has to resort to process by way of Information, be it Latin or English Information. The details are somewhat technical, and if any Member has any Amendment to suggest, the matter can be dealt with more conveniently in Committee.
Clause 7 effects a change in the law which has long been desired by the public. It permits the court to order costs to be paid by or to the Crown in accordance with the ordinary practice applying to litigation between subject and subject. There have been many inroads on the old. rule which is that the Crown neither pays nor receives costs. It certainly is not quite as complete as it once was. The House will agree with the Government in thinking that the time has come to abolish whatever is left of the old rule and provide that the Crown shall pay when it loses, and be paid costs when it wins.
Clause 5 does not deal with Crown litigation, but with some of those forms and processes which most people regard with awe, unless they are members of the legal profession. They are writs which we call prerogative writs, mandamus, and certiorari, and prohibition; by which excesses of jurisdiction committed by inferior courts are restrained; they are the processes by which a Government Department is kept within due limits. The present system requires an application to be made in open court, before a court composed of 1606 two or more learned judges; it is generally called obtaining a rule nisi. After the rule is obtained in the absence of the person against whom the rule is sought to be made, the whole thing begins again. It is thought that it will be enough in future to have one bite at the cherry. A person who desires to move for a writ of prohibition, certiorari or mandamus will have to obtain leave to do so from a judge, probably in chambers, in accordance with rules to be made, and the matter will then be dealt with at one hearing in the ordinary way.
That leaves me with only one other Clause—Clause 8. This provides that, for the purpose of facilitating certain business of the Masters in Lunacy, the Lord Chancellor may delegate to certain qualified persons duties which at present can only be performed by the Master in Lunacy. It is the proposal advanced by Lord Hanworth's Committee, and I imagine that nobody in the House will disagree with it, because it is a proposal to expedite business in lunacy.
That is, shortly and with as little technicality as I find necessary, the Bill which I have now to ask the House to accept. I may remind the House that one proposal made by Lord Hanworth's Committee has been carried into effect without the necessity for legislation; that is the proposal to shorten the Long Vacation. The Long Vacation has often been discussed; it is at any rate to be shortened for one year, and the necessary-steps have been taken to that effect.
These other reforms which I have mentioned are some of the reforms required or proposed by Lord Hanworth's Committee. The alteration of the right to trial by jury, which I mentioned secondly in my observations, might have been effected by rule—a rule, that is to say, made by the Rules Committee subject to the necessary formalities. But it was thought desirable, as it concerned a matter in which the public is so largely interested, that it should be effected by legislation rather than by rule. I hope that the House will think that the Government have adopted the right course in putting it into the Bill so that hon. Members cam give expression to their opinion about it.
But I might say this in conclusion. As with all legal reforms, you will find 1607 some people who prefer the old. But we must be prepared— and I speak especially as a lawyer at this moment—to consider that for once the new is better. As lawyers, we naturally like to cling to precedent. Our whole English system is based on the rule of precedent, and we naturally think that the forms which we have been accustomed to use, the law under which we have been accustomed to practise, are worth preserving. Nevertheless, in these matters with which this Bill deals the public have long looked for some change, and I think that they will agree with the Government in putting these proposals before the House. I hope that the House will be prepared to give its approval to the Bill, so that it may be possible finally to enact it with a view to putting these reforms into operation in the next sittings of the courts.
§ 10.10 p.m.
§ Sir STAFFORD CRIPPS
We shall certainly not oppose the Second Reading of this Bill. I never thought that I should see the right hon. and learned Gentleman standing up at that Box pulling down the so-called ancient safeguards of the Constitution. But we have witnessed that refreshing sight this evening, and it will, I hope, inspire us to better efforts ourselves at some future date. So far as the grand jury system is concerned, we entirely agree with the view which the right hon. and learned Gentleman has put forward: that this archaic procedure has ceased to have any reality in modern days, and that the extent and inconvenience which are attached to it are not justified by its usefulness. As regards the question of the Crown procedure, I am sure that everybody will welcome an assimilation of that procedure to the more ordinary forms which are known in the courts. The difficulties of English and Latin information are quite sufficient, even to some practitioners, and the form of interrogatories which can be administered under them has often led litigants to be overcome with fear. Now that the ordinary procedure has to be adopted and the ordinary rule of costs is to be applied, litigants will feel that they are more on an equality with the Crown when they come against it in litigation.
But the major matter with which this Bill deals is probably that contained 1608 in Clause 6, the abolition of juries in certain types of cases. The common jury is a very valuable asset to the common man. There is a certain sympathetic humanity about a jury, which does not always exist so far as all learned judges are concerned. Though we quite agree that there are a number of cases in which it is probably not necessary to have juries, I personally take the view—and I think it is shared by a great many other people—that there is a type of case which is not included in the reservation of this Clause and which perhaps the right hon. and learned Gentleman would consider carefully before the Bill goes further. I am speaking of the cases where the character of one or other of the parties comes into issue. It may be that a man is dismissed because of some reason given accusing him of some deed which is dishonourable or of which he would not care to be found guilty. Such a case would be just as serious for that man as would be a case of fraud, or of breach or promise of marriage, or of libel or slander. In fact, it might well be that the defence in such a case would raise almost precisely the same issue as would be raised in a libel or slander case. The defence in itself would be a libel, which would be tried on the issue raised.
In such a case as that it seems to me that a person should, if he so desires, be entitled to the protection of a jury just as much as in some of the cases mentioned here, and indeed more. Cases like breach of promise of marriage, for instance, are not cases to be encouraged in any way at all. I do not know whether the right hon. and learned Gentleman could possibly devise words which might be added to paragraph (a) or (b), or whether he could expand paragraph (a) to cover such a case as I have in mind. I think he will agree with me that, from the point of view of the person whose character comes into issue, such a case is just as serious a matter as any of those mentioned here. In fact, it may be a far more serious matter than a mere question of fraud. With that reservation, and the possibility that the right hon. and learned Gentleman may introduce words to cover it, we are on the whole glad that this Bill has been brought forward, and we hope that it may assist in removing some of the delays which are still rife in the courts.
1609 Perhaps, if the learned Solicitor-General is going to say anything on that matter, he could give us a little information on what the position is as regards delays in the courts. At the present moment one hears from time to time rather disturbing rumours concerning the condition of jury actions. I am not really conversant with that subject myself, but I come across people who are. On many occasions recently I have been told that actions have had to be settled because they have been so long in the list that the parties have thought it was better to settle them than to risk their hanging on and hanging on indefinitely. Whether this Bill is likely to produce any cure for that situation, I should have thought was extremely doubtful. If it is not, perhaps the learned Gentleman will tell us whether any other steps are likely to be taken in order to expedite the hearing of that class of action.
§ 10.15 p.m.
§ Sir WALTER GREAVES-LORD
I rise for the purpose of supporting the Bill. With regard to the question of the grand juries, there is now no very strong demand for their retention. This has been a subject of very acute controversy, and at one time I held a very strong view upon it, but the more one sees of the administration of the criminal law the more one is impressed by this position—that a grand jury seldom interferes with a bill of indictment at the present time unless directly instructed to do so by the presiding judge. The result is that the throwing out of a bill is simply an anticipation of what the judge would do if he had to try the case. One result of this Measure in regard to grand juries is, I think, not without value. During the War the presiding judge had cast upon him a duty which was equivalent to that of a grand jury of deciding whether a bill of indictment should be preferred or not. Now, it is provided that if a man or woman has been committed for trial or the leave of the judge has been obtained to present an indictment, the matter has to come before an ordinary jury.
In many respects that is an advantage. There is not the same necessity for the intervening authority of the grand jury because of the great care with which as a rule cases are dealt with by those who commit them for trial. But if it should 1610 be necessary to exercise the power of practically withdrawing a case from the jury or directing the jury so to deal with it that the accused is acquitted, because there is no case against him—which is the position now when a bill is thrown out—it is surely better that that should not be done, merely on the initiative of the judge directing a grand jury who act in secret and without evidence put before them openly in court, or by the direction of an individual. It is far better that the man who has been improperly committed should get, as he will get under the practice to be initiated by this Measure, the definite verdict of a jury that he is entitled to acquittal of the offence with which he has been charged. That has been a great difficulty in the position of defendants in matters of this sort. It has been necessary in some cases to say to the grand jury, "Here is a case in which you must consider very carefully whether you will prefer an indictment or not." If the grand jury throw out the Bill there is no report of the matter. Very often these cases escape attention altogether, whereas the man who has been improperly committed for trial has probably had to suffer the publicity of prolonged reports of the case in the newspapers in its earlier stages. That publicity may have damaged his reputation but nothing like the same publicity is given to the fact that the grand jury has thrown out the bill. If the case opened before an ordinary jury and the judge asked prosecuting counsel whether he could sustain a conviction upon the evidence which he had opened, the matter would be argued out in court and it could be made clear with full publicity that the man was entitled to acquittal if he was so entitled. He would thus get that clearing of his character which is an essential part of our criminal jurisdiction. The more publicity given to it the more valuable it is. That would be in some respects an improvement in the administration of our Criminal law.
On the question of juries there is an acute division of opinion, but there is one matter in regard to which I would thank the Government. The Bar Council considered this subject and there was one point on which they felt strongly, namely, that it ought to be dealt with by Act of Parliament and not by Rule. We all recognised that it was possible to make this change by Rule, in which case there 1611 could not have been the discussion that there is upon this Bill, and we are very thankful indeed to the Government that they have proceeded by Bill instead. But I cannot disguise that there are very strong feelings both ways in regard to this matter, and, therefore, in what I am saying I am expressing my own individual opinion, and I cannot claim to be expressing the views except of a number of the members of the Bar Council, because a number think the other way. My own view is that this is a provision which will work well and ought to be supported. Mention has been made of the question of expense. I think everyone will agree that if it were a question of doing any hardship or in any way reducing the efficiency of the administration of justice, the question of expense would be a matter not worthy of consideration, but one has to face this position, that at the present time you have a very large number of cases— particularly, as the right hon. Gentleman the Attorney-General has said, running-down cases—which are tried by jury but which might very well be tried by a judge alone, with equally satisfactory results.
It is said that if you get damages assessed by a judge alone, you will get very wide variations, because a judge is only one individual, and in a jury you have the combined views of 12 ordinary citizens. It may work a certain amount of inequality, but everybody who is conversant with that particular class of case, knows that from time to time there are verdicts of juries in regard to damages which are really oppressive and wrong, sometimes from the point of view of meanness, more often from the point of view that the damages are much too large. Under our present system it is practically impossible to set right matters of that kind where the action is tried before a jury, because the difficulty of getting the court to interfere in a wrong assessment of damages where the matter has been tried by a jury is very great indeed. The principle upon which the court acts in dealing with a jury's verdict is that if there is any evidence to support that verdict, or, on a question of damages, unless it is so unreasonable that no 12 men could have arrived at it, the Court of Appeal will not interfere, whereas in the case of an appeal from the decision of a judge alone, it is very much easier 1612 to get the Court of Appeal to revise and reconsider the general position.
I cannot help thinking that, on the whole, this provision for getting these matters largely dealt with by judge alone will lead to a greater equalisation of the damages which are awarded in cases of that kind. Everybody realises that in a large number of these cases trial by judge alone will be a very great saving of public time, and I think that that saving of public time will be obtained without any injury to the public weal. One feels that there is a certain amount of justification for the consideration put forward by the hon. and learned Gentleman the ex-Solicitor-General with regard to cases of wrongful dismissal. On the other hand, any attempt to introduce such a wide definition as cases which may affect private character, I cannot help feeling, is fraught with great difficulty, because it is almost impossible to imagine any case in which some question of private character may not arise. It certainly would be intolerable if in every one of these cases where there was a bare possibility of that kind, it was absolutely incumbent on the judge to order a trial by jury.
On the other hand, those matters which were put forward by the hon. and learned Gentleman are matters which would, and could, be put before the learned judge where an application is made to him as to the mode of trial, and I venture to think that if it were represented to a judge in an action for wrongful dismissal, that action involved issues of fraud against the plaintiff, or issues which possibly might lead to the same sort of issue as in a criminal case, no judge would refuse a plaintiff in those circumstances a jury when he was asked to exercise his discretion with regard to the mode of trial. In regard to the other matters in this Bill, they are extremely useful Clauses. They will make for the improvement of the administration of justice, and, speaking generally, and with a fairly long experience of the practice of the courts, I venture to thank His Majesty's Government for this Bill, and to hope that it may have a speedy passage through the House.
§ 10.28 p.m.
§ Mr. GLUCKSTEIN
It is customary for Members addressing the House to say that they are not going to speak for any 1613 length of time, and I often find on those occasions that the speeches last from 20 minutes to half-an-hour. I merely desire to ask one or two questions, and to add some comments to those that have already been made. I join with the ex-Solicitor-General in respect of the wrongful dismissal type of action, and I trust that the Law Officers of the Crown will see their way to make some provision in Clause 6 for the inclusion of such cases in those which are to be tried by a jury. I am afraid that I must join issue with the hon. and learned Member for Norwood (Sir W. Greaves-Lord) for, although I have a much more limited experience, I find that certain judges, even when both parties desire the assistance of a jury, constantly refuse to allow a jury to be provided. So I feel that it is not a matter which can safely be left to the discretion of the judge, and that it should be included in some form of words in. Clause 6. I join with the hon. and learned Member for East Bristol (Sir S. Cripps) in asking the Solicitor-General as to the state of the list to-day, and whether it is not a fact that, in spite of the New Procedure Rules, there is already considerable congestion of business. Speaking from my personal experience, I know that dates as late as December are now being given to persons applying for the trial of their actions in the New Procedure List, and it appears to me—I hope that the Solicitor-General will be able to relieve our anxieties—that the New Procedure List is actually becoming as congested as the old list was. I wonder whether he will be able to tell us what steps can be taken to ease that situation.
I have one more question in relation to Clause 7. I see that according to that Clause a most beneficial provision is made by which the Crown is to pay costs in future. I would ask the Law Officers whether something is being done to assist the unfortunate litigant against the Crown in respect of matters like discovery. I have in mind a case in which I was involved, in which the litigant happened to be a manufacturer at an aerodrome. At the end of the War the Government took charge of the aero drome and of all documents which related to the aerodrome, and when by Petition of Right the litigant attempted to secure payment for work which he had done for the Crown, it was found that the Crown had his documents and would not 1614 give them up. I do not know by what right the Crown acted in that way. I hope that if there is such a right the Crown will see its way to waive it in this respect, in the same way as it has in respect of costs. I join with other hon. Members in welcoming this Bill, and I hope that it will have a speedy passage. into law.
§ 10.31 p.m.
§ Mr. LLEWELLYN-JONES
As a member of the solicitors' branch of the legal profession I would like to endorse what has been said by other speakers, and to welcome the introduction of this Bill. The only complaint I may have to make about it is that it is not of a more drastic character. When the Committee was appointed a few months ago we hoped that its recommendations would go very much further than they have gone in the interim report, and I trust that when the final report is submitted we may witness a large number of other reforms in connection with legal procedure. I would like to support what has been said by more than one Member with regard to the abolition of grand juries. Solicitors who have engaged in practice in the criminal courts will realise that the existence of a grand jury has very often caused considerable expense not merely to the county in respect of prosecutions but to those who are concerned with the defence.
The hon. and learned Member for Norwood (Sir W. Greavea-Lord) referred to the fact that a person who is indicted would very much prefer to find himself discharged as a result of a direction by the judge to a common jury that there-was no case against him, and have a verdict of "Not Guilty" recorded. In the only case which I can recollect in my own county in which a grand jury cut a bill at quarter sessions the man against whom the bill had been preferred was very much annoyed, because whereas an enormous amount of publicity had been given to the case before the justices no one on earth knew how it was he had succeeded in getting off at quarter sessions. Had the case been tried before a common jury in the ordinary way, and there had been a direction by the judge that a verdict of "Not guilty" should be returned, the man would have been very much more satisfied.
1615 As to juries in civil oases, I am satisfied, as a solicitor who has been engaged in a very large number of cases, that the proposed reform has been long awaited. Reference has been made to the position in county courts. During a practice covering something like 40 years I can recollect only two occasions upon which, on the instruction of clients, I have asked for a jury in the county court. Although a large number of clients know that they are entitled to a jury, invariably they prefer to let the matter be decided by the county court judge. I believe that there is the same confidence among the great majority of litigants in the decision of a High Court judge.
There are one or two matters upon which I should like to have information, especially with regard to Clause 6. At the bottom of page 6 of the Bill and at the top of page 7, the Clause states:Save as aforesaid, any action to be tried in that Division may, in the discretion of the Court or a judge, be ordered to be tried either with or without a jury.I should like to know whether it is intended that a decision of the judge on this point would be final, or whether a dissatisfied party would be entitled to appeal against that decision. Reference has been made by the hon. and learned Member for East Bristol (Sir S. Cripps) to the fact that there may be cases where it is valuable that a jury should be empanelled because of their sympathetic outlook. I have known cases where there was danger with a jury. They may be carried away by sympathy and may ignore the real issues involved in a case. One knows how many counsel have succeeded, by appeals to the sympathies of the jury, in securing a verdict which probably would never have been given by a judge sitting down coolly and considering the case from the point of view from which a case should be considered, on its merits as between party and party.
The Proviso at the end of Clause 6 is a most valuable one. If I am not mistaken, this is an entirely new departure in connection with the trial of civil cases. In complicated cases where there may be issues of fact, there is certainly an advantage in the fact that the judge, in ordering a trial by jury, can limit the issues to be considered by 1616 the jury to questions of fact which he thinks are specially within the province of the jury. Cases where a charge of fraud is involved are essentially those which could be submitted to a jury, whereas other issues, in a trial in which a large number of issues were involved, might be considered by the judge. The procedure of submitting certain issues of fact to the jury while reserving other issues to the court itself, ought to work well.
I trust, with other members of the solicitors' profession in the House, that this Bill may have a speedy passage. I am certain, from the speeches which have been delivered in the other place, and speeches which I have heard here tonight, that the two Clauses to which special reference has been made will certainly be of advantage from three points of view—expedition in litigation, the removal of uncertainty and the reduction of costs, which have advanced so much in recent years.
§ 10.40 p.m.
§ Sir GEORGE JONES
I desire to say a few words in reference to Clause 4 of the Bill, which deals with certain proceedings to which the Crown is a party. I think that everyone will agree—at any rate, those who are members of the Junior Bar—that the present procedure as between Crown and subject is archaic, cumbrous and expensive. The proposals made in the Bill, as far as they go, are good, but I would ask the Attorney-General whether he cannot go further. As I read Clause 4, it merely provides that in the case of a debt due to the Crown there will be a simplification of the procedure, and that the action may proceed by writ or County Court summons as the case may be. Would it not be possible for all actions by the Crown and all actions against the Crown to be put on the same basis as actions between subject and subject? In nearly all other countries in the world there is uniformity of procedure so far as regards the trial of issues of fact between the Government and the subject, and subject and subject and I think that, while His Majesty's Government are making this reform, they might go one stage further and say that the whole procedure in regard to actions between the Crown and the subject will be simplified once and for all.
1617 If I am in order, I should like to suggest that the time has arrived when the Crown might be responsible for the torts of its servants, in the same way in which private persons are. If a servant of the Crown commits an act of negligence, there is no remedy, though it is true that as an act of grace the Government usually pay. Although it is not strictly within the ambit of this Bill, I should like to suggest that the subject might be given the same right against the Crown as regards torts of its servants as he has against a fellow-subject. I desire also to say a word on the Clause which deals with the question of trial by jury. Although I am a member of the Common Law Bar, I agree with the proposal to limit the right to trial by jury in civil cases. I think most members of the Junior Bar will admit that, if one is right, there is no need for a jury, and it is better to have a judge alone, but the real temptation to ask for a jury is when one is uncertain about the merits of the case, and think one will stand a better chance before 12 men who are not used to weighing evidence than before a judge alone. The hon. and learned Member for East Bristol (Sir S. Cripps) has said that he thought that in all actions involving character there should be the right to trial by jury, but, for my part, I would suggest that any man whose character is involved is safer in the hands of a judge than in the hands of a jury. It is certain that, if a man's character is attacked and a judge tries the issue, the judge will insist on absolutely strict proof, which is not always the case with a jury.
Whatever else may be done, I hope that the exceptions to trial by judges only will not be enlarged. I can quite appreciate that the (a) and (b) classes of exception are largely supported by public opinion, but I think that it is really a concession to public prejudice, and I trust that the Government will not enlarge the exceptions for which provision is already made. I would only point out that in the Chancery Court actions of this very class are tried by a judge alone, and have been so tried for very many years, with extremely satisfactory results. As has already been pointed out, in the county courts also, where there is a right of trial by jury, in many cases it has dropped out of use, everyone being satisfied with trial 1618 by the judge alone. I am certain that the elimination of the jury must lead to a large saving of time, and, therefore, of expense in the hearing of actions, because one knows that trial by a judge results in a much quicker hearing than trial by a jury. The judge can give an intimation that on a certain point he has come to a particular decision, but that is impossible in the case of a jury, and the hearing has to proceed at full length.
The hon. and learned Member for East Bristol has said that there is congestion in the New Procedure List, but that has not been my experience. I understand that even to-day, at the end of June, dates are given for the early part of October in the New Procedure List. The hon. and learned Member shakes his head, but it was so two days ago. That is a wonderful tribute to the speed of hearing of actions when once we get quit of the trial by jury of issues of fact, which a judge is not only as fit, but much more fit, to try than a common, or even a special jury. For these reasons I support the Bill, but I hope the Government will be able to go a good deal further in regard to Clause 4.
§ 10.45 p.m.
§ Captain JAMES LOCKWOOD
I rise to support the Bill as a practising solicitor of many years experience. Although it seems a very simple Measure, it is one of far-reaching importance. I think it is our duty, as the junior branch of the profession, to put the points that arise on it before the House as we see them in the course of our daily practice. It seems to me that it is admitted that the administration of justice will not be in the least impaired by the abolition of grand juries. It is our experience that they make for expense, if anything they retard the speed with which justice is administered and, in fact, they are only a historical survival of an old system.
With regard to the question of the modification of the right to trial by jury in civil actions, as outlined in Clause 4, I should like to ask the Attorney-General whether it is a fact that the right to order a trial by jury will be a matter for the judge or for the master to decide on a summons for directions and, if it is for the master to decide, whether under the provisions of this Clause there will be as of right an appeal to the 1619 judge from the decision of the master. It is true that the system of trial by jury of recent years has been abused, and it is well known among those who have to administer the law that the question whether a matter is tried by a judge alone, or by a judge and jury, is often a question whether the plaintiff thinks he may or may not get greater damages with the jury, because in some cases it is thought that the sympathies of the jury are more easily swayed than the learned opinion of a judge who is constantly used to the administration of the law. It is my sincere opinion that this restriction upon trial by jury will not in the least impair justice. There is no doubt that provision is made in Clause 6 for all cases that are eminently suitable for trial by jury and I think that Clause will meet with support from most practising solicitors in the country.
With regard to proceedings by the Crown against a subject, I am sorry that it is only now that a very great difficulty is being remedied. For many years the Crown has been able to bring upon the subject an avalanche of litigation in taxation matters the costs of which, if he fought the matter as he might legitimately think he was entitled to do, would be so big as to prevent his having access to the Courts for justice simply because of the weight. of the costs involved. It may be that the Crown, for the purpose of deciding a principle of taxation, may seize upon a subject who has only a very small amount involved. In particular cases that subject, if he is to get justice, has to fight Government Departments with all the Law Officers behind them, and they may regard the matter as of transcendent importance and take the case from the Courts of Justice to the Court of Appeal, and so on to the House of Lords. In many cases, to my own knowledge, a subject has not dared to seek the protection of the courts in case an avalanche of litigation is brought upon him.
I am sure the whole country ought to be obliged to the Government for bringing this Clause forward. It makes it possible for the courts to make an order for costs against the Crown, but I think there should be an addition to this Clause so that when there is a case deciding an 1620 important principle which is brought against one subject, but which might just as well be brought against another subject, the judge who conducts the trial should have power to certify that this is a case which affects the general administration of the Revenue Department or whoever may be involved, and that the particular subject against whom the action is brought shall be indemnified at any rate for his part of the costs. I submit that contention to the learned Solicitor-General for his serious consideration, because the Government are going some way to meet the difficulty in the Clause as drawn, and I think it would be a very fair act if they would go a little further
There is only one other point I want to deal with, and that is in Clause 3. with regard to the power of the court to deal with liability to Death Duties. I should like to ask the learned Attorney-General whether this Clause makes provision for the case where there is a question as to the valuation of securities or assets for Death Duty purposes? It is within my own experience that subjects are unfairly dealt with, because at the moment there does not seem to be any speedy method of arriving at the value of assets which are submitted to the Crown for the purpose of assessing Death Duties. The Crown sometimes seeks to make the value of securities the value which is quoted in the Stock Exchange list for that particular period or day. If the asset happens to be a solid block of industrial securities, the value quoted in the Stock Exchange list for the day has no relation whatever to the sale of huge blocks. There are other similar cases. What I want to know is whether this Clause does not provide for the executor, or administrator, to make application to the court for the ascertainment of the value of any particular assets? Will the Attorney-General explain the provision, for the purpose of accomplishing the object I have submitted. Subject to these remarks this Bill is a wonderful step forward in the administration of justice and its simplification, and we welcome it as it is. But I do wish the Solicitor-General would go a step forward in the. direction I have submitted for his consideration.
§ 10.54 p.m.
§ The SOLICITOR-GENERAL (Sir Boyd Merriman)
The general welcome given 1621 to the Bill would make it unnecessary for me to say anything by way of reply, but for the fact that the hon. and learned Member for East Bristol (Sir S. Cripps) and other hon. Members have asked that certain particular questions shall be answered, and I will answer them briefly. The hon. and gallant Member for Shipley (Captain Lockwood), who has just spoken, asked a question with regard to juries and how the matter will be decided. The answer is that it will be dealt with in the first instance by the Master, subject to an appeal to the judge, and, of course, technically subject to an appeal from the judge, though experience shows that when a judge has exercised his discretion in the matter it is not very much use asking that his decision shall be upset.
I was asked to deal with the question of delay in jury cases. I have not any exact statistics, but, generally speaking, the position is that as far as trial by jury in London is concerned there has been no marked improvement, at any rate, in the situation during the last year, and it is true to say that jury cases in London are more in arrear than cases in the big provincial cities. It is precisely for that reason we are asking for the right to curtail trial by jury, because it is the enormous time spent in trying cases on circuit by jury, and to some extent in London, which makes the demands on judicial time, particularly of the judges on circuit. It leads to an accumulation of arrears in London. It is hoped that a very considerable improvement will result from the curtailment of juries.
I was asked about a number of matters which are not dealt with in the Bill. I doubt very much whether matters of that sort would come within the scope of the Bill. Let us see what the Bill is intended to do. The Master of the Rolls Committee has made an interim report with the object of making certain suggestions to which immediate effect should be given for the expedition of trials and the cheapening of litigation. We are not attempting to deal with the whole scope of legal reform. We are trying to get this Bill through in order that those particular remedies may be applied at once. If we were to try to bring about the reform of every controversial subject, it would be impossible to deal with them this Session. We desire to get the immediate reforms 1622 through which the Hanworth Committee has suggested which will at once result in remedying the present state of delay and expense.
The other point with which I must deal is the point raised by the hon. and learned Member for East Bristol with regard to the right of trial by jury in actions in which character is involved. The hon. and learned Member particularly raised the question of actions of wrongful dismissal. Wrongful dismissal may or may not raise questions of character. There are many actions of wrongful dismissal in which character is no more at stake than it is in any other case. On the other hand, it is almost impossible to say, as the hon. and learned Member for Norwood (Sir W. Greaves-Lord) has already said, that every single action may not raise a question of character. Everybody's character is at stake where there is conflict of evidence and where the judge has to find, on one side or the other, which evidence is true. The difficulty is in finding any form of words which would cover the situation. I suggest to the House that the real solution is to leave the matter to the discretion of the judge. In any case, where character was really at stake, in a wrongful dismissal or any other action, the judge would certainly order a trial by jury. It would really be found that that was the proper way to deal with the situation.
§ 10.59 p.m.
Marquess of HARTINGTON
I had hoped that my hon. and learned Friend the Solicitor-General would have absolved me from the necessity of speaking by dealing further with the question of grand juries, about which I still feel some anxiety. There is, I think, an overwhelming case for the abolition of grand juries in the great cities such as London, Liverpool, and Manchester, where considerable expense is involved by the calling of grand juries and where the administration of justice is such as to make their existence unnecessary; but there are other places where the grand jury might still, without undue expense to the public, fulfil a very useful function. Suppose it came to pass that we had in this country a Fascist Government which created a whole mass of new offences—such as holding views disrespectful to the Government. It might quite easily come to pass that our present majority might pass 1623 away. We have a great majority in the House now, but if the Government go on pretending to be an old woman missing the omnibus, their majority may pass and a Government led by the right hon. Gentleman opposite may take their place, and make a most frightful hash of things. Then there might come a Fascist Government which might pass emergency legislation creating a whole series of new offences, against which the grand jury might be a very constitutional safeguard, and prove of immense value.
Unless a really strong case can be put up for the abolition of grand juries, I would most seriously ask my hon. and learned Friend to consider whether in cases where the grand jury does not involve heavy expenditure, it might not be retained. It has been of value in the past, and I think it is well within the realm of possibility that it may be of great value in the future. A case might arise—I do not say that it will arise—when a grand jury would refuse to find a true bill for offences which by the common-sense view would not be offences, but which would be offences under a newly-passed Act of Parliament. In such a case the grand jury might be a real constitutional safeguard. Of course, a Fascist Government might abolish that safeguard in time, but that might take a year or more, and in the meantime the grand jury might be of immense value. I admit that there is solid reason in some cases for abolishing the grand jury, where it has to be summoned many times in the year and where there are a great number of witnesses whose attendance involves expense, in such places as London, Liverpool, Manchester, and possibly other great cities, but in the ordinary case of the counties where no great expense is involved, I think there is a case for retaining this constitutional safeguard which might be of great importance in years to come. I would ask my hon. and learned Friend to consider retaining grand juries in cases where they will not involve expense, unless he can show much stronger reason than he has shown for their abolition.