HC Deb 11 November 1937 vol 328 cc1999-2011

Considered in Committee, and reported, without Amendment.

Motion made, and Question proposed, "That the Bill be now read the Third time."

10.37 P.m.

Mr. Clement Davies

Before the Bill leaves this House for another place I desire to enter one mere protest against this method of dealing with a situation which has been with us for some considerable time. In making that protest I also want to clear up one or two other matters which I had hoped to clear up during the Second Reading. The learned Attorney-General stated in his opening speech on Second Reading that the Peel Commission, of which I was a member, had not approved of the separation of the Probate, Divorce and Admiralty Division into various bodies, giving Admiralty work, where it should be on the King's Bench side, to a commercial division, giving Probate work to the Chancery Division, and making divorce separate. I challenged that statement, and I referred to the words of the report. I was followed by the learned Solicitor-General who, quite unintentionally I am satisfied, stressed one sentence, and one sentence only, in that report to show that I was mistaken and the Attorney-General was right. I know that we can, of course, go only upon the words actually in the report, but on reading the report it is perfectly obvious that we on that Commission disagreed with what had been decided by the Hanworth Committee, and if the House will forgive me I will read one or two sentences from that report which will make it clear.

The point we had to consider and advise upon was, what was the state of business in the King's Bench Division and what remedies could be suggested to get rid of any arrears? That naturally confined attention to the number of cases in the King's Bench Division and the number of judges, but as we went on we realised that the question of divorce was incidental to it. When. however, it came to the actual drawing up of the report my colleagues, differing from me, came to the conclusion—probably rightly, and I was wrong—that the question of separating divorce and giving it to the King's Bench side would not assist in clearing up the arrears on the King's Bench side; it would add to, and not lessen, the burden of the King's Bench Division.

Therefore they said; "We cannot consider this matter. We must regard it as outside," but they regarded it as of so much importance and discussed it so often that they felt it incumbent to put it into the report. May I refer to one or two phrases which will make that clear? They first of all set out the history of that Division and pointed out, as I did the other day, that judges who sit in that Division and try divorce cases are not practised in divorce; that they are people who have had no experience of divorce; but of necessity, because Admiralty is joined with it, they must be specialists in Admiralty. This is the way they put it: In fact, it is many years since the Probate and Divorce side of the Division produced a specialist in those subjects with sufficient general knowledge "— rather strong words to use— to fit him for the trial of Admiralty as well, and as a result the Judges of the Division must be either men with special skill in Admiralty who have never in their professional careers become acquainted with such issues as arise in connection with divorce and probate matters…. That was our view in considering all the evidence. Another matter which I brought to the attention of the House before, and to which I got no reply from the Solicitor-General, nor did the Attorney-General refer to it, is the terrible monotony to a judge of sitting day after day, Monday, Tuesday, Wednesday, Thursday, Friday—from Monday to Friday—from half-past 10 to four o'clock, trying nothing but divorce. This is what they say: Members of the Bar, well suited by experience for the trial of Admiralty cases, have had to decline the appointment, sometimes from reluctance to spend a great part of their lives in the laborious and in some respects distasteful task of trying divorce, and sometimes because they do not wish to be confined to those three matters and to be cut off from the general administration of the law. The hon. and gallant Member was quite right in saying that those judges should be asked to deal with the general administration of the law so that they might take a wider purview, that their experience might be all the greater and that they would not be confined to trying one particular subject day after day.

Then the report, having run through the history says: The proposals encountered much adverse criticism and had been put into effect, but we are satisfied, so far as the proposed transfer of Admiralty is concerned, that much of the criticism was due to misapprehension of the nature of the recommendations. Then the report cites Lord Wright, who was in favour of the Hanworth Committee's Report, and says: It may well be that the ultimate solution of the difficulties and the anomalies "— just the very thing that my hon. Friends have been pointing out— with which the High Court is now beset, lies in this direction that we adopt the Hanworth Report so far as it went. Now comes their reason why they could not adopt it actually into this report: The governing purpose of our Inquiry, however, is the greater dispatch of the King's Bench Division business. This proposed fusion of the Probate, Divorce and Admiralty Division with the King's Bench would only effect a saving of judicial time equivalent to the amount of Probate referred to the Chancery Division. Then it goes on: We cannot therefore "— What is the "therefore"? Because it is outside the purpose of the inquiry. We cannot, therefore, recommend the proposed amalgamation. We must regard it as foreign to the immediate purpose of our inquiry. Therefore, I was right, even taking the actual words that they used, in saying that the Commission of which I was a member did not disagree with the previ-

ous report. But there is one other significant passage in the report which refers directly to this Bill. The proposal was made to us to add to the Divorce judges, and this is what we said, unanimously: Another suggestion was made to us that a fourth judge should be appointed to the Probate, Divorce and Admiralty Division, and that the judges of that Division should all take turns in circuit work as far as possible; but, in view of its great difficulties, we are unable to recommend this proposal. So much for the report. It has been ignored to a very large extent. I know that the Attorney-General and the Solicitor-General have said that it is still under consideration, and reference was made in the Gracious Speech from the Throne to the possibility of a further Bill coming forward; but I want to protest again on this occasion, the last, perhaps, on which it will be possible for me to do so, that this is not the right method of dealing with the situation. I know that this Bill has been produced by the Government. Two learned Members of this House, the Attorney-General and the Solicitor-General, are not Members of the Cabinet, and, therefore, I do not suppose that they are responsible for the initiation of the Bill. The Bill has been initiated in the Cabinet, and I observed that, after the Bill had received its Second Reading, a Member of the Cabinet, the Lord Chancellor, speaking in the City of London the other day, used these words: The public do not seem to realise the necessity for the appointment of these judges. I do not know where he got that from. There was not a single Member of the House on the last occasion that did not demand the appointment of more judges, and more than the two provided for in this Bill; but they demanded them for general work. There has been a continuous demand, but all that we have, even when two extra are to be provided for in legislation, is not that they are added permanently, but that they are added temporarily. Even now there is a vacancy on the King's Bench side, and all that has to happen is that the Government shall come to this House and ask this House to resolve that the vacancy shall be filled. The House has never refused the Government that request. Time and again I have heard it suggested that the other side might object, but I have never heard a single Member on the other side challenge the request. They are all anxious that justice should be administered and administered quickly. That, therefore, is the answer to that sentence of the Lord Chancellor's. His next sentence was: Some Members of the House think that the panacea for all the ills is the making or creating of more judges. No Member in his senses has said so. We have said that there are many ills, and that they have to be put right, but one of the crying needs is the appointment of more judges, so as to save time. The third sentence he used was an astonishing one. He said: They do not realise that the number who are fit to sit on the Bench is a very limited one. What right has anybody sitting on the Bench to say that those who are practising before him, who have gone through exactly the same experience, are not as good men as he? I was told in the Temple only to-night by an old and respected member of the Bar, that as long ago as 1900 he heard a judge of the Court of Appeal say to his father, who was one of the greatest judges who ever sat: I agree there ought to be another judge appointed to the King's Bench Division, but there is no one fit to appoint. What has happened with regard to the judges from 1900 up till now—our Pickfords, our Atkins, our Hamiltons our Scruttons? There are quite as many fit to sit on the Bench as have ever been on the Bench before. Is it the view that is to be adopted by those in authority that they and they alone are the people to judge who is fit to sit on the Bench and that there are not people fit to take their places the moment the need arises? I only hope that if it is the Lord Chancellor's song that he will learn to sing another one rather than that of the Lord Chancellor in "Iolanthe": "The law is a true embodiment of everything that is excellent," he seems to say. "It has no single fault or flaw, and I, my Lords, embody the law." Do they realise that there are quite a number of men in this country fit to carry out these duties?

10.51 p.m.

Mr. Silverman

I hesitate to detain the House more than a minute or two, but I do not want the opportunity to pass without endorsing, at any rate, a large part of the argument contained in the speech of the hon. and learned Member who has just sat down. It is quite true, as he said, that Members on this side will not object to, and will not oppose, any Measure which the Government care to introduce if it is designed to make justice or administer justice quickly—we entirely agree that it ought to be administered quickly but also say that it should be administered cheaply. I said on the Second Reading that I was not at all certain that the hon. arid learned Member's alternative proposal would take the administration of justice anything but a very short step along the way which he and I both think amendment and reform ought to go. But we are entirely at one in this, that of the possible methods that were open to the Government in order to meet the immediate deficiency which has prompted them to propose this legislation they have chosen the worst method that was open to them.

I listened with very great interest to the speech that was made by the Solicitor-General, when he wound up the case for the Government on the Second Reading. I confess that I was not able entirely to follow him, or to appreciate the relevance of every argument which he used. He talked, for instance, about the difficulty of giving to county court registrars difficult questions relating to the custody of children. But really there are now committed to the adjudication not merely of qualified and experienced county court officials but to lay magistrates those very questions about the custody of children which the Solicitor-General advised the House were too difficult to be dealt with adequately by a county court registrar. It does not make any difference to the difficulty and the importance of questions about the custody of children whether the question comes before the court as part of divorce proceedings or in some other way. There is nothing whatever in the point that has been made.

It was then said: "Oh! we are dealing with an immediate emergency. It has got nothing whatever to do with the new cases which will arise under the recently enacted legislation. It has got to do with the emergency that exists owing to the inability of the courts to deal with difficulties that arose under the law as it was." In order to deal with an immediate emergency of that kind what are we doing? We are asked to appoint two judges who will not be entitled to retire on pension for 15 years, in order that they may devote themselves exclusively to dealing with the immediate emergency as it now exists. If you think that the Opposition is going to be parsimonious about this, if you think the Opposition is going to refuse the cooperation necessary in order to see that justice is quickly administered, why do you think the Opposition propose to appoint two judges for 15 years, in order to deal with an immediate emergency, which, if you appoint the two judges, will not last for a month? This is the worst possible way of dealing with it. The Government have had an opportunity of appointing judges who can share in the general work of other divisions of the High Court besides this Division. It could easily have been done. I know points were made about administrative difficulties. They could quite readily have been adjusted, and you would have had the advantage of being able to use these two judges in clearing away arrears in other Divisions.

Mr. Goldie

Is the hon. Member not aware that a judge, if his services can be spared, may go from the Divorce Division to the King's Bench, or vice versa?

Mr. Silverman

I quite agree, and that is the objection to appointing two judges to deal with divorce. If the hon. and learned Member says there is no harm in appointing a judge exclusively for divorce, because then he need not exclusively devote himself to divorce, why say in the beginning that he is to be exclusively for divorce? It only reinforces the argument I was advancing, that it is the very worst possible way of doing it. I say again, what was said in the Second Reading Debate, that you are not going to deal with the emergency. The emergency you are contemplating exists now. It is bound to be added to as the new cases, founded on the new legislation, come forward, as they undoubtedly must. You are not going to contribute to a solution of the difficulty in the least, even from the point of view you yourselves contemplate. The opportunity ought to have been taken for taking the administration of justice to the doors of the people, cheaply and quickly; and the overwhelmingly easy way in which that could have been achieved was by so extending the jurisdiction of the county courts that they might deal with this class of case.

I heard no argument in the Second Reading Debate which affected my view in the least, that the county court was eminently fitted to deal with cases of this kind, depending so much on knowledge and understanding of the conditions in poor districts and among poor people. Why should that opportunity have been missed? The point that has been made by speakers in every part of the House, both in the Second Reading Debate and, I understand, to-night, has been that, whenever the opportunity occurs, advantage ought to be taken of it to narrow down the gap that exists. The very poor get some kind of assistance in the administration of justice, the very rich can obtain justice without needing any such assistance, but the wide gulf between, middle-class people, are utterly unable to avail themselves of the advantage which the Legislature provides, by reason of the costliness of the machinery and processes involved. If you have the emergency, you could have dealt with it so easily by allowing the advantages of that social legislation to be reaped by all classes, and not merely by some. I hope that it is not too late to ask the Government to reconsider the matter even now, and not to let this opportunity go by, thereby establishing one more precedent and obstacle in their own path when the time comes, as inevitably it must come, when they or some other Government will be compelled to tackle the question in a broad and bold way, which is the only way in which it can satisfactorily be tackled.

11.1 p.m.

Major Milner

One ought not to let the opportunity pass of stressing the view that we on this side take in regard to the better facilities for citizens to hear their cases tried, and, particularly, the provision of an adequate number of judges. I have never yet heard it said on this side of the House, as was apparently suggested by the Lord Chancellor from what the hon. and learned Member for Montgomeryshire (Mr. C. Davies) stated, that there ever had been any question raised on this side in regard to the provision of the appropriate means or moneys to pay any judges either in the High Court, County Court or elsewhere, who might properly be required for the administration of justice. On the contrary, it can truly be said that we would welcome increased facilities for speedy, efficient and economical justice. I have taken part in a number of Debates on County Court Bills and other Measures when these suggestions have been made, but that does not perhaps arise directly on the present issue. The learned Attorney-General stated, if I understood him aright, that the particular judges whose appointment we are discussing to-night are required to deal with cases—I was not quite clear whether it was the present arrears or the anticipated influx of new cases—in the Divorce Division.

The Attorney-General


Major Milner

I was not aware that two judges, at any rate, could occupy themselves full time, as the Attorney-General rather indicated, on present arrears for any very long period.

The Attorney-General

That is why I said both.

Major Milner

The hon. and learned Gentleman rests himself on two grounds —the existing arrears, which it is desirable should be cleared off, and the anticipated influx of cases. I do not think these are the only considerations, and I believe that I am correct in saying that, owing to the provisions of the Act, not a single case has yet been entered nor indeed can be entered until after 1st January of next year. It is right and proper no doubt for the Government to make adequate provision in that respect. I should like to ask the hon. and learned Gentleman what is to be the position after 1st January next if the anticipated influx of cases comes along on circuit. To-day it is extremely difficult, in the great majority of cases, for the judges going on circuit to get through their work in the time allocated to them. If there is to be an influx of cases in London there will be an influx of undefended cases in the country. How do the Government propose to deal with that eventuality? There are the Assizes in the City of Leeds in March and it is conceivable that there may be quite a number of cases under the new Act. Are the Government thinking at all of making any provision for that influx? Has it not occurred to them that people in the provinces require help in this matter just as much as people who come to London over litigation?

I rather resent the suggestion, which was perhaps not intended but was latent in the Attorney-General's speech, that it was necessary to have judges to deal with cases in London alone. Presumably, there will be a great number of cases in the country. What do the Government propose to do in regard to that position? We are proposing to add to the already over-heavy burden of King's Bench judges on Assize. Would it not be far better to appoint additional judges of the King's Bench and to spread the work, whether it be in London or in the Provinces? The Attorney-General suggested that it was necessary to have specialists, more or less, in the Divorce Courts sitting in London. There, again, it is just as necessary that the King's Bench judges trying divorce cases on circuit should have at least an equal knowledge of divorce matters with those judges sitting in London. Why should the Provinces have to put up with ordinary King's Bench judges, while in London, according to what the Attorney-General said, although he may not have intended it, they are to have specialists?

The Attorney-General

I did not say anything of the kind.

Major Milner

If the Attorney-General will read his speech to-morrow I think he will agree that I am right. Our submission is that the judges should be the same in London and the country, and the proper, simple and obvious course is to appoint additional judges of the King's Bench Division to cope with the present arrears in the Divorce Division, the anticipated influx of cases in that Division and the anticipated influx of divorce cases on circuit. I have not seen the speech to which the hon. and learned Member for Montgomery (Mr. C. Davies) referred, which was apparently made not in another place but at some public banquet. I am sure that the practising members of the legal profession, whether in the higher or the lower branch, would resent any suggestion that there are not men at the Bar to-day who are equally as capable of occupying the position of judge as any of those who occupy that position to-day. I speak with some experience of giving briefs to barristers. There are clients who want to brief, at enormous expense, one out of three or four well-known barristers who, at the moment, happen to be most in the public eye. But I say to them frankly that, unless their means are very exceptional, there are equally as good men, who will do at least as good a job, and will certainly devote more time to it, and give it more personal attention for one-third of the fee that one would have to pay to one of those barristers who, for the time, happen to be leaders of the Bar or happen to have been in some cause célèbre before the public.

It is the same in regard to judges. I have from time to time been requested to make, or of my own volition have made, recommendations for County Court judges or High Court judges. The method of appointment of these judges is not satisfactory. I do not know on what principle judges of the High Court or judges of the County Court are appointed, but I deny that they are appointed on the grounds of efficiency alone; because we all know of instances in the High Court and the County Court where those particular grounds are conspicuous by their absence. I hope the Attorney-General will take this matter up with his Noble Friend, and point out the dissatisfaction that exists among a considerable body of opinion in this House, in both branches of the legal profession, with regard to the course proposed in this Bill, and generally, on the appointment of judges. We ought to be grateful that we have had this opportunity of indicating to the Attorney-General and to the Lord Chancellor what our feeling is. I have inquired from members of the Bar practising in different branches and in different positions, and each one to whom I have mentioned the mater has agreed that the sensible thing, which every member of the Bar would approve, would be the appointment of two additional judges to the King's Bench Division.

I presume that the Bill will have to go through, but I must enter an emphatic protest against the procedure adopted. The powers-that-be must be given to understand that this sort of thing must not happen again, and that one consideration must be given to efficiency when judges are appointed, and that that consideration is the principal consideration in these matters. What I have said represents a considerable body of opinion in this House.

11.11 p.m.

The Attorney-General

I welcome the assurance of more than one hon. Member opposite that they will not offer any opposition to any decision of the Government when they think it proper to suggest additional judges, but I find it a little difficult to reconcile this assurance with the fact that they divided against this Bill, which proposes to appoint two additional judges. As I see the Bill and as I commend it to the House, it was not a Bill dealing with the organisation and administration of the bench. On Third Reading we have to discuss what is in the Bill, and we have to consider it therefore in the light of the administration of justice as it is organised at the moment. Divorce cases are dealt with in the Probate, Divorce and Admiralty Division, and there are arrears in that division at the moment and anticipated work which will require two extra judges in that division. That is the reason for the Bill. Hon. Members opposite think that the whole thing should be organised in a different way. That is a different matter and, of course, we shall pay attention to what has been said on the point.

I am not going to join issue with the hon. and learned Member for Montgomery (Mr. C. Davies), who was a member of the Commission, while I was not, as to what exactly was in the minds of members of the Commission. I can assure him that I have read what they said, and I think they definitely decided that the proposal which the hon. and learned Member thinks a good one would not conduce to the efficiency and expedition of the King's Bench Division. I will not pursue the argument with him, but I will invite him to look at page 94, paragraph 3, and he will at least appreciate what has led him to misinterpret what the members of that Commission meant. The hon. and gallant Member for South-East Leeds (Major Milner) and other hon. Members suggested that this would have been better done by appointing two King's Bench judges. I cannot accept that on the basis upon which we must discuss this Bill and our present organisation. Whether we are right or wrong, we believe that the work of the Probate, Divorce and Admiralty Divison will require two additional judges.

All I can say at this stage and on this Bill is that under the existing statutory provisions for the King's Bench, if the state of the business in that Divison demands extra judges, it does not require a Bill. It would be quite inappropriate in this Bill. It would be possible for two extra judges to be appointed by Resolution. The hon. Member for Nelson and Colne (Mr. Silverman) raised a number of matters regarding County Court judges and so on, which I recognise are matters of importance, but there again, while appreciating the expression which he has given of his views, I can only say that it would not be right to deal with these matters to any extent on the Third Reading of this Bill. Having drawn attention to the rather narrow scope of our discussion this evening, I hope that hon. Members will now give the Bill the Third Reading.

The remaining Orders were read, and postponed.