HC Deb 30 July 1937 vol 326 cc3586-99

3.4 p.m.

Mr. Clement Davies

I do not desire to follow the hon. and gallant Gentleman who has just spoken in the very interest- ing topic he has raised, nor do I desire to raise any matter of foreign policy. I want to direct the attention of the House to a matter which concerns us at home, that is, the administration of justice in this country. I regret that I have to use this occasion to raise this very important matter, because it is an occasion upon which unfortunately one cannot go into it in the detail one would like. One cannot suggest, for example, the necessary legislation that must be involved in trying to remedy the position as it is to-day, but most of the matters, I believe all the matters, with which I shall deal can be remedied by Orders-in-Council, or merely by Rules of the Court. I want to make it quite clear that in anything that I say to-day I do not in any way criticise a single one of His Majesty's judges. The prestige, the reputation for integrity and the ability of His Majesty's judges were never deservedly higher than they are to-day. I make no apology for quoting words which I myself used in a report of the Commission when I said: These men cannot be expected indefinitely to maintain their position solely by virtue of their personal merits and the incomparable jurisprudence which it is their privilege and pleasure to administer. There must always be three distinct elements in the administration of justice in all civilised communities, first the jurisprudence, which is the subject, of course, of administration and legislation, secondly, the men, the judges upon whose shoulders the burden of that administration rests, and thirdly, the machinery whereby the judges strive to effect the administration of justice. It is with that third matter that I desire to deal. The Lords' delays have always been the subject of comment and complaint, I believe almost from time immemorial. I need only cite Shakespeare and Charles Dickens. It is the uncertainty, the high costs, the long waiting period and the anxiety about which complaint is made, and made from generation unto generation, so much so that, to quote the words of one witness who gave evidence before the Commission which sat from 1934 to 1936, it is no wonder that the public of this country shun the law like the plague and prefer to suffer injustice rather than resort to it. Another man, Lord Maugham, and Mr. Justice Branson described the condition of things by the hard adjective of scandalous. Those are men of experience talking about the machinery of the law with which they have to deal day in and day out, and yet nothing is being done.

I had the privilege of serving upon the Peel Commission to inquire into the causes of these delays. We were appointed in December, 1934. We sat week by week. We considered innumerable documents. Memoranda were sent to us by all kinds of persons from all parts of the country. Altogether we examined 71 witnesses and we issued a report some 130 pages long giving our carefully considered opinion. After we had issued it I do not know what has happened. I suppose it has been pigeon-holed and put away, like the reports of other commissions. Why call upon us to waste our time in going through all those details, if no attention whatever is to be paid to what we report? We were all busy men. There were three judges, I think there were two K.C's. I myself was the one man engaged in business. The only time we could meet was in the evenings so that we might go about our ordinary avocations in the day. We spent evening after evening listening to witnesses and going through documents, and all that has happened, as far as I can gather, is that two committees have since been appointed, one to consider the anomalies of the jurisdiction of quarter sessions, and the other to consider circuits. As far as I know, no report has come from either committee, but one mighty thing has emerged. I understand that next October every judge will have a shorthand writer sitting by his side. That is all that has happened.

We are not alone in the way in which our report has been ignored. We were the seventh commission or committee that had been appointed to consider, in the main, these very matters, In 1892 there was a commission appointed to consider a drastic alteration of circuits. In 1908 a very important commission was appointed under the late Lord Gorel, who has been dead for over 25 years. In 1909 there was a committee of judges, and in 1913 there was a long commission sitting under Lord St. Albans, and from the evidence that was given before that commission and the report of the commissioners themselves, we had a lot of confirmatory evidence that the very things that were happening then were happening now. In 1922 there was another committee under Mr. Justice Rigby Swift, in 1932 Lord Hanworth and his committee sat, and in 1934 Lord Peel and Lord Hanworth and the other seven commissioners sat. Taken on the law of averages, the sands of time are running out and it is about time to appoint another commission to inquire into the very same things that were inquired into over a long period.

For centuries the State has rightly claimed the monopoly of the administration of justice. Arbitrations only some 120 years ago were regarded as illegal, and if you had an agreement to enter into an arbitration, that agreement was regarded by His Majesty's judges as one which offended against public policy. If the State claims a monopoly in the administration of justice, then it should administer justice quickly and cheaply as well as fairly. About the impartiality and fairness of the judges there is no complaint, but about the cost and the uncertainty and the long delays there is continued complaint. There should be one guiding rule for the State, and that is, that if there is to be expense with regard to the administration of justice, it should fall upon the State and not upon the litigant. If you have a dispute with your fellow men, there ought to be provided a machinery by which you can get that dispute settled quickly and cheaply. What is the practice to-day? The administration of justice costs nothing to the State. Taken as a whole, the total revenue that is obtained is greater than the actual expenditure. Small as the fees are which are paid on writs, and which are paid during the course of a litigation, the total amount is enough to pay the judges, their clerks and the officials and even to renovate and keep up the buildings. That comes out of the pockets of the litigants.

We scarcely ever get an opportunity of discussing this position, because all that happens is that we get a token Vote brought before the House, for the very good reason that the revenue which is received by the State exceeds the expenditure. The position is so vast that it is difficult to confine oneself within reasonable limits in dealing with it. I will, however, do my best. In 1935 an Act was passed increasing the number of judges. Might I, in passing, say that a little over 100 years ago there were, I think, 14 judges of the King's Bench Division, and by the Act of 1935 the number was increased from 18 to 20. But provision was made in that Act that if two vacancies occurred those vacancies should not be filled, so that the permanent number of judges we have is 18, with a population something like three times as large as it was 100 years ago. Even taking it simply on the basis of population we require something like 36 judges, but no application has been made to fill the two vacancies which have occurred, and to-day our judges are not up to the full quota which they might be under the Act which this House passed.

There seems to be some extraordinary feeling that if a judge loses five minutes of his time, somehow or other the whole British Constitution will come to an end. He must be occupied from 10.30 in the morning until 4 or 4.15 in the afternoon. Because he is kept there all that time litigants must be kept there for hours and days, with their witnesses, and juries must also be kept lest, perchance, the judge might be unoccupied for five minutes. Think of the cost. The cost to the State if a judge went away for a whole day and had nothing to do would not amount to more than £15 gross, but it would amount to less than that. What happens under the present system? In order that a judge may be occupied, not one case but two, three or even four cases are put in his list. The first case is called at 10.30 in the morning and it may be likely to last the whole day, or even a second or third day. But are the parties in the second, third and fourth cases allowed to go away? No, they must stay there, hour after hour arid day after day, lest their case should be called upon, lest the first case should collapse and the judge find himself with nothing to do for half an hour, or it may be an hour. If he took the afternoon off, he would be a better judge for it the next morning, but he must not do so. Therefore, the parties and the witnesses must be kept there and the juries must be kept there. What must be the cost of that to the State? What must be the cost of men taken away from their ordinary work—juries, parties, witnesses. Count up what they cost for a clay. It must amount to hundreds of pounds.

The position has become intolerable. The ideal system would be one under which a day would be fixed for the hear- ing of a case, and the case heard upon that day. This ideal has been achieved in three instances—in the Admiralty Court, in the Commercial Court, and for the last few years in what is known as the New Procedure List. Let me give an instance from the Commercial Court, with which the Attorney General and myself were familiar in days gone by. What happens? A writ is issued and two days later an application is made to the judge of the Commercial Court. He will hear the application, make the orders, take complete charge of the case, and fix a day for hearing. On that day the case will be heard and disposed of. Unfortunately, that court deals only with a certain class of cases. Obviously, the same thing can be done in the Admiralty Court, which deals only with ships and the conditions of shipping. In the New Procedure List you can get your case fixed for trial in about one month or six weeks from the date of the issue of the list, and we have been told by Mr. Justice Horridge that in no single instance had the court failed to dispose of the case on the day on which it had been fixed to come on. Why have a new procedure and an old procedure? Why, as one judge has put it, have a good procedure and a bad procedure? Why not have one complete procedure putting all litigants on the same basis?

Let me come to the case of London. One would have expected that London would receive first consideration. Here we have within 25 miles radius of the Law Courts in the Strand between 10,000,000 and 11,000,000 people. The tendency is to bring not only cases within the area of London to be tried in London but, if they are important, to bring them from the provinces and avoid the rush and crush which often happen on circuit. Yet London instead of having first consideration is put last. The circuits receive first consideration, then certain special courts, the Central Criminal Court, the Court of Criminal Appeal, the Divisional Court, and Chambers must be filled. What happens? I have looked at the daily list for the last months. During the whole of July there were only five judges of the King's Bench Division in London, and some of them were occupied upon special work. I understand that no jury cases have been summoned since 10th June. The position of the list today is that there are 171 non-jury cases and 130 of them had been set down for trial before April.

I hope the House appreciates what is meant by "setting down for trial." It means that the parties are ready to have the case tried the very next day after they set it down. One hundred and thirty out of 171 were ready for trial before April. With special juries, there are 81, 12 having been set down before April. With common juries there are 100, 50 having been set down before April. There is a total of nearly 200 cases which have been waiting for trial since last March. Since then there has been the delay of April, May, June and July, and to-day the judges go away for a well-earned rest of 2½ months. Therefore, there will be at least 6½ months delay before the cases come on for trial, and when the judges come back on 12th October they will immediately be sent off again on their travels round the circuits. I do not know when these cases will be disposed of.

Again, what happens in London? There are those long absences of the judges, and one tries to make arrangements with one's clients. They ask what they are to do. Suppose a client is fiftieth on the list, and there is not a judge in London to take the case. The client may want to go to the Continent, or even to America, on business, and he asks whether it is safe for him to do so. Looking at the list and considering the absence of judges, one says, "Yes, it is perfectly safe for you to go." But then the circuit list collapses, and the judges rush back to London, travelling overnight, having wired to say that they are coming. Ten or 12 judges may be back in London in one day, and each one of them is assigned four cases, which makes 48 cases, and one's client comes in the list next day. But he is in Paris on business. What is one to do? All that can be done is to approach the other side and make the best settlement possible. I am in favour of settlements at all times, but not of settlements which are forced settlements, because they leave rankling dissatisfaction that is never eradicated from the minds of either party. That is the position.

Is it to be wondered that for a long time now the commercial community have put in their contracts a clause which may be translated as follows: "If any dispute arises under this contract, in no circumstances whatsoever will we go before one of His Majesty's Judges"? That is what it amounts to, although it reads, "Any disputes under this contract shall be referred to arbitration." What does that mean? They do not go to arbitration because it is more satisfactory or less expensive. It is more unsatisfactory. The arbitrator does not know how to weigh up the evidence, he is not an expert and it is much more expensive, because the arbitrator will often charge excessive fees for sitting, and usually there are three arbitrators. Nevertheless, the commercial community prefer to go to them, and to put up with an unsatisfactory award, merely because they sit on a day which is convenient to everybody. That is why that Clause is being put in all contracts, and that is why the courts are so unpopular.

I wish now to deal with the circuits. At the present time, the judges go to 61 circuit towns, some of them small and some of them large. I do not want to stop a judge going to any town which he has been in the habit of visiting, but at the present time there are over 30 towns with over 100,000 inhabitants which have never seen a "red" judge. It is essential for the well-being of the community that the "red" judge should be seen from time to time, and that the magistrate should observe the way in which he does his work. It is about time that he went to Sheffield, Hull, Bradford, Plymouth, and all the big towns that have never seen him. Yet some of the smaller towns in Wales get a "red" judge twice a year. I do not want to derive the small towns of that privilege, but I do not see why the judges should not go to the larger towns. It is specially important now, because of the way justice is administered. We were told by Mr. Justice Horridge that in the case of young prisoners he always wanted to see the parents or the friends. Just imagine the expense which that may involve. We were told that when the Assizes were held at Leeds, a train left Hull every morning filled with witnesses, parties to cases, jurors, and so on. If the court adjourned in time, they returned to Hull that night, but if not, they have to go to the expense of staying the night in Leeds. What would be the expense involved if the judge went to Hull? He could go in his motor car from Leeds and deal with the cases there.

Another thing is that on circuit Judges often sit abnormal hours trying to get through the work. A judge fixes the day of his arrival at the first circuit town and he fixes the dates for the succeeding circuit towns. The judges must do their best to keep to this arrangement and in order to do so they will sometimes sit from 10 o'clock in the morning until seven or eight o'clock in the evening and even nine o'clock in the evening. I have known a judge sit until 11 o'clock, and the late Lord Hanworth told me that his great-grandfather once wrote to his great-grandmother at three o'clock in the morning, saying that he had just summed up to a jury in a murder trial, and had never been clearer in his life. I described it as a scandal. I was glad to note that another great judge had once said to Lord Justice Vaughan Williams that "little justice was done by candle light."

The judge may be able to stand these long sittings, but what about the prisoners and the witnesses which have to go through periods of anxiety in an atmosphere about which they know nothing before they come into it? How can a man do justice to himself who has been sitting in a court from 10 o'clock in the morning when he is called to the witness box at eight or nine o'clock at night? These long sittings are not desired by the judges, but they must get through the work and sometimes they have to call upon a King's Counsel to help them by taking some of the cases, and then, if they cannot get through the work, they send for us and they do what we on circuit know only too well. They "smash the list" as it is called, by using their persuasive powers to induce litigants to settle and thus get rid of the cases, but as I have already said a forced settlement cannot be a good settlement. I had also wished to refer to the anomalies of quarter sessions and county courts and to the tremendous cost of documents and printing, but I hope I shall have another opportunity of raising those matters. I hope I have said enough to show that the administration of justice in this country is not what it ought to be.

Mr. Gallacher

On a point of Order. In view of the fact that it has been found impossible to call me in the Debate upon Spain, am I to take it that there is a non-intervention policy to keep me out?

Mr. Speaker

That does not seem to be a point of Order.

3.35 p.m.

The Attorney-General (Sir Donald Somervell)

I am grateful to my hon. and learned Friend the Member for Montgomeryshire (Mr. C. Davies) for having raised the matters with which he dealt first, because they are of great importance, and secondly because it will enable me, I hope, to remove some of the misapprehensions which, I think, exist in his mind. First of all, he drew a picture of conditions which existed in the past and suggested that nothing had been done, but I do not think that that is quite a fair statement of the case. In my own experience at the Bar, I know that effective steps were taken to deal with at any rate some of the matters to which he referred. He referred to the new procedure list. As an individual who, while I was in private practice, took some part in consultations with regard to that list, or the steps which led to it, I think it is not at all accurate to suggest that those concerned with the administration of justice have done nothing to try and deal with the evils to which my hon. and learned Friend referred. It is obvious that the fact that the law's delays have been referred to throughout history shows that the problem is a difficult one. It is one which has baffled previous generations, and no doubt, if you have a case of any complexity and the parties are unable to settle it in the spirit of conciliation, but desire it to be tried out, with full evidence and arguments on each side, before a judge, it is a matter which almost inevitably must involve time, expense, and anxiety. Some of the instances to which he referred make it very difficult to produce a state of affairs in which all the objections would disappear.

Now I will come to what is really the basis of his speech, the Royal Commission, on which he himself sat, and I would like to dispel completely and effectively the suggestion that that report has been pigeon-holed and that nothing has been done under it. My hon. and learned Friend referred to three committees. The setting of those committees was recommended by the Commission itself. It recommended that a small committee should be set up to review the claims of towns that want assizes, and it recommended that a small expert committee should be set up on quarter sessions. Therefore, in setting up those committees, my noble Friend was not in any way delaying, but was carrying out the suggestions made by the Commission. Those committees were set up, and my hon. and learned Friend said he did not know whether they had reported. It may be that other matters have detracted from his interest in these things since he actually served on the Commission, but the fact is that the Circuit Towns Committee reported in August, 1936, and the Quarter Sessions Committee in July, 1936, and the reports were presented to Parliament. My hon. and learned Friend also referred to the Shorthand Writers' Committee. That matter is in hand, as he knows, and we hope it will come into operation next October.

Those committees reported, and it was not until they had reported that we had a complete picture. If anybody interested in this matter cares to go through the recommendations of the Royal Commission, summarised on pages 103 to 106 of their report, he will find that a number of these matters involve legislation and a number of them do not. Certain things have been done, but I want to present a broad picture to the House. It may be said, Why did you not do the things which do not require legislation, without waiting for the things which do require legislation? One or two minor matters have been dealt with, such as the shorthand writers matter, but the thing is not quite so simple as all that, because, as I am sure my hon. and learned Friend would be the first to admit, to a very large extent the recommendations hang together. For instance, you do not want to increase circuit facilities until you have brought into operation the recommendation by which time on circuit can be examined. Although it is not true of all of them that they are interlocked in that way, it is true to say that a large number of these matters are interlocked and ought to come into operation together.

With regard to those matters which involve legislation, it is out of Order to discuss them to-day, but I do not think it could be trespassing against that rule if I gave the House an assurance that those matters which require legislation have been under active consideration and have reached the stage when it is hoped to take decisions on them shortly and to present a Bill to Parliament. I am not saying that all these recommendations have been adopted, because the time to consider them will be when the decisions have been taken and the Bill is before the House, but they are under active consideration and decisions have been taken on a number of them. I would refer particularly to what I agree, and have long felt, is one of the vital things in this matter, namely, the fixing of days. With regard to this matter and the other matters which are mostly set out on page 105 of the Report, I am in a position to tell the House that not only have they been considered, but draft rules are already in being, and are under consideration by His Majesty's Judges and others concerned with a view to getting them in proper form and bringing them into operation as soon as possible. There, again, I am not saying that they cover every point, but decisions have been taken on a number of points and draft rules are being considered, in particular with regard to the recommendations in 2 (1), namely, to extend the system of fixing dates as far as it is possible.

That gives a general conspectus of the position and I hope it will relieve my hon. and learned Friend's mind. I am not complaining of anything he said, because I appreciate the very natural feeling of some one like himself who has given up many hours and given hard work to the problem. I agree that there has been a long period of silence, but things have been going on in the way of researches of sub-committees, a consideration of their recommendations, and the putting into proper form of the recommendations of the Commission. There is another point on which my hon. and learned Friend will agree with me, and that is that when we are dealing with matters of legal procedure it is much easier to see the general line on which reform is desirable than to translate that into actual day to day rules of procedure. I agree with the main point my hon. and learned Friend raised with regard to the hardship inflicted and the waste of time when, witnesses and others are kept hanging about. I think that perhaps he did not give enough notice to the fact that His Majesty's judges are aware of the hardship, and, within my own knowledge, in many cases, when it becomes obvious that a case will not be reached, it is released. Provision has to be made for cases being settled unexpectedly, and it may be that what my hon. and learned Friend says is right, that in some cases too much attention is paid to the possibility of a judge finishing his work before the end of the day. The real answer to that problem probably is the extension of the system of fixing of days because that in itself does involve information being got as to the length of a case and so on. It is hoped that that particular inconvenience will be diminished.

The hon. and learned Member spoke about London, and it is true to say that London has many advantages, but both in regard to the circuits and London it is hoped that the position of affairs will be very much improved under the rules which have been considered. My hon. and learned Friend referred to certain cases which had been set down for equity, and I am not saying that at the moment there may not be a number of cases which, under an improved system, would not have been tried some time ago, but it is not accurate to say that when a case is set down it is always ready to be heard. From my own experience I know there are many instances in which a case may have been set down for some weeks, and in which if it happens that one of the judges should come back rather earlier than had been expected, the solicitors turn up and ask for the case to be postponed because they are not ready. In regard to new circuit towns, the sub-committee recommended both Sheffield and Newport as new circuit towns, and steps have been taken to communicate that decision to them with a view to their providing the necessary buildings.

My hon. and learned Friend said that his remarks were in no sense a criticism of His Majesty's Judges, and I should like to associate myself with that and to assure him and the House of the interest of His Majesty's Judges in this matter. In particular the Lord Chief Justice, who is head of the King's Bench division, is more alive than any of us, because of his contact with the work, to the fundamental importance of making the machinery as expeditious and convenient to the public as possible. So far as my noble Friend is concerned from what I have said the House will appreciate that the matters to which my hon. and learned Friend has referred have been under his active consideration, and that very considerable progress has been made towards putting, at any rate, a considerable number of them into practice. I am in full and complete agreement with the main object which my hon. and learned Friend has at heart in raising the matter, namely, that our system of judicial procedure may be made as prompt, as expeditious, as convenient and as uncostly as circumstances will permit.