HC Deb 29 June 1934 vol 291 cc1528-40

Order for Second Reading read.

3.20 p.m.


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

This is a simple Bill, which I can explain to the House in very few words. Everybody will agree that a proper judicial system should provide for appeals, but everybody will also agree that if there are excessive opportunities of appeal it is not in the real interests of litigants and may give an excessive advantage to a wealthy corporation or a wealthy client, to whom the costs of an appeal, if the appeal proves unsuccessful, are a very small matter. It is for the purpose of restricting appeals that the Bill is introduced. It follows the recommendations made by a committee presided over by Lord Hanworth, and it has two Clauses of substance, and deals with two matters.

The first Clause deals with appeals from the Court of Appeal to the House of Lords. In accordance with the recommendations of the Committee the Clause provides that no appeal shall lie to the House of Lords from the Court of Appeal except with the leave of the Court of Appeal, or with the leave of the House of Lords, or a Committee set up for the purpose of dealing with that particular matter. At the present time a litigant has the right to take his case from the Court of Appeal to the House of Lords and thereby enter upon a third and in some cases a fourth appeal from the original hearing. I do not suggest that there are any considerable number of cases in which that right of appeal is abused, but it certainly is desirable that no appeal should be taken to the final tribunal unless it is a proper case for that purpose, namely, a case involving an important point of law, and on which there is some doubt as to what the final decision shall be. Therefore, the first Clause deals with that matter. The second Sub-section of Clause 1 provides that there may be a committee set up to deal with the question of leave to appeal and on that committee there must be at least three Lords of Appeal. The third Sub-section preserves the position in certain cases where there is at present no right of appeal from the Court of Appeal to the House of Lords.

Clause 2 deals with appeals from the county court. The position as to that at present is that there is an appeal from the county court on questions of law but not on questions of fact to a Divisional Court which consists of two judges of first instance, judges of the High Court. From that court there can be an appeal to the Court of Appeal, and from the Court of Appeal again, subject to Clause 1 of this Bill, there is a right of appeal to the House of Lords. With things as they are at the present time in regard to county court cases, it very often happens that one litigant is a person of small means and the issue involved financially is not much, but there is a possibility of there being three appeals, that is to say, four courts dealing with the issue. I think the House will agree that that is not a desirable state of affairs; and the Clause remedies it.

Clause 2 provides that appeals from the county court, instead of going to the Divisional Court and then to the Court of Appeal, shall go straight to the Court of Appeal. The matter might have been dealt with in other ways. The Court of Appeal might have been cut out altogether and the decision of the Divisional Court made final, but this method, which I commend to the House as the best, is in conformity with the present procedure under Workmen's Compensation Act cases. These cases go in the first instance to the county court and appeals go straight to the Court of Appeal. That has given general satisfaction, and this Bill will bring ordinary appeals from the county court into the same position. If anyone reads Clause 2 they will find it a little more complicated than I have stated, but the position is that there are certain special Acts, prior to the County Courts Act, 1888, which have special procedure and special provisions as to appeals. In some cases there can be an appeal on questions of law and fact. In one case, for example, under the Guardianship of Infants Act, there is an appropriate procedure by which appeals come before a Chancery Judge and the judge can hear the matter in chambers. The complexities in Clause 2 and the Schedule are to preserve these special methods of procedure for special cases where it seems appropriate that they should be preserved. That explains the Bill, and I ask the House to give it a Second Reading.

3.27 p.m.


I only want to say to the Solicitor-General that it must not be assumed that because it is the end of a Friday sitting and a thin House that Bills like this can be put through without any observations as to the merits of the proposal, although we may not be well versed as to the details of the Measure. From my experience of the courts of referees, I have found that when people have been appearing before them they are given a slip with two lines upon it "leave to appeal," and "no leave to appeal," and the bulk of these people never receive the right to appeal. Clause 2 is a little complicated, particularly to a lay man, but I should like to ask, who is to decide, what tribunal is to decide, which cases shall have the right to go to the Court of Appeal? The Solicitor-General has not told us. Is the well-to-do litigant to decide it, or the poor litigant, or will there be some competent tribunal to advise poor litigants as to the wisdom of appealing? If the Solicitor-General satisfies my Friends and I that poor litigants will be advised as to whether it is wise or unwise to appeal by some competent tribunal there will be no objection to the Bill from this side of the House, but if it is to be left to chance we are a little perturbed. I shall be glad if the hon. and learned Member will tell us what tribunal or authority is going to guide poor litigants as to the advisability of an appeal.

3.30 p.m.


This Bill comes here under illustrious auspices. In another place I believe it bore the imprimatur of the Lord High Chancellor, and it is to give effect to the recommendations of a Committee presided over by the Master of the Rolls. In such circumstances it needs no commendation from me, and I rise for quite another purpose. The Bill contains a defect. Fortunately the Bill lends itself to amendment, and at a later stage I shall propose an Amendment which will remedy the defect. The defect is this: The Bill proposes to restrict the right of appeal from the Court of Appeal in England, in effect to make the Court of Appeal in England the supreme court in fact as well as in name. But I scan the Bill and scan it in vain to find any reference whatever to the Court of Session in Scotland. The compelling reasons which constrained the Committee to make their recommendations apply with fourfold force to the case of the Court of Session.

One of the disquieting signs of the times in Scotland is the decline in the volume of litigation. It is disquieting because it indicates and arises from the industrial depression. Judicial statistics are sometimes truly said to be the best barometer of trade. But it is disquieting and disturbing for another reason. The law courts in Scotland have in large measure fallen into disrepute. If two business men in Scotland have a question to settle they will resort to an arbiter, and they will do that although he may not be the appropriate tribunal for the question they have to decide. They will resort to an arbiter and they will even submit to injustice, but the one thing they will not do is to get themselves entangled in a litigation. For my part I have very considerable sympathy with them. Once you embark on a litigation in Scotland you do not know what it is going to cost and when it is going to end.

The learned Solicitor-General gave us a description of a vista of appeals in England. I will not weary the House with a similar description, but here is a case which has a strong family resemblance to the illustration we have been given. A case is commenced in the sheriff court. It is heard by the sheriff-substitute. The unsuccessful litigant takes the case to the sheriff depute. It is heard all over again by the sheriff depute. He arrives at the same conclusion as the substitute and confirms the decision. You may say that surely then the case will end. Not a bit of it. The unsuccessful litigant will then proceed on his travels to Edinburgh, and once again the case will be heard, this time by four of the Lords of Session. They arrive at the same conclusion for the third time and the decision is confirmed. Is not that an end of the whole matter? No, the worst is to follow. The unsuccessful litigant will now appeal to the House of Lords.

To some legal minds, the right of appeal has an irresistible attraction. There is a certain type of legal mind which always finds it possible to conceive of some new argument or some facet of an old argument which can be presented provided you can get a tribunal to listen to it. To a certain type of legal mind there is, indeed, no reason at all why a litigation should ever come to an end, but we must take a broad view of the matter and I make bold to advance this proposition. No reasonable man would propose to abolish the right of appeal altogether but all the public want and all that is necessary is that you should have such a tribunal as will afford a speedy decision, pronounced by a reasonably competent court. No one I think would be so foolhardy as to suggest that the Court of Session in Edinburgh is not a competent court. Let me remind the House that in our criminal system in Scotland there is no such thing as a right of appeal to the House of Lords. There never has been in our history. In the building and developing of the criminal system in Scotland we have never had the benefit of the guidance of the House of Lords.

What has been the result? English Members I suppose would say, "Chaos." But if you compare our Scottish criminal system and practice with the corresponding system and practice in England you will find that the Scottish system, by the speed of its operation, by its anxious solicitude for the interest of the accused and by its efficiency, is incomparably superior to the system which obtains south of the Border. The hon. and learned Solicitor-General smiles but it is incontrovertible that, by our own unaided exertions in Scotland, we have built up and developed a criminal code which, is the envy and admiration of the civilised world. This Bill is a very modest little Bill. As the Solicitor-General has told us, the proposal is not that we should abolish the right of appeal but merely that we should limit and restrict it. The Bill accomplishes that and will get rid of the vexatious appeal. I cordially support the Second Heading and when the Bill has been dealt with in Commitee and returns to us for Third Reading, I hope I shall be able to support it even more cordially in an altered form and that English Members will not deny to Scotland the benefits which they propose to confer upon their own country.

3.38 p.m.


As one who spends his life in the administration of the law I should like to add a few words to what has been said on this Bill. With regard to Clause 1, I unhesitatingly support the Bill upon the grounds which the Solicitor-General has stated. With regard to Clause 2 a rather different question arises. Hon. Members perhaps do do not fully appreciate the fact that appeals from the county court have hitherto been heard in the first instance by a divisional court which consists of two judges. Now that will end and the appeal will be heard by the Court of Appeal direct, and the Court of Appeal consists of three judges and therefore for each appeal there will be one additional judge. That is a very serious matter. So far, the divisional courts have been formed from judges of first instance and judges of first instance are very heavily overworked at present. There is a great deal of work in arrears and if the Bill means that the Court of Appeal in these cases is to be constituted from judges of first instance, then those judges will be drawn from their ordinary work and further delays will take place. My suggestion is that if the Government wish to do this, they ought to set up a third Court of Appeal and leave the divisional court judges to go on with their ordinary work of first instance, of which they have plenty to do. I think that it is very shortsighted not to do that. If we do not do it, it will only mean greater delay. I am sorry if my suggestions do not come within the Title of this Bill, but I do urge the Government very seriously to do this. It is certainly cheap, because the administration of the law pays for itself, arid makes a little profit. Therefore, I urge the Government very strongly to supplement this Bill by another one.

3.41 p.m.


I wish, first of all, as Vice-Chairman of the Bar Council, to say that the Bar Council welcome this Bill. I also want to join very largely in what my hon. Friend the Member for Cambridge University (Sir J. Withers) has just said. May I say one word with regard to the first Clause? There can be no doubt that an unrestricted right of appeal to the House of Lords may be a matter of very great oppression. An unsuccessful though wealthy litigant may at present go as a right to the House of Lords, and that means involving the successful litigant in an enormous amount of expense which may really, in the end, although the decision remains the same, deprive him largely of the fruits of victory. It is as well that that right should be supervised. The right to apply to a Committee of the House of Lords, in the opinion of the Bar Council, fully safeguards the interests of the litigant in every way. At the same time, the restricted right of appeal does prevent the present system under which appeals to the House of Lords may be matters of very great oppression, and it is right that that right should be restricted in the way suggested.

With regard to the second Clause, we approve entirely the suggestion that appeals from the county court should go direct to the Court of Appeal. There is at the moment a great deal of confusion as to whether the right does lie in certain cases to the Divisional Court or to the Court of Appeal. All those doubts will be set at rest. It is quite unsatisfactory that one appeal from the county court should go to the Court of Appeal direct and another to the Divisional Court. All that will be done away with, and those doubts set at rest. I would suggest to the Government that they might also consider very seriously whether it would not be better at the same time to take steps to provide that a certain number of other cases which now go to the Divisional Court, with the subsequent right of appeal to the Court of Appeal, should not also go direct to the Court of Appeal. There is very little distinction in the class of cases, and it would be far better to have one tribunal than two tribunals.

One must not forget that the county court is primarily the poor man's court, and that this Measure is going to add something like 100 appeals a year to the Court of Appeal. It is of vital importance that appeals from what is the poor man's court should not be delayed, and it is for that reason that I understand last week—I was not present myself—the Bar Council passed a resolution that this Bill should be supplemented by a definite addition to the present Court of Appeal, so that it might deal with increased business. One must not forget that the recommendation that cases should go direct to the Court of Appeal was in part made with a view to relieving the King's Bench Division Judges of the burden which they have at present and enabling them to deal with the great mass of arrears that there is in that Division. For that reason, we welcome the fact that King's Bench Judges will be relieved and set free to do their ordinary work, but if, as has been suggested, all that is going to happen is that a third division of the Court of Appeal is to be set up by drawing from the King's Bench Division, confusion will be worse confounded, because the only result will be that, whereas these appeals are now dealt with by two judges, they will be dealt with in future by three judges, and arrears will grow up much more heavily in the future than in the past. I hope the Government will take that resolution into consideration, and, while this Bill will make far more efficient and expeditious the work of the courts, it can only do so if, at the same time, they take steps to increase the Court of Appeal.

3.47 p.m.


As we have had some words from a layman, a Scottish lawyer, a leading solicitor, and a leading King's Counsel, it will not be amiss if one from the junior Bar says a few words. We welcome this further instalment and pay tribute to the Lord Chancellor and the Law Officers for the way in which, during recent months, they have pressed forward with this matter of law reform. With regard to the remarks of the hon. Member for Stratford (Mr. Groves), Clause 1 will mean that the appeal to the House of Lords is not at the discretion of the rich litigant, but either of the Court of Appeal or of the House of Lords itself, or the Appeal Tribunal of that House, whatever it is going to be called. I think we all welcome that. Those of us who read the law reports in the "Times" this morning must have read the observations of a learned law lord giving judgment in the case of Mosley against the "Daily News," in which he commented that it was quite unnecessary on a matter of mere procedure that there should have been, not only a trial before a master, but before a judge in chambers, before the Court of Appeal, and before the House of Lords, on a mere interlocutory matter. It is that kind of thing that Clause 1 of this Bill will stop.

With regard to Clause 2, I think we all welcome the doing away with the Divisional Court and appeals going to the Appeal Court, but I would like to re-enforce what the hon. Member for Cambridge University (Sir J. Withers) and my hon. and learned Friend the Member for Norwood (Sir W. Greaves-Lord) both said with regard to the question of the Appeal Court. The report of the Business of the Courts Committee, with regard to doing away with the Lords Justices and recruiting the Court of Appeal from various judges of the King's Bench Division, has found very little favour among practising members of the Bar and, I think, among those Members of this House who have studied these questions. The Court of Appeal as at present constituted has a very high authority in this land, and we do not wish to see, by having a changing court, the decisions less uniform than they are at present through having the court always constituted from the same personnel.

I am glad to see that, at any rate, there has been no provision in this Bill to alter the status of Lords Justices, because I believe that that rests on one of the provisions of the Supreme Court of Adjudicature Act. I hope that no such attempt will be made, but, on the other band, I agree with both my hon. Friends who have spoken that we ought if necessary—I think it is necessary—to set up a third Court of Appeal which would deal not only with the matters with which the Court of Criminal Appeal deals, but with the additional matters which will come to the Court of Appeal by reason of Clause 2 of this Bill. I am afraid that it will not be the English Members of Parliament who will prevent my hon. Friend the Member for West Fife (Mr. Milne) from getting what he wants in this Bill, because, so far as I can see, it would not be within the scope and Title of the Measure to make it apply to Scotland. That seems to be a matter for another Bill. All I would say to him is that if he wants something done, he should urge upon his own Law Officers for Scotland to take the good measures which the Law Officers of England have done in regard to law reform in recent months.

3.52 p.m.


I hope that when the Solicitor-General replies he will give the House an assurance on what is the one vital criticism that has been made of the provisions of this Bill. I agree with what has fallen from my hon. Friends on this question. As pure machinery the provisions of the Bill in its present form are unexceptionable, but the working of these reforms does not depend upon machinery but on personalities. By greatly increasing the work of the Court of Appeal you make it impossible for the existing panel of lords justices to deal with the number of appeals. How are you going to deal with the appeals? That is a question which must be answered before the House really arrives at an opinion whether or not this is a good Bill. Are you going to draft the lords justices ad hoc from judges of first instance, or from a third Court of Appeal? This is not a criticism of detail, but goes to the roots of Clause 2 of the Bill.

I strongly support what has been said by other hon. and learned Members on this question. It is most desirable there should be a third Court of Appeal consisting of three lords justices, one of them, I should suggest, to be drawn from the Chancery Division and two from the King's Bench Division, so that there should be the happy blend which we have in the present Courts of Appeal. It is vital in order to keep confidence in the Court of Appeal, to have a court in which the profession and the country can trust. Everybody knows there is congestion in the King's Bench Division. One of the advantages of abolishing the Divisional Court is that judges will be able to deal with cases of first instance and not be diverted from their ordinary work. What is the use of saving time in one direction and adding to the congestion in another? It is essential to have further lords justices appointed so as to make this reform a real one. The cost is trifling, the need is great, and I hope the Solicitor-General will not merely give us an assurance that the matter will be considered, but will say that it will be acted upon and carried into effect at the same time that this Bill becomes law.

3.54 p.m.


An hon. Member opposite referred to the procedure in the Court of Referees under the Unemployment Insurance Act. So far as an appeal to the House of Lords is concerned, there is a somewhat similar procedure in that the court itself, or the House of Lords, will decide if it is a proper case for appeal. As far as the county court side of the Bill is concerned, there is at present an appeal as of right, and that will remain unaltered, the only difference being that the case will go straight to the Court of Appeal and will not have an intermediate stage. As to the hon. Member for West Fife (Mr. Milne), in a world where there are most frequently dissatisfied people, it is comforting to meet anyone so wholly satisfied with anything as he is with the administration of the criminal law in Scotland; but as to the point he raised I am afraid it will not be possible to deal with Scotland in this Bill. I believe, however, the matter is under consideration. The courts there have different names and the whole technical nomenclature is different, and it would be quite impossible to deal with Scotland in this Bill, but I have no doubt that those concerned will take note of the points he has put forward this afternoon.

I come now to what was said I think by my hon. Friend the Member for Cambridge University (Sir J. Withers), my hon. and learned Friend the Member for Norwood (Sir W. Greaves-Lord), my hon. and gallant Friend the Member for Uxbridge (Major Llewellin) and also by my hon. and learned Friend the Member for Moss Side (Sir G. Hurst). I think they all expressed the view that this Measure will involve increased work for the Court of Appeal. Matters which at present are being tried by two judges will be tried by three judges, and they suggested that this would do more harm than good unless the Judicial Bench were increased in numbers. I would like to say a word on what can happen at present. A Third Division of the Court of Appeal can be set up under the Judicature Act, and the existing personnel, the Master of the Rolls and the five Lords Justices, could sit two and two and two in three courts, reinforced by judges of first instance from either the King's Bench or the Chancery Division. I think that in the calculation he put forward my hon. and learned Friend did not make the allowance that has to be made for the present appeals from the Divisional Court to the Court of Appeal. There will now be only one field of appeal.


There are about 100 appeals to the Divisional Court, now tried by two judges, which will in future require three. At present about eight of those cases go to the Court of Appeal. Therefore, what we are doing is to send 100 cases which will require three judges instead of eight which now require three judges.


My hon. and learned Friends are perfectly right that this will involve increased expenditure of judicial time, and to that extent it increases the argument, with which I am familiar, that in view of the arrears, matters would be expeditiously disposed of if more judges were appointed. I am not in a position to give any definite assurance, except to say that, naturally, everything that has been said this afternoon will receive very careful consideration, and also that we are alive to the fact that the passage of this Bill strengthens the case which has been put forward.

Question put, and agreed to.

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

The remaining Orders were read, and postponed.

Whereupon Mr. SPEAKER adjourned the House without Question put, pursuant to Standing Order No. 2.

Adjourned at One Minute before Four o'Clock until Monday next, 2nd July.