§ Order for Second Reading read.
§ 7.56 p.m.
§ The Attorney-General (Sir Donald Somervell)
I beg to move, "That the Bill be now read a Second time."
On Second Readings the House approves or disapproves the principle of a Bill. The principle of this Bill is the improvement of the administration of justice. That is a principle which commends itself to every right hon. and hon. Member in whatever quarter of the House they may sit, and it might, therefore, be sufficient for me to state that principle and then sit down. But the House will see that after the words "Administration of Justice" in the Title of the Bill, there are inserted in brackets the words "Miscellaneous Provisions." That also produces the result that this Bill does not lend itself to one of those speeches which may be heard from time to time on the moving of a Second Reading of a Bill which can build itself up to an impressive and signal oratorical peroration.
In order to explain this Bill to the House it is necessary to deal consecutively with a number of somewhat miscellaneous matters. The Bill is based upon certain of the recommendations contained in the 1324 report of a Royal Commission which sat under the chairmanship of the late Lord Peel on the Despatch of Business at Common Law, and also upon certain recommendations of the Business of the Courts Committee. Clauses 1 to 4, which arose out of certain recommendations of the Royal Commission, and a committee under the chairmanship of Sir Archibald Bodkin, which was appointed as a result of the recommendations of that Commission, dealt with quarter sessions. The Commission proposed that, in order to relieve judges at assize of certain cases which now come before them, it would be desirable to extend the jurisdiction of quarter sessions, provided that the chairman or deputy-chairman presiding at those quarter sessions was legally qualified.
The proposals in the present Bill extend the jurisdiction of quarter sessions in cases where there is a legally qualified chairman or deputy-chairman, and they encourage the appointment of such legally qualified chairmen in the cases where they do not exist at present by enabling a salary to be paid to such chairman in cases where their services are not obtainable without remuneration. The work of quarter sessions varies very much in different counties. There are many quarter sessions which have a legally qualified chairman and a legally qualified deputy-chairman, but there are others which have not. There are certain counties in which the work of quarter sessions is not heavy, and where there is not difficulty, and we hope there will not be difficulty in future, in obtaining, without remuneration, the services of a legally qualified chairman.
In some cases the work is such that the duties of the chairman can be performed by men who have other duties which they perform at the same time. There are, however, other counties in which the work of quarter sessions is much greater—and it will be greater as a result of this Bill if the chairman is a legally qualified person—in which it may well be difficult, if not impossible, always to obtain, without remuneration, the services of a legally qualified chairman. That that is so is proved by the fact that in at least two counties they have obtained by Private Bill, power to make payment to the legally qualified chairman of their quarter sessions. This Bill deals with the matter by providing that the 1325 extension of the jurisdiction of quarter sessions provided for in the Bill can be conferred only in cases where there is a legally qualified chairman or deputy-chairman existing and available to preside at the sessions. The Bill also provides for the payment of such chairman by enabling that result to be achieved, not as at present by the promotion of a Private Bill, but under conditions with which I shall deal in detail a little later.
These matters are dealt with in the first four Clauses of the Bill. Clause 1 enables His Majesty, on representations made at the instance of the Lord Chancellor, on application from the court of quarter sessions, to appoint a legally qualified chairman, and those available for consideration for such appointment is any person who is, or has been, a barrister or solicitor of not less than 10 years' standing. Sub-section (4) contains an exception with respect to the Court of Quarter Sessions for the County of London and the County Palatine of Lancaster, which are already provided for in other Statutes.
Clause 2 extends the jurisdiction of quarter sessions to offences mentioned in the Second Schedule, where the court is presided over by a legally qualified chairman. Clause 2 (2) provides that in the case of those persons who have the qualifications set out in Sub-section (3), the court of quarter sessions may appoint their legally qualified chairman without going to the Lord Chancellor. Sub-section (3) is more restricted than Clause (1), which applies to banisters and solicitors of over 10 years' standing. Under Subsection (3) persons who hold or have held certain high offices, including that which I hold at the moment, can be appointed as the legally qualified chairman, and that will bring to those quarter sessions the extended powers of jurisdiction without the necessity of an application to the Lord Chancellor and appointment by His Majesty at the instance of the Lord Chancellor.
Paragraphs (c) and (d) of Clause 2 relate to legally qualified persons who can at present be appointed chairman or deputy-chairman of quarter sessions under the Local Government Act, 1888, the Quarter Sessions (London) Act, 1896, the Lancashire Quarter Sessions Act, 1928. These Acts all provide at present, without 1326 this Bill, for the payment of legally qualified persons. Paragraph (f) deals with boroughs, and gives extended jurisdiction to recorders who are, of course, legally qualified persons, in the case of a borough having a population of not less than 50,000. Sub-sections (4) and (5) deal with cases in which there may be a legally qualified chairman in existence but who may be unable to preside over the court at the moment.
Clause 3 deals with a very technical matter in regard to the power of quarter sessions. Inconvenience arises owing to the fact that a quarter sessions can only adjourn to a definite date. They have to wind up their proceedings absolutely or adjourn to a definite date. It would be more convenient if they could adjourn generally and reassemble when occasion arises to make the reassembly desirable. The Clause is somewhat complicated, and it is complicated for the reason that the distinction between quarter sessions and petty sessions depends upon the fact that quarter sessions assemble only every quarter.
Clause 4 makes provision for the payment of the chairman. As I have already explained, there are many cases to-day where the work is done by legally qualified persons without remuneration, and it is hoped that that will continue. I think there is every ground for thinking that it will continue, particularly in the case of counties where the work is not heavy. There is no reason to suppose that in the future as in the past those who have the good fortune to have legal qualifications will not be ready to do unpaid work as chairmen of quarter sessions, in circumstances in which they are reasonably able to do so, because the work is such that they can fit it in with other duties they are performing, or in cases where they have retired and are competent to do this work and to serve their country in that way. There are, however, cases in which owing to the amount of the work that falls on the chairman it is difficult—and the difficulty will not decrease in the future—to obtain, without remuneration, a legally qualified chairman.
Therefore this Clause provides for remuneration to be paid. Subsection (1) provides that an agreement will be made between the court of quarter sessions for any county or division and the county council that a salary shall be paid to the 1327 chairman or deputy-chairman appointed under the Act, and the county council shall pay to the chairman or deputy-chairman a salary at such rate as may be approved by the Lord Chancellor. Under the present procedure that result can only be brought about by the promotion of a Private Bill. This Clause avoids that necessity. The amount of salary to be paid is made subject to the approval of the Lord Chancellor. The work which will fall upon the chairman differs very much from county to county, but it is desirable that, subject to the extent of the duties, there should be reasonable uniformity as to remuneration. The Lord Chancellor is in a position to know what has been or is being paid elsewhere, and as the salary to be paid will be subject to his approval, that arrangement will ensure that there is reasonable uniformity, having regard to the different duties which the chairman will have to perform. There are certain consequential provisions with regard to Middlesex and Hertfordshire to which I need not specifically refer.
Clauses 5 and 6 deal with assizes and with committal to assizes or quarter sessions. The power to cancel assizes is at present vested in the Lord Chief Justice, with the concurrence of the Lord Chancellor, but the person who is in the best position to know whether that power should be exercised is the Judge who is going on the circuit on which the assize is to be held. Therefore, Clause 5 vests that power in him. Clause 6 makes an Amendment as to committal to assize or quarter sessions by justices. This matter was dealt with under the Act of 1889, which enacts that Justices should commit to quarter sessions in cases where the offence was triable by quarter sessions, unless there were special reasons to the contrary. There is evidence that in some cases justices are too ready to commit to assizes cases which should be tried by quarter sessions, and they do not specify the special reasons why they have diverged from the normal course. The Clause specifies what those special reasons are, namely, a case in which the circumstances make the case unusually grave or difficult, or that serious delay or inconvenience will be occasioned by committal to quarter sessions. Sub-section (3) provides for a drafting amendment 1328 to Section 14 of the Criminal Justice Act, 1925.
Clauses 7 to 12 deal with quite a different matter. They arise out of certain recommendations by the Business of Courts Committee, and deal with proceedings in the Crown side of the King's Bench Division, and in particular with what are called prerogative writs of mandamus, prohibition and certiorari. The whole and sole object of this Clause is to simplify what is of use and to abolish what is obsolete. Those who have at present a right to get a writ of mandamus, prohibition of certiorari will have exactly the same right if the Bill is passed, but the procedure by which they get it is simplified. A mass of quite obsolete matter in the Crown Office Rule will be able to be abolished, and the actual form of the procedure will be intelligible and in accordance with the general procedure provisions with regard to orders of the Court to-day. It will be as intelligible as the normal orders made by a court, whereas at present it is encumbered by a mass of unintelligible archaic matter, much of which is disregarded at present but which cannot be got rid of without authority. The broad effect of it is that the court will be able to make an order in the ordinary form. Clause 9 is concerned with informations in the nature of quo warranto, which are abolished. Quo warranto is a writ taken out by a person who desires to say that somebody is not entitled to hold the office he claims to hold, claims, that is as a legal right, unlike hon. Members opposite who say that we hold offices which they are entitled to hold. It is an extremely complicated and archaic procedure and it is abolished. By Sub-section (2) of the Clause this class of proceeding will now be taken by proper and ordinary process.
§ The Attorney-General
It means "by what warrant." Clause 10 provides power by rules of court prescribing the procedure. Clause 11 deals with the provisions for indictments being filed in the King's Bench Division. At present there are a number of miscellaneous and somewhat obscure cases in which this can be done, but they are extremely rarely used. The Committee recommended that the general power of the High Court to order 1329 a case into the King's Bench Division should be preserved. This is done by Clause 11 (1) (a). They also recommended that the provisions which exist for the trial of certain offences, such as treason committed abroad and certain offences of Colonial Governors, at bar in the King's Bench Division should be maintained. In Sub-section (2) they confer on the court a power which does not exist at present, namely, to direct that in spite of those Statutes such a case can be tried in the ordinary way at assize if the court so direct instead of in the King's Bench Division. The Clause carries out this recommendation. Sub-sections (3), (4) and (5) of the Clause simplify very much the procedure in connection with applications for the alteration of venue. The matter is the subject of extremely obscure Crown Office rules, and also there is what is known as Palmer's Act. This Clause repeals Palmer's Act and gives the High Court power to alter the venue in the interests of justice and makes it quite clear that it can order a change to the Central Criminal Court or to any other assize. Clause 12 deals with outlawry proceedings. These are proceedings under which if the defendant did not appear he could he outlawed. They are very archaic and have not been exercised upon anyone within living memory. They cumber the Crown Office Rules and are very much better out of the way.
§ The Attorney-General
No, not the substance, only two words—" outlawed, or." The exhibition of Articles of the Peace is also an archaic procedure which is never resorted to at the present time, and therefore it is better that it should be abolished, not for the sake of abolition but because it cumbers the ground. Criminal informations at the instance of a private prosecutor have fallen completely into desuetude, but the Committee recommended that the power of the Attorney-General to file informations ex officio should be retained. This was last done in the case of a libel on the Sovereign. It does not of course enable the Attorney-General to make anything an offence which is not an offence. The only effect of it is that in certain cases of 1330 that kind the matter goes for trial without preliminary proceedings before community justices. Clause 13 deals with international conventions affecting the jurisdiction of the English Courts. Under the Warsaw Convention the foreign Powers who were parties to that Convention agreed to submit to the jurisdiction of our courts, and power, therefore, had to be taken under the Statute for enabling rules to be made so that that could be effected. It may be that in future conventions there may be similar clauses though the rest of the Convention does not require legislation. Therefore, it is desirable to have a general power that in cases where under a Convention, a foreign Power submits to our jurisdiction, there should be power to make it effective.
Clause 14 fills up what I think may well have been an accidental omission from the powers conferred by Parliament upon the Probate, Divorce and Admiralty Court for varying orders for alimony and maintenance. At present, in cases where the wife's income is a relevant circumstance in making the order, the alteration of that income does not entitle the order to be varied. Clause 15 deals with a rather technical matter. The Mayor's and City of London Court has an interesting history, but the position, broadly, is that the Mayor's Court, which has jurisdiction in matters of £100, if those matters arise in the City of London, is at present in the anomalous position that if there is an appeal on a question of law it goes to the Court of Appeal, whereas if there is, as there can be in certain cases over £100, an appeal on law as well as on fact, it goes to the Divisional Court. This Clause deals with that situation. Clause 16 is based on a recommendation of the Royal Commission, and provides that a plaintiff may start proceedings in the county court where the plaint is in respect of a matter up to £200. The defendant has a right to have the proceedings transferred to the High Court. It is true that the change is not a very large one, since the county court already has jurisdiction by consent, but it has been found that with the parties at arm's length, consent is sometimes difficult to get. It is hoped that this provision will result in a number of cases with which the county court is well able to deal being started and continued in that court.
§ Mr. Silverman
Is it not, in effect, still a consent procedure, since the defendant is given a power to take the case to the High Court on his own motion?
§ The Attorney-General
In that sense, it is a consent procedure. What the Royal Commission felt was that if you had the two parties at arm's length, it might not be possible to get them together to make the consent order. If the plaintiff is given the power to start proceedings in the county court, the defendant may say that he does not mind the case coming before the county court, and will not object. The provision turns on the difference between a man having the right to object and giving his consent. Clause 17 gives the Chancery Division a power which it had until the County Courts Act, 1934, of remitting cases to the county court even though there had been no application to that effect. It was a very useful power, and therefore, it is being again conferred on the Chancery Division. Clause 18 fills up an unintentional omission from the rule-making power under the County Courts Act. Clause 19 contains some minor consequential Amendments, and Clause 20 deals with the short title. I have already referred to the first Schedule, which sets out the position with regard to additional offences triable at quarter sessions, and I do not think I need refer to the other Schedules at this stage.
Before concluding, I wish to add that I realise, in connection with the administration of justice, the very great importance that is attached by those specially interested in this subject to the matter which really, perhaps, lies at the root of the question, namely, a sufficiency of judges to deal promptly with the appeals and cases which are sent up. This Bill, in extending the jurisdiction of quarter sessions, in conferring the power referred to on the judges at Assize, together possibly with other matters which have been dealt with by rule, will, it is hoped, assist in that direction; but I would like to say that in addition, although, of course, it would be out of order to discuss it in dealing with this Bill, I am authorised, on behalf of the Government, to give an assurance that the Government propose, as soon as Parliamentary time permits, to lay before Parliament proposals for further additions to the judicial bench of the Supreme Court. The Supreme Court, as hon. Members 1332 know, includes both the Court of Appeal and judges of first instance. I cannot, for reasons which every hon. Member will appreciate, deal to-day with the question as to what form those proposals will take, but realising how closely related that question is to the general question of the administration of justice raised by this Bill, I wished to make it clear to the House that the Government have that aspect of the matter also very much in mind.
§ 8.33 p.m.
Sir Stafford Griggs
I am obliged to the Attorney-General for his full explanation of the Bill, but I am sorry he had not time to give us an explanation of the Fourth Schedule, because I was looking forward to a dissertation concerning an "act for proclamations to be made before the exigent be awarded into foreign shires," and many other things with equally fascinating titles. I am sure everybody is glad to cut out as much old wood as possible from the legal tree; but it seems a pity that we have to deal with it in this way by these Measures which deal now with one little bit and then with another little bit, without ever really getting down to a fundamental law reform. This is another example of several we have had dealing with some comparatively small matters. For instance, there are a good many people who are waiting to see the archaism of practising suits by and against the Crown got rid of. They are just as archaic as the many matters which the Attorney-General mentioned in his speech—English informations, Latin informations, petitions of right and so on. When are the Government going to let us have provisions which will make those proceedings the same as all other proceedings in the courts, as they ought to be, and as I think everybody, except possibly the Inland Revenue Department, think they ought to be?
I have very few observations to make on the Bill. The most important part is that which deals with quarters sessions, and I protest against the way in which they are dealt with. It is being made permissive for certain quarter sessions, if they like, to have legally qualified chairmen and deputy chairmen. It is obvious, from what the hon. and learned Gentleman has said, and from what everybody else has said, that it is highly desirable to have legally qualified chairmen and 1333 deputy chairmen. How is one to say to a person who is about to be tried before a court of quarter sessions, "Because you live in a small county you cannot expect to get the same justice as you would get if you lived in the big county next door "? But it is even more serious than that, because here we find the Government saying that it is highly desirable, indeed almost necessary, to have a legally qualified president in a court of quarter sessions and adding, "But we do not insist upon it." The Government, in effect, are saying that the counties can do as they like in the matter. Once the Government have come to the conclusion, as any Government must, that it is highly desirable in modern days, with the vast amount of administration of the law which has to be done by the quarter sessions, to have a fully qualified legal chairman, surely the proper thing to do is to make it compulsory for all quarter sessions to have such chairmen. The Government cannot leave it in the air and say, "Let those who desire to have justice properly administered take the necessary steps to that end, and let others do as they please." But that, in effect, is what the Government are saying by Clause 1 of the Bill.
§ Sir S. Cripps
The hon. and learned Gentleman shakes his head but that is the effect of Clause I. He must agree that after this Measure has been passed, there may be quarter sessions which will not have legally qualified chairmen. It is useless to say that everybody will appoint a legal chairman because they are told that they may do so. There may be people who will refuse to do so and those people will be just in those places where there are dear old gentlemen who do not want to give up the chairmanships which they have held in the past, and those dear old gentlemen are the very people who have caused all the criticism of chairmen of quarter sessions. There is no justification for saying that people are to be tried at quarter sessions by some one who, admittedly, on the face of the provisions of this Bill is not a proper person to try them. If the Government propose to introduce this system—and I am glad it is to be introduced—of having legally qualified chairmen, and deputy chairmen, let them apply it to all quarter sessions. Everybody has the same right to have justice administered promptly, 1334 whatever the county in which they live. We must bear in mind the fact that in many boroughs there are recorders who are fully qualified, and it is ridiculous not to do for the larger units, what is already done for many of these small boroughs.
There is a further aspect of this matter which ought to be considered. Is it not desirable to have some centralisation of the system of criminal jurisdiction in each county, thus getting rid of recorders? They are another archaism. In other days, when transport was more difficult than it is to-day, it was necessary to have all these courts, but under modern conditions it is unnecessary, say in Kent, to have a number of recorders as we have to-day. It would be far better to centralise the system and to have a fully qualified person paid a proper salary to administer the criminal law for the whole county. A judge of the High Court could go down to do it or a chairman of quarter sessions could do it, but you should have a fully qualified person to do the work and get rid of all the small subsidiary jurisdictions which exist at the present time. If that were done in every county it would result in a far more efficient and satisfactory administration of the law. You could then pass on to the quarter sessions practically every criminal matter, and it would save the time of the High Court judges at Assizes and avoid the necessity of appointing additional judges.
The reason why it is necessary to appoint more High Court judges, is because the present judges are out of London so frequently and for such long periods engaged on assize work. There would be a sufficient number of them now, if it were not for that fact. If you could pass on to properly qualified chairmen of quarter sessions a large part, if not the whole, of the criminal jurisdiction, you would save a good deal of the judges' time and enable them to spend more of it in London. If you insist on sending judges into the country to deal with these matters instead of appointing other legally qualified people to do so, then you will have to appoint more judges. It may be said that it does not matter much, provided that properly qualified people do the work. That seems to be the central point, but we are wasting a great deal of the available legal energy by having about the countryside all these little 1335 recorders' courts which are, as I say, unnecessary under modern conditions. I suggest that the hon. and learned Gentleman should consider the centralisation of the criminal jurisdiction in the various counties as a means of economising in judicial effort, as well as ensuring greater efficiency in the administration of justice.
I have not much to say about the details of the Bill. I might complain that the amendments of the law which it proposes, are not more sweeping and that it does not cover a great many other matters, but there is only one small point which I desire to raise on Clause 16. I am not sure whether there is anything in it or not, but I would like the hon. and learned Gentleman to look into it. That is the point of how far this Bill will affect poor persons' procedure and whether it will take out of the ambit of that procedure persons who are at present entitled to utilise it. It seems to me that there is a possibility of people who now get the benefit of that procedure in High Courts being unable to get the benefit of it in the county court, in matters involving between £100 and £200. I am not certain myself whether that is so or not, but I hope the hon. and learned Gentleman will examine the question, because, obviously, it would be a very serious thing to deprive people in this indirect way of the benefit of that procedure. Subject to the points which I have mentioned, we shall not oppose the Bill.
§ 8.42 p.m.
§ Mr. Clement Davies
Like the hon. and learned Member for East Bristol (Sir S. Cripps) I long for the day when the whole system of the administration of justice will be dealt with in one comprehensive Measure and when the Attorney-General will be able, as he said, to do what he is unable to do in the case of this patchwork Bill, namely, lead up to a great peroration declaring that, at long last, we have throughout this land one system of justice administered according to one standard. I hope the day will come when all the courts will be linked together in one great system instead of having a number of small courts with different jurisdictions, with pettifogging little rights in one place which do not exist in another and with little privileges surviving in one county but not found in another. 1336 This Bill is undoubtedly another patchwork Measure, but I am grateful for such small mercies as it provides, and I am still more grateful to hear the Attorney-General say that the Government are considering further additions to His Majesty's Supreme Court. I hope that will mean an addition to the Court of Appeal which, as it is now constituted, with only six Judges in two Divisions, is unable to cope with the appeals which are going up from the lower courts.
It has often been said that delayed justice is the most serious form of injustice. At present there is a long delay before a case comes into court. Then there is the trouble and anxiety of the trial. At last the decision is given and it might seem that that was the end of the matter, but not a bit of it. The loser puts in notice of appeal and there is a further long delay before that appeal is heard. No wonder it has been said that people shun the law like a plague. It is wrong that they should do so. If there is a genuine dispute between two people they ought to be ready to place the matter before a Judge in whom they have trust, and it ought not to be so expensive that people will settle their claims rather than submit them to court. I hope, as I say, that there will be an addition to the Court of Appeal and I hope there will be an addition, which I have asked for repeatedly, to the High Court of justice, especially the King's Bench Division. There are too few Judges and there is too much delay. The delay is not only in London, where cases are still awaiting trial which were set down last year, but also on the circuits. We have still this extraordinary position, that Judges go to small towns to hear cases and do not go to larger towns. Far be it from me to take away privileges from small towns, but I have often heard it said that it is a great advantage to a county to have a red Judge visiting the county town, and if that is so, it ought to be a greater advantage that he should visit the large industrial centres and see to the administration of justice there.
Why is it that there are small towns with only 1,000 or 2,000 inhabitants which still have the advantage of seeing a judge of assize, while there are still something like 3o towns of over 100,000 inhabitants who have never seen one? Why is it that even now, if there is a 1337 dispute, say, in Hull, it cannot be decided there, but the parties have to travel to Leeds or York? I remember that when I was a member of this Royal Commission hearing evidence, when the assizes were sitting at Leeds or York, there was a special train running every morning to carry witnesses, jury, solicitors, and parties there, and thus putting an extra expense upon the parties, when it would have been quite easy for the judge to sit in Hull on the spot and hear the evidence there. I hope these matters will be dealt with by the Government.
The hon. and learned Member for East Bristol said that probably the most important part of this Bill was that dealing with quarter sessions, and I heartily agree with him. The House will, I am sure, forgive my referring again to myself as having sat on the Royal Commission of which the late Viscount Peel was chairman, when I took precisely the same view in regard to quarter sessions as the hon. and learned Gentleman has just stated. I think there should be in every county a Central Criminal Court similar exactly to what we have in London. You have in London a recorder, a common serjeant, and a judge of the City of London Court, and any one of those three can try almost any case that is sent to the Central Criminal Court, except that the judge himself takes certain special cases and cases which he feels, because of their importance or their difficulty or because life is at stake, that he himself should take. That is what I feel ought to be done with regard to the other counties throughout the land, that you should have in each of them a Central Criminal Court presided over by a person qualified to sit as judge of that court, that practically all cases should be referred to him, but that if a case were difficult, or if it involved such important matters that the judge himself ought to take it, and certainly if it involved life, then it ought to be referred to the assizes. In that case, of course, you would be obliged to have a qualified chairman of quarter sessions or a person qualified to preside over such a court.
I thought that system was the better system, and that it ought to be applied equally, because I believe, and I am sure every Member of the House believes, that there should be only one system, that what is right for London should also be 1338 right for Warwickshire, for Northumberland, for industrial areas, and that it should also be applied in its own way to each rural area as well. All of us who sat on that commission agreed that the chairman should be a qualified chairman and that it was time that every county should have a qualified person in the chair. We disagreed with regard to his jurisdiction and with regard to the forming of the central criminal court, but we all agreed that the time had come when there should be a qualified chairman in every county. What will happen now? Each county will decide for itself whether or not it will have a qualified chairman. It is an extraordinary state of things that in this year of 1938, instead of having one system for the whole country, we should allow different systems to prevail, one system in a county which refuses to have its legally qualified chairman and another system in a county which decides to have such a chairman. It is for the county itself, and not for the people of the county to decide. I am not at all sure how it will be done. I take it that it will be done by the justices' meeting, and it is to be left to them to decide, I suppose, perhaps by a majority, which they will have. Therefore, you will have in county "A" an unqualified chairman with a limited jurisdiction, and in county "B," next door, you will have a qualified chairman with an extended jurisdiction. That is an appalling state of things, and everybody is agreed that all archaisms ought to be done away with and that one system should prevail throughout.
I am not quite sure how it will work with regard to a qualified chairman. I have had the privilege of presiding over the quarter sessions in my own county. For the last seven years now I have not been in active practice, but the magistrates in my county two years ago paid me the very high compliment of making me chairman of the bench. I was in active practice for over 20 years. I am not at all sure what I shall have to advise my fellow magistrates, whether I shall have to say to them, "What do you want me to do? I will willingly resign, and then I suppose you will apply to the Lord Chancellor to see whether he will appoint someone. I will tell you this, that the Lord Chancellor himself has promised, and it is in the Bill, that he will give 1339 every consideration to any recommendation that you may make, and the chances are that he will appoint me again." Suppose they say, "The new Lord Chancellor may not know about you, or he may know about you, and that may be a very good reason why he should not appoint you again." What is my county going to do? Will they have the extended jurisdiction, or will they have the limited jurisdiction because they have not got a chairman appointed by the Lord Chancellor? That is the kind of extraordinary position that one gets by patchwork legislation of this kind.
Now I want to pass to another part of the Bill, and to thank the Attorney-General for introducing an Amendment into the present law which was badly needed, and that is in Clause 11, Subsections (3) and (4). I do not know whether the House will recollect that some time ago some trouble arose in Wales with regard to the burning of an aerodrome in Carnarvonshire. Three persons were arrested and brought before the magistrates, and they were committed to Carnarvon Assizes. They were tried there by a judge and jury, and the jury disagreed, whereupon the Attorney-General moved the High Court for the transfer of that case to the Central Criminal Court in London. We never desired to enter into the merits of the matter or to raise any question as to innocence or otherwise, but there was not a single Welshman, and not a Welsh Member of this House, who did not very strongly object to the moving of that case from the county of Carnarvon to be tried in London. We felt that it was an insult to the whole of Wales, and we said so.
The reply of the Attorney-General was that unfortunately, owing to what we know as the Palmer's Act, he had no option in the matter but to ask the High Court that it should be sent to the Central Criminal Court for trial. Whatever may have been the law in the past, this Clause makes it clear that should such circumstances arise again, should it be impossible perhaps to have justice done, or should it be felt either by the prosecution, or, as is often the case, by the prisoner himself that there would not be a fair trial in the prisoner's own county, then, at any rate, the matter need not be moved completely out of the district but can be 1340 referred to the adjacent county. For that Amendment we are all grateful.
I want to turn to the extension of the jurisdiction of the county court. Again, unfortunately, I differ from my colleagues. They were of opinion that the jurisdiction should be extended but extended in just the way in which it is now done in this Bill. The jurisdiction is really left exactly as it was, because it is jurisdiction by consent. We had a considerable body of evidence with regard to this matter, because, of course, you will always get people who will say that the County Court is the poor man's court and that if you extend its jurisdiction you will thereby shut out a great number of persons from being heard on a particular day and their cases will have to be adjourned to another time. I am not in the least surprised to hear "Hear hear's" from my two hon. and learned Friends, who are both, like me, King's Counsel. I wonder how many years have elapsed since they practised in the County Court and realised what was happening. Many years have elapsed since I practised there. In 1934 and 1935 we heard a whole body of evidence from County Court judges on this matter. There was not one judge who objected to the extension of the jurisdiction or who objected on the ground that it would shut out a number of small cases. May I refer to the evidence of the County Court judge who was chosen by his colleagues to give evidence on behalf of all of them, namely, Sir Mordaunt Snagge. In 1903 the jurisdiction of the County Court was put up to £100. Up to that day it was £50. It began at £20. Sir Mordaunt Snagge said:It was said in 1903 that the poor man would be squeezed out, it was said that there would be a lack of accommodation, it was said that the judges would be clogged with small work; and those are the points which I think are substantially taken at the present moment. In regard to the poor man being squeezed out, I am expressing only my personal view that an increase of jurisdiction up to £200 would have no effect whatever in squeezing out the small man. It must, I think, he realised that there are introduced in the county courts an increasing number of proceedings in the course of the year. I think the number is roughly 1,300,000, but of those cases 1,200,000 are dealt with either where there is no appearance by the defendant or where they have been struck out or withdrawn. When you come to consider the judges' work you find that roughly somewhere between 22,000 and 23,000 are what the judges themselves have to deal with.1341 There are 500 courts, and it is easy to extend their number.So far as the poor man is concerned, therefore, it seems to me that you are dealing largely with the poor man who is a defendant, and who is much more concerned with the way in which he is going to pay his debt rather than with contesting the claim which is being made against him; and one remembers that the county courts were passed for the purpose of the easy collection of debts. Now, so far as the small cases are concerned, in my view it would present no serious difficulty to arrange for the poor man's cases, the little cases which are the vast majority, to be dealt with by the registrar.I humbly agree. I notice that in another place the Lord Chancellor estimated—and it was an estimate also given to the Commission—that the increased number of cases that the county court judges would have dealt with, based on the number that are now brought in the High Court, was 750 if the jurisdiction were increased to £200; but see what will happen according to this Bill. Suppose a plaintiff is moved to bring his action in the county court and the amount in dispute is £150. Proceedings go on for a while, and then the defendant, anxious not to have the case heard, does what Members often do after 11 o'clock in this House, and says, "I object." He need not give any reason, but because he says "I object," the judge has no option but to tell the plaintiff that he has started in the wrong court and must go to the High Court. In the meantime, there would be the costs of having to go to a court to which under this Bill the plaintiff was entitled to go.
It is an extraordinary procedure. I would be in favour, as I said in my report, of increasing this jurisdiction to £200 absolutely without any question being allowed of it being taken away from the County Court. But, if necessary, I would compromise to this extent to see how it would work: I would increase the amount to £200, but I would not allow the defendant to be master of the proceedings; if he objected and the reason was a good one, I would let the County Court judge decide whether he should try it or whether the case should go to the High Court. I would remind the House that the increase of the sum to £200 is not really extending the jurisdiction of the County Court because £200 now was worth only £100 in 1903.
There is a much more important point with regard to the jurisdiction of the County Court on which I again differ 1342 from my colleagues, probably because they have not had the same experience of circuit work, of country life and of villages that I have had. I want the County Court judge to be able to deal with cases of libel and slander.
§ Mr. Davies
I think it would be a suitable tribunal to deal with divorce cases as well. We have still this extraordinary position that the undefended divorce can be tried by a High Court judge on circuit, but only in certain counties. The defended case, which costs the parties most, and therefore is a greater penalty upon them, can be tried only in London unless the petitioner is a poor person, who is defined as a person earning £4 or less.
I mentioned this matter when we were last discussing a Measure of this kind. It was proposed to create two new divorce judges, leaving the trial of divorce cases in London whenever they were defended. I gave, of my imagination, a case of a clerk in Newcastle who was in receipt of £250 a year and whose wife was moved to start divorce proceedings against him. If she did so there would be at once a claim for him to provide alimony, a claim for him to provide security for the costs, not only of his own solicitor but of her solicitor, and her counsel, and this amount would have to be increased from time to time as her solicitor incurred more and more expenses, until the day would arrive when he would want a sufficient sum of money to bring her witnesses up to London and for her solicitor and for them to remain in London waiting for the case to come on. All that money would have to be provided by the respondent before he could possibly provide for his own defence. I said, and I think rightly said, that that was a premium upon—I think it is right to say —immorality, because there must be any number of people who say, "It is no use me trying to defend this; I cannot afford to do it, and I will let the case go."
The week after I had said that in the House of Commons a letter came to me from York giving an actual case. What was worse, it was the case of a school teacher. Unfortunately, he had had this charge brought against him by his wife. His salary was less than £250. He was still in charge of the house and of the family; his wife had gone. He wrote: 1343 " I still want to keep my house, I still hope that these proceedings will collapse, but in the meantime I have got to find the money for my wife's solicitors, otherwise I must let the case go, but if I do let the case go I lose my position as a school teacher and will never stand a chance of getting another." He asked me, "What can you do? Where is the justice in this?" I had to reply, "I can do nothing. I have already mentioned your case to the House of Commons, little thinking that it was occurring in actual practice. Unless you can find or borrow the money from your friends to defend this action you will lose your home and you will lose your position." That is the position in which we have allowed things to be, and I quite agree with my hon. and learned Friend when he says that these cases might well and easily be tried by County Court judges.
Let me come to cases of libel and slander. It is said that if County Courts are left to deal with actions for libel or slander we shall get pettifogging cases brought up, but if they are they will be dealt with and finished, and the costs will not be as high. There is nothing so cruel as the tittle-tattle of a village, and there is many a person suffering to-day from tittle-tattle. If such persons do go to see their solicitor he tells them, "You can bring an action." But where? Only in the High Court—or in the Assize Court, with High Court costs—and the litigant can appear only by counsel. Why should not these cases be tried in the County Courts? The very solicitor who was advising the person could appear before the County Court, and only County Court costs would be involved. I am sorry that I have detained the House so long, but these are matters which affect the people throughout the land, they affect every constituency, and I wish only that more Members were taking an interest in the administration of justice in their own constituencies.
§ 9.10 p.m.
§ Major Milner
I am sure that the whole House will agree, as I do, with a very great deal of what the hon. and learned Member for Montgomery (Mr. C. Davis) has just said. What we should all like to see is a consistent and uniform system of law in this country, and while it is true, as the hon. and learned Member says, 1344 that these matters are being dealt with in a somewhat piecemeal fashion, I do not agree with my hon. and learned Friend the Member for East Bristol (Sir S. Cripps) that this is a small matter—I think he said a comparatively small matter—because little by little these various reforms are effecting something like a silent revolution in the law and legal practice in this country. This Bill is no exception to that rule. One has only to turn to the Fourth Schedule to see that there are no fewer than 40 Acts which it is proposed to repeal in whole or in part. Some of them are among the most ancient in the land, beginning with Magna Charta, in which, it is true, only two words are repealed. Among them are Acts passed in the reigns of almost all the Kings and Queens who have sat on the throne of England. Whole Acts, whole chapters, whole Sections are being repealed, and it is true to say that little by little and without I am sure the full appreciation of the general public—and I am very doubtful whether the legal profession as a whole appreciates what is taking place—a silent revolution is being effected in the law and practice of this country.
In the Bill before us drastic alterations are being made in three respects. On the side of the criminal law considerably increased jurisdiction is being conferred upon quarter sessions. They are a very ancient court. It is now proposed to appoint a legally qualified and, in appropriate cases, a paid chairman of quarter sessions. On the civil side, again, cases are to be transferred from the High Court to the County Courts, which year by year are having additional duties thrust upon them. In my experience the County Court judges do most valuable work, but one ought not to forget that in many industrial areas they have a very great amount of work to do, and I should hope that that fact will be taken into account in any review such as has been proposed by the hon. and learned Member for Montgomery. Finally, the ancient prerogative writs of mandamus, prohibition, and certiorari, in which lawyers have revelled for generations—
§ Major Milner
Revelled I say—in which some lawyers have revelled for hundreds of years, are being abolished. Let us admit that they have played their part in obtaining the liberties which the people of 1345 this country possess, and in some instances still have a part to play. This may sound sentimental, but I am sure that practising lawyers and others who have these matters in mind cannot mark their passing without, at any rate, a sigh of regret, I will not say a tear. If the necessities and requirements of the time demand it there is no more to be said, except to congratulate the Lord Chancellor, his predecessors, the Law Officers of the Crown and all those responsible, for the good work which they are undoubtedly doing in bringing these Bills before the House from time to time. The real question is as to the desirability and the usefulness of the proposals in the Bill. I do not propose to go into the proposals in detail, but I would ask whether they have been submitted to the appropriate associations such as the Law Society and the Association of Justices of the Peace, who ought to be consulted before legislation of this sort, which is extremely wide in scope and touches a great variety of subjects, is brought before this House. I should be glad to be informed whether such consultations have taken place.
In regard to Clause 1, there can be no doubt that in the great majority of cases the proposal is, in substance, very desirable. I know of a court of quarter sessions which had, up till quite recently, a very old chairman, a layman. He had sat as chairman for many years and I have no doubt that my hon. Friend the Member for the Wentworth Division (Mr. Paling) knows the court well. I hope he has never appeared in front of it. Very great feeling has been caused from time to time by the injustice alleged, rightly or wrongly, to have been perpetrated there. There is no question that qualified chairmen should be appointed to all courts of quarter sessions. As a member of the legal profession I am extremely pleased, and I think I am supported in this by many hon. Members, including some who belong to the higher branch of the profession, to see that a solicitor of not less than 10 years' standing may be considered as a possible chairman of quarter sessions. That qualification might be made available in a much greater variety of positions than is at present the case.
It always was a mystery to me that the solicitor to the Ministry of Labour and the Ministry of Health should always be 1346 a barrister, but it is always the case, as hon. Members will see by looking through the list of names. I do not see why the solicitor to the Ministry of Labour should not be a solicitor. Largely due to the fact that the Lord Chancellor, who is a barrister, has had a finger in all these appointments, a sort of vogue or practice has grown up of appointing members of the higher branch to those positions. I hope that the Solicitor-General will take note of my view that more provision should be made for solicitors to be appointed to legal appointments.
§ Major Milner
I shall not say what I was going to say about that matter. The Clause I am discussing permits or authorises justices at quarter sessions to make representations to the Lord Chancellor. I think it right that those representations should be made, and that justices should have some say in regard to appointments. I hope that the Lord Chancellor will be guided in the great majority of cases by the representations which they make, Another desirable provision in the Bill which might be extended to other appointments is that the chairman or deputy-chairman shall hold office for such term as may be specified in the appointment, and not at large as is so frequently the case. It is desirable that all public appointments should be made for a specified time in order that they might be reviewed at the end of the time.
I agree with my hon. and learned Friend in regard to the jurisdiction of quarter sessions that the provision in the Bill is very curious. It really means that unless all courts of quarter sessions have chairmen who are qualified within the meaning of Clause 2, those courts shall not have the extended jurisdiction which they would have if they had a legally qualified chairman. I cannot see any justification for that differentiation. All courts ought to be given the same jurisdiction and there should be no differentiation such as is proposed in the Bill. Incidentally, in this matter, the Attorney-General, the Solicitor-General and my hon. and learned Friend the Member for East Bristol, without passing any examination or being appointed or anything of that sort, be- 1347 cause they have been law officers of the Crown, are ipso facto deemed to be legally qualified chairmen of quarter sessions. Perhaps in those circumstances they ought not to have spoken on this matter.
In connection with justices of the peace I would ask the Lord Chancellor's or other appropriate Department to look into the question of the repeated adjournments, particularly in London, of cases which come before petty sessional courts. I remember a case not very long ago which involved no less than five adjourned hearings. Counsel had to be briefed, and it seemed very unfair to the litigants that they should be brought to the court and that the case should be adjourned for the convenience of the lay magistrates. [An HON. MEMBER: "Paid magistrates."] In this case they were lay magistrates, and the case was adjourned five times in a matter which, had the court applied itself to it from the first time it sat until the time it rose, might have been disposed of in one day. My experience of the Provinces is invariably that when a case is commenced it is carried on until it is concluded, except in very exceptional circumstances. I am sure that provision should he made to avoid repeated adjournments, which take place particularly in Metropolitan police courts.
Then extended jurisdiction might well be given to county courts. This is certainly not a matter with which one can deal piecemeal, and I do not think that the extended jurisdiction proposed by the Bill is likely to be taken advantage of to any extent. In the first place, there is a very speedy procedure in the High Court, the Court of Appeal, and so on. In the county court you have to pay a fee varying with the amount of the claim, whereas in the High Court you can issue a writ for £5,000 for a fee of 30s. If I desire to issue a summons in the county court for £50, it costs me £2 by way of fees to the court. Obviously those fees will have to be brought into some relation with one another before we confer extended jurisdiction on the county court. Perhaps here I am treading on delicate ground, but the question of costs in the county court ought to be looked into. It cannot reasonably be accepted that the fee for preparing a brief in a case involving 1348 £50, which is at present £1 11s. 6d., is sufficient when such a case might well be brought in the High Court, when full and appropriate remuneration is paid. Obviously, £1 11s. 6d. cannot be sufficient in a great number of cases. All these matters ought to be taken into account before an extension of £100 in the jurisdiction of the county court is given.
I should like here to make a plea which I have made before in this House. You are now placing more important duties on County Court judges. Is it not possible for the Lord Chancellor when he makes appointments to the High Court occasionally to appoint well-qualified County Court judges? I believe that has been done only on one occasion, by Lord Birkenhead, but we all know that there are extremely capable County Court judges, well fitted to adorn the High Court bench. There may be men who at present hesitate perhaps to accept the offer of a County Court judgeship who would do so if they were assured that in the fullness of time they might succeed to the High Court bench. There are a number of minor points to which I should like to refer, but in general I certainly support the Bill. I hope it may be useful and that little by little we may get together such a body of law and practice that perhaps some form of consolidation Bill, such as we have had in so many other matters, can be presented to Parliament. If practice were unified it might result in such a system of law as my hon. and learned Friend the Member for Montgomery envisaged. In the belief that this Bill is a step forward I have great pleasure in supporting it.
§ 9.29 p.m.
§ Mr. Maxwell Fyfe
I should like to add my meed of congratulation to my hon. and learned Friend on the presentation of this Measure, in which he showed that the simplification of the law could reflect itself fully in the simplification of his speech. But there is one point on which I should like to enter a caveat, and that is the question of the increase in the jurisdiction of the County Courts. In view of what the hon. and gallant Member for South-East Leeds (Major Milner) has said, it is right that I should inform the House that this matter has been before the General Council of the Bar, has been carefully considered by a sub-committee of the General Council and for that sub-committee I have the honour to speak to-night. We were immensely im- 1349 pressed by the Majority Report of the Peel Commission. If the House would bear with me I should like to remind hon. Members of the way in which the majority put it, after careful consideration of all the evidence, which has been so eloquently referred to by my hon. and learned Friend the Member for Montgomery (Mr. C. Davies):In the main the general policy underlying the extension of jurisdiction seems to have been to provide a speedy, satisfactory and convenient mode of trial in actions and matters where litigants of comparatively small means are engaged. We have no doubt that the county courts have adequately achieved the object of this policy. They have done so by providing a means by which the litigant, with however small a claim, can ensure that claim being adjudicated upon by a trained lawyer of independence and experience. What is of equal importance, the judges of county courts, with full and proper realisation of their primary duties have consistently given priority of hearing to cases where the interests of small litigants are involved and where the points at issue (however important they may be to the litigants) are free from complexity and do not involve a protracted hearing. The continuance of this practice and the avoidance of anything that might hamper or interfere with it seems to us to be a matter of great public importance.If I may say so, these sentiments found their echo in the sub-committee of the General Council of the Bar which considered these matters. Despite my hon. and learned Friend's remarks, it is not many years since I spent those happy days waiting in the county court, and I can well remember among the green hills of his native land waiting many a long day for an action under £100 being reached in a country court list—because in the country you cannot put apart a separate day for claims over £10. You may be in Ruthen on the last day of one week and in Llangefni on the first day of the next. You have to deal with every class of case, and there it is extremely difficult to avoid one of two faults. On the one hand, if you have too many larger cases these get put to the end of the list and are not reached; on the other hand, if the county court judge gets impressed by his larger cases he hurries over, or puts on one side, the smaller cases, which are of extreme importance to the persons concerned. Therefore, I respectfully suggest to the House that the extension of jurisdiction of the county court should be made only when we are absolutely certain that the small cases of poor litigants will not suffer in any way. With great respect to the hon. 1350 and learned Gentleman I suggest that his proposal of leaving it to the registrar, who is busy with the administrative details of the court, is not one which small litigants will find satisfactory.
With that in mind I think one can take the proposals of the present Bill as a reasonable compromise. As has been stated, it is estimated it will add some 750 cases in the year. That is some dozen cases for each County Court judge. That will not make any appreciable inroad into the time which should be given to the smaller cases which I have mentioned, and it will in certain cases provide a mode of trial which the parties desire. I, therefore, do suggest that this House in considering what seems superficially attractive, that is, allowing people to go to the cheaper courts, should remember the persons for whom these courts were primarily created when they were instituted.
With regard to the other portion of the Bill, which deals with criminal procedure, I rather join issue with those who would cut out the visits of the High Court judges to the various parts of the country. I cordially agree with my hon. and learned Friend when he suggests that they should visit the main centres of the country, but it is of vital importance, not only that local justice should be administered well, but that local people should see and be able to observe justice being administered in the best possible way in which it is administered in this country; and that opportunity is given by the visits of the judges to the various circuit towns. But a serious question is raised by the hon. and learned Member for East Bristol (Sir S. Cripps) when he says that this, almost for the first time, allows a class of court to choose and decide its own jurisdiction. That is something for which I myself had some difficulty in finding any precedent, and it does raise the question whether there ought to be compulsion in the way of having qualified chairmen, or whether there is some method by which that problem can be dealt with. I should like to put before the House for its consideration the two alternatives.
In the first place, I think we all agree that even the present work of quarter sessions ought to be done by qualified chairmen. I cannot imagine how anyone can sum up to a jury in a case of 1351 false pretences or receiving stolen goods—matters which come up every day—unless they have had a legal training and have studied the case in the light of legal knowledge. It is sometimes a matter of very great difficulty even to those who have that training. I admit that in my own case, and I cannot see how it could be done without those advantages. Therefore we start with the assumption that legal chairmen are desirable.
As regards compulsion, there is this to be said on the other side. I think that some 48 out of 65 courts of quarter sessions already have legal chairmen, so that we should be dealing with, roughly speaking, about 20. Either we could deal with the matter in their case by compulsion, or we might deal with it in this way. County quarter sessions still have some administrative work. As the hon. Member opposite will realise, there is still the Standing Joint Committee, for example, where the quarter sessions join with the county council in dealing with police business. I can quite imagine the county quarter sessions saying, "We have a tradition of public service. We will be prepared to take this desirable course if we are given the choice of a chairman ourselves." There is a great deal to be said for that point of view, and, if it were permitted that the county quarter sessions should choose someone who would then be approved by the Lord Chancellor, it might be that compulsion would be entirely unnecessary because the whole of these 17 councils would at once elect legal chairmen.
Obviously, it is quite possible that there are adherents of both views, but, looking back at the work which county quarter sessions have done, I think that all of us who are professional lawyers, and especially those who, like myself, are paid salaries as Recorders, realise to the full the work that is done by so many people without payment at all, and we are quite prepared to give consideration to that point. I put this forward as a suggestion which might obviate the necessity for compulsion if quarter sessions were given the right to elect subject to approval by the Lord Chancellor.
With regard to the general position, I have, I am afraid, rather a distrust of generalities in schemes for the reform of something which deals with such a vast 1352 amount of detail as the administration of justice. The main practical problems with which we are dealing here are the jurisdiction of the County Courts and quarter sessions, and the endeavour to clear away anomalies and archaic memorials of other times. In this we are doing a work of immense practical service. I think it is essential that we should attempt to see each of these problems steadily, to see it all, and to see these reforms in relation to the general administration of justice, as my hon. and learned Friend has done to-night in the closing words of his speech. If we can view these problems inductively and work on the practical problems that we know lie around all the fringes, and at the same time try to see how these work into the general problem, I think our administration of justice, of which I personally am intensely proud, will go to that greater strength which hon. Members in all parts of the House want to see it reach.
§ 9.41 p.m.
§ Mr. Dingle Foot
So many eminent members of the legal profession have taken part in this Debate that it seems almost an act of impertinence for one who still only wears a stuff gown to say anything at all. The only qualification I have for doing so is that I think my experience of County Courts and quarter sessions, though no doubt very much less extensive, is probably more recent than that of the hon. and learned Gentlemen who have already addressed the House. I think everyone must welcome, so far as it goes, the change that is to be made with regard to quarter sessions, because no one who has any experience of quarter sessions could fail to be struck by the disparity in the standard of justice that is administered as between one county and another. It frequently happens that someone of legal experience acts as chairman of quarter sessions, and in such cases the quarter sessions constitute an admirable tribunal, so that in most cases there is no need for any change at all so far as their constitution goes. But undoubtedly there are other counties which are not so fortunately placed, and where the administration of justice is not nearly so satisfactory. I think that quite a number of hon. Members who are members of the legal profession will share the views of the last speaker when they have heard a chairman without any legal qualifications en- 1353 deavouring to sum up to a jury in a case of considerable technical difficulty. The hon. and learned Member referred to the number of counties which still lack qualified chairmen. Some figures were referred to in the report of the Peel Commission which I think are rather interesting. The commission say:The Hanworth Committee found that 32 out of 65 chairmen and 39 out of 57 deputy-chairmen, or a total of 75 out of 122, were legally qualified; according to the statistics with which we were furnished by Sir Ernest Hart, on behalf of the Society of Clerks of the Peace of Counties the corresponding figures are now 48 out of 67 and 55 out of 69, or a total of 103 out of 136.That means that even at the present time, although the figures reveal some improvement, there are 33 chairmen and deputy-chairmen who preside over trials at quarter sessions and who have no legal qualification of any kind. But, even if we take the figures that are given of those with legal qualifications, they do not, of course, mean that they have legal qualifications in the sense of this Bill. It is further pointed out that some of them, although 'they may actually be members of one or other branch of the legal profession, have very little experience of the actual practice of the law.
§ Mr. Foot
If the hon. Member had had a little more experience of quarter sessions, he might doubt that as well. Even with this Bill it may still be possible for people to be brought up at these tribunals, to be tried on very serious charges, and to be liable to be sent on very long terms of imprisonment, yet the person presiding over the trial may have no legal qualifications. In a country where we pride ourselves so much on our administration of criminal law, that will still be a glaring anomaly, and I hope it is not too late for the Law Officers to give attention to the hon. and learned Member who has just addressed the House and see whether it is not possible for every county to have a qualified chairman for its quarter sessions. Undoubtedly it will otherwise happen, as the hon. and learned Member for East Bristol (Sir S. Cripps) said, that those counties, in particular, which are most in need of reforms will not avail themselves of the machinery provided under this Bill.
My hon. and learned Friend the Member for Montgomery (Mr. C. Davies) put 1354 forward a very eloquent plea in favour of extending the jurisdiction of county courts. He suggested that various other classes of action, such as libel and slander, should be brought within the scope of the courts. I am not so much impressed by the possibility of poor men's cases getting elbowed out, but I am rather more impressed by the other reason given by the Peel Commission, who referred, on page 68 of their report, to what sometimes happens to cases of length and difficulty when they are tried in the county courts:Cases of length and substance cannot as a rule be started until a great quantity of small work has been got through—frequently not until after the midday adjournment. If such a case is left unfinished at the end of the day it can seldom be resumed on the following day (owing to that day's quota of cases being already complete) and has to be left part-heard until a later date—a most unsatisfactory feature of any trial.I think there are a good many members of the legal profession who can confirm that. If you go to county courts you may arrive at 10 o'clock, you find that the court does not sit until half-past 10, and then the judge has frequently 50, 60, or, as I have known, 75 judgment summonses in his list; and it frequently happens that cases which are third or fourth in the judgment list do not come on at all, and are part-heard. I heard recently of a case which it was necessary to adjourn when it had been part-heard, not until the next day, but for three weeks. That is a most unsatisfactory way of trying any case.
We should have inconvenience of that sort in a much greater degree if we were to extend the jurisdiction of the county courts greatly without altering the system of the county courts. What the hon. and learned Member has said has great force, but it must be joined with some alteration of the system. There is just as much need for more County Court judges as there is for more High Court judges. We have had a Commission on the despatch of business in the High Court. It is just as urgent that we should have a Commission on the despatch of business in the county court, because that affects a larger number of people.
I do not think anybody has referred as yet to Clause 12, which deals with the abolition of outlawry proceedings. There is not much to say about that. I only hope it will not have any effect on 1355 the Bill we take at the commencement of each Parliamentary Session—the Bill for the more effectual preventing of Clandestine Outlawries. The hon. and learned Member for East Bristol referred to other dead wood which he would like to cut away. He referred in particular to actions between the subject and the Crown. I listened to him with great interest when he said that. I see the hon. and learned Solicitor-General in his place. He may remember that last Session I addressed to him a question on the Crown Proceedings Bill, and asked whether it was his intention to introduce it in the present Parliament. He refused to say so then. I hope that he and the Attorney-General have reconsidered the matter, and that we may have a Measure which is very long overdue before the present Parliament comes to an end.
§ 9.52 p.m.
§ Sir Geoffrey Ellis
May I call attention to one small point—not exactly a Commitee point, because it goes to the root of the Bill? In one quarter sessions, where I have the honour to be one of the deputy-chairmen—West Riding—we always sit with two courts, because it is necessary to do so. Therefore, under this Bill I fail to see how it is possible for a qualified deputy-chairman to be able to sit in the second court when a chairman is sitting in the first court. Under the Bill a deputy-chairman, if chosen, may sit, provided he is not a layman, in the absence of the chairman. I would ask my hon. and learned Friend whether he will consider inserting in the Bill provision for the nomination of a panel of deputy-chairmen, so that at such a sitting as I have mentioned it will be possible for the chairman and deputy-chairman to sit at the same time in two courts.
It must be pointed out, too, that it is not sufficient to have one chairman and one depuy. It has happened on our own courts more than once that both the chairman and the senior deputy-chairman have been away together. It has been our practice for a panel of deputy-chairmen to be nominated every year to meet that situation. I suggest that the Act should provide for a panel of qualified deputychairmen—I do not wish for the quality in any way to be altered—so that in those cases the deputy-chairmen would be capable of acting, and would be qualified chairmen in every sense. I do not want 1356 to go into the merits of the Bill to-night, because it is obviously a thing of shreds and patches, and it is all we are going to get, but we want to see that the shreds and patches shall be such that the Measure will work fairly all round.
§ 9.55 p.m.
§ Mir. Silverman
I propose to confine what I have to say to Clause 16, which deals with the extension of jurisdiction of County Courts. I cannot help feeling that the Clause will be illusory in effecting the object for which it is designed, and that in practice it will not extend the jurisdiction to the County Courts at all. It has already been agreed that, although not voluntary in form, it is voluntary in practice. Unless both sides desire the case between £100 and £200 in bulk to be tried in the County Court, it will not be tried in the County Court. The mere application of the defendant, apparently at any stage of the proceedings, will be sufficient to take it from the County Court into the High Court. Although it is fair to add that the Clause provides for the making of rules by which the time for making such application may be limited, the Clause as it stands does not even suggest what that time shall be, and it may be at any stage.
One hopes that the rules will be so framed as to compel the defendant, if he wishes to exercise his option to object to the continued proceedings in the County Court, to do it promptly at the commencement of the action, say, within not more than seven days of the service of process upon him. It would be manifestly unfair to allow a plaintiff to incur all the costs of the case in the County Court right up to the day immediately preceding the trial, or possibly the day of trial itself, and then, at that stage, to allow the defendant to say, "Thus far and no further. Now the proceedings shall be transferred to the High Court and you must begin all over again." I am sure that that is not the intention, but even so, the rules are so limited to compel the defendant to make his selection very early, that it is his ipse dixit which will decide the question. In a case in which the defendant finds it inconvenient, or perhaps too convenient to the plaintiff, that the case shall proceed in the poor man's court where costs are somewhat less than in the High Court, he may, 1357 merely by entering an objection and without advancing any cause or reason, bring this to an end.
I suggest to the hon. and learned Gentleman that if the extension of the County Court jurisdiction is to go no further than that, there is very little reason why it should be in the Bill at all. In effect it will not alter the existing position at all. It was suggested earlier by the Attorney-General that it was intended to cover those cases where the parties were so much at arm's length that they could not even agree about the court which should settle their disputes. Those of us who have been in practice for any length of time know that we are often very awkward ourselves, and that even oftener our opponents are very awkward. I doubt very much whether the awkwardness extends as far as this, that the solicitors for the proposed plaintiffs write to the solicitors for the proposed defendant, and say, "Dear Sir, As we have failed to settle our difficulties in other ways, we now have instructions to commence proceedings, and in order to get an adequate, cheaper and speedier trial we propose to commence these proceedings in the County Court. So that we may do so with your consent, will you please let us know by return whether you consent or object."
I think that cases where that would occur would be so few and far between as hardly to justify or necessitate legislation to meet them. In other words, I am saying that there are no cases which, as a result of this legislation, may be tried in the County Court which may not be so tried without this legislation at all. If that is so, the claim that has been made, that the jurisdiction of the County Court should be extended, cannot be made out. I would like to see the whole question of the jurisdiction, scope and character of the County Courts thoroughly overhauled. I cannot see, and I am sure that very few people can see, any ground for treating them as inferior courts at all. The matters which they now have to try are of the very greatest importance to the litigants who go to the County Court with them. It may be that the amounts involved are often small, but the law involved is highly complicated. The Rent Restrictions Acts and the Workmen's Compensation Acts may be instanced as examples of the most highly technical Statutes we have upon the Statute Book, and they have given 1358 rise to as much difficult litigation as any other Acts upon the Statute Book. The matter is at least as important to the litigant in the County Court as it is anywhere else.
I would like, therefore, to see County Courts made into courts of equal jurisdiction with the High Court and the scope of their jurisdiction much more widely extended than is even claimed to be achieved by this Clause. I would like to see the bench in the County Court so strengthened that the decision of a County Court judge should be as valid and as binding as the decision of the judge in the High Court. I do not agree with the suggestion that was made by my hon. and gallant Friend the Member for South-East Leeds (Major Milner), when he said that he would like to see the way open for the promotion of County Court judges to the High Court bench. Why? I want to keep really good County Court judges in the County Court and not to have the County Court bench regarded as the last refuge of the second best or the last hope of a barrister whose success at the Bar or in other directions has not been quite what he wanted or hoped it would be. I certainly grant the implication behind what my hon. and gallant Friend said, that the future career of the County Court judge ought to be so safeguarded as to satisfy the legitimate ambition of first-rate men, but that ought to be done otherwise than by transferring them to an atmosphere where their skill and power are lost to those who need them at least as much as, and perhaps more than, litigants in the High Court.
I did on another occasion support what the hon. and learned Gentleman the Member for Montgomeryshire (Mr. C. Davies) said about the extension of the jurisdiction of the County Courts in divorce cases, and although I do not want to deal with that matter now, I still think that his view is the right view. The whole question of costs ought to be reviewed in the sense of making justice more accessible to those who can least afford the high cost of litigation even in the County Court. I should like to see an end to the system which gives the solicitor greater costs for doing less work. In the County Court the solicitor has the right of audience, but he seldom exercises it because in the main he gets very much less out of it than if he prepares 1359 a brief, for, it may be, some experienced or inexperienced junior counsel. The solicitor gets a much higher fee for preparing a case for that junior counsel than he would get if he pleaded the case himself. While that premium exists it is inevitable that the profession will avail themselves of it. I think the whole system of costs in all the courts, particularly in the County Court, should be reviewed and revised. With all these alterations, amendments and so-called reforms, you are not going to achieve the main purpose that you have in view, namely, the making of justice more accessible to the poor people, unless you are prepared to deal with the question of costs in a fundamental way.
In dealing with all these matters we ought to proceed with due caution, slowly, step by step, but when I look at some of the matters which are repealed by Clause 4 of the Bill I think the hon. and learned Member for West Derby (Mr. Fyfe) would be slow to claim that reform had been over-hasty. Some of them go back at least 400 years. In one small instance even Magna Charta is altered. Certainly a number of the other provisions have been dead wood for a long time. The complaint of those who would like to see the administration of justice made quicker and more efficient is not that we have gone too quickly or that we are going to quickly in this Bill but that we have been too timid, and that the vested interests that stand in the way are still too great to permit of effective and fundamental reform. I hope that that condition of things will not continue long and that opportunity will be taken to have a complete overhaul, and that we are not far removed from the time when a comprehensive scheme will be brought forward as a result of which the administration of justice will become a simply operated and efficient instrument, equally available to all, whether they be rich or poor.
§ 10.10 p.m.
§ Mr. Alan Herbert
Into this nest of King's Counsellors and professional lawyers I hesitate to thrust my head. I should, however, have liked to have made some small contribution on the question of costs, had it not been so ably dealt with by the hon. Member for Nelson and Collie (Mr. Silverman) and others. I was very 1360 much interested in the high praise of Clause 1 by the hon. and gallant Member for South-East Leeds (Major Milner). It reminded me of a statement made by the late Lord Darling—I hope I can quote it correctly—who, when he was asked to what he attributed his success in the law, said that he attributed it to his early days when he practised before quarter sessions and learned the law of the land from those who administered the one by virtue of their owning the other. I am glad that that condition of things is to be removed. I was also interested in the remarks of the hon. and learned Member for East Bristol (Sir S. Cripps), particularly when he spoke about assimilating procedure in the case of actions against the Crown to procedure in the case of actions between one private party and another. I have often wondered what would happen if all industry were to be nationalised and come under the Crown, which would mean that everybody, whether journalists or laundrymen, solicitors or otherwise, would become servants of the Crown. Therefore almost all legal actions would be actions against the Crown. I am glad that the hon. and learned Member has anticipated and met the difficulty.
The hon. Member for Dundee (Mr. Foot) referred to Clause 12, and I wish he had dealt with it more exhaustively. That Clause refers to the Fourth Schedule in which two of the few remaining words of Magna Charta are to be repealed. There remained only about 35 words of Magna Charta, and I am sorry to see that they are to be reduced to 33. The remaining Sections of Magna Charta—I speak from memory—are three. One says that no man shall be tried except before his peers by process of law, whereas we all know that nowadays he is nearly always tried by the Milk Marketing Board, or a secret committee of his club, or a court of summary jurisdiction. The second Section which survives says that all debts owing to the Crown shall have precedence of others. The third Section deals with costs, and there is a famous clause which says that no man shall sell, deny or delay justice of right. As hon. Members, however, have pointed out, that although we may not sell justice in the sense that justice can be corrupted or denied for money, there is no doubt that we do sell justice, and sell it very dearly.
1361 On the whole, I agree that this is an admirable Bill, and I only wish formally to express regret that it does not contain certain things that I should like to have seen in it. I wish to mention two points arising under the administration of the Matrimonial Causes Act, which Parliament passed last year. I should not be so presumptuous or foolish as to raise any controversial point on that legislation in the absence of those who opposed that Act—though I see there are two of them present—but I am still receiving heartrending correspondence from those people who had high hopes from the passage of that Act, and who complain that in certain respects the intentions of Parliament are not being carried out.
The first point is with regard to the provision which gives a right to sue for a dissolution of marriage where the respondent has been of unsound mind for five years. During the debates in Committee we heard a great deal from doctors about their possibility, or doubtfulness, of a doctor being able to say in every case that a person was incurably insane, but now the British Medical Association in a recent report have raised two new points. In the "British Medical Journal" it is said:The Council has considered the ethical position of the medical man in charge of an insane patient … when approached for an opinion by a prospective petitioner, and the legal position of the medical man in the event of a patient whom he has stated to be incurably of unsound mind subsequently recovering. The Council is advised that any opinion expressed by the medical practitioner as to the patient being of unsound mind would not be covered by the protection given under the Mental Treatment Act or the Lunacy Act; that the safest course would be for the practitioner to decline to express any opinion save by the direction of the court, but that he might place his records of the case at the disposal of an independent medical expert nominated by the petitioner. As regards the ethical aspect of the problem, the Council considers that the medical man responsible for the care of the patient would not be justified in giving an opinion except at the express direction of the court. The adoption of this attitude would, however, make the Act unworkable, and the Council feels that the most satisfactory way out of the difficulty would be the introduction of amending legislation.I will not go further with that matter. I am not endeavouring at all to raise any controversial point. I am merely suggesting that it may be that the intentions of the Act are not being carried out, and if there is any way by which this matter can be put right I should be glad. The 1362 other point is that there are many cases—. I have had thousands of cases—in which the husband or wife has been deserted and when the case comes before the court they find that through the fault of the magistrate some years ago—not through any fault of this House—who quite unnecessarily and wrongly inserted in the separation order what is called a non-cohabitation clause, they are not entitled to divorce. It is a very technical matter which was much discussed during the passage of the Bill, though not very much in this House. The reason I am mentioning it now is that a great many accusations are being made that this House allowed this matter to slip our notice. I can assure the House that it was discussed by the many hon. and learned Members who were responsible for the preparation of the Bill, and that it did not miss their attention. I never quite understood the discussions, but my hon. and learned Friends will remember them. This is the only opportunity one has for raising these matters, and rather diffidently I suggest to my hon. and learned Friends, not that they should make an answer to the question now, but that they should consider it.
The third point which has been raised to-night is about the costs of justice, an extraordinary phrase when one comes to think of it, especially when one recollects the passage in Magna Charta:To no man will we sell, to no man deny, to no man delay justice or right.I would not venture to intervene on the delicate question of the fees and rewards of learned solicitors and barristers who, after all, are entitled, like the rest of us, to fair remuneration for their arduous labours. It would be very easy to read out a solicitor's bill of costs and raise a good many laughs, but far be it from me to do any such thing. But the costs of solicitors and the fees of barristers are not the only costs of justice. There are some strange things called court fees, that is to say, the charges made by the Crown for permission to enter the courts of the Crown and obtain justice. I looked up a few before coming into the House. There are: Affidavits, each filing, 2s. 6d.; each swearing 2s. 6d.; alimony (application for appointment, each hour or part thereof) 10s. There is then a very remarkable charge—hearing of trial of cause, first five hours £2, each additional complete hour, 10s. That seems to be 1363 a very queer provision. Surely, the fee for justice should be like the fee for postage; that is to say, one should pay the same fee, however long the journey may be. Other charges are: Questions for jury, 10s.; settling questions for jury, 10s.; resettling questions for jury, 10s.; appeal to Court of Appeal, filing notice and entering, £7; notice of entering, £3; and so on. I understand that the court fees in a small action, the costs of which may be £75, may amount to £10 or £12. A very large proportion. Although such costs may not fall very heavily on richer litigants, they may be very heavy upon a poor man. Under Section 99 of the Judicature Act, 1935—and I would remind hon. Members that one of the purposes of this Bill is to amend that Act—the rules of court may be made for regulating any matters relating to costs agreed to by the High Court. But, as usual, the Treasury has a cautious word, and by Sub-section (2), no rule of the Supreme Court which may involve an increase of expenditure out of public funds, shall be made except with the concurrence of the Treasury.
Therefore, my hon. arid learned Friends are entitled to say that it is no good speaking about the Rules Committee because the Treasury will step in. I simply express the hope that it may now be possible, I do not say to look into the question of the rewards of barristers and solicitors, but to look into the question of court fees. It occurs to me that it might be possible to effect a reduction in the court fees in the case of persons with an income of, say, under £500 a year. That, after all, would only be an extension of a principle which we have already in the case of poor persons' litigation, a subject on which I would now like to say a few halting words. The poor persons' arrangements are a matter on which the House and the country are entitled to feel a very high degree of pride.
I am glad of this opportunity to render some tribute to that organisation of which I have heard a great deal in the last few months. Not even those who benefit from it realise what an admirable service it is. Solicitors and barristers give their services free and sometimes obtain the services of the highest counsel —men of the calibre of my hon. and learned Friend opposite—for nothing. 1364 Even the clients who benefit do not realise that they are getting these advantages for nothing. Very often the lawyers engaged receive more abuse than gratitude, but that is the way of life everywhere. I should like to take this opportunity of saying how fine that organisation is and we ought all to render thanks for it, but it applies only to a certain limited class of citizens. I do not think it is realised how poor a person must be before he can take advantage of the poor persons organisation. He must have an income of not more than £2 a week or, in special cases, £4 a week—I do not understand what the special cases are—and he must not possess more than £50 or, in special cases, £100. But above those limits, there must be many people who cannot, owing to lack of funds, bring their cases into court.
I know how many thousands have applied as poor persons under the Act to which I have referred and I am led to believe that there may be many thousands more, just above the limits I have mentioned and still unable to bring their cases to the courts. What the remedy is, it is not for me to suggest. It would be easy to make a suggestion to "raise the figures," but that would be hardly fair, because the lawyers are entitled to earn their bread like the rest of us. But there is one small practical remedy which has already been suggested in the admirable speech of my hon. and learned Friend the Member for Montgomery (Mr. C. Davies). That is to alter the rule concerning the hearing of divorce petitions at Assizes. I gather that the chief reason for the present arrangement is the ancient idea that divorce was a kind of sacred myth which could only be administered by high priests in the capital of the country. I know it is a difficult branch of the law, but I do not believe that it is as difficult as all that. It may be that behind the cheering announcement of the Attorney-General about the appointment of new judges, there lies, although he did not reveal it, some truth or forthcoming truth which will satisfy my hon. and learned Friend the Member for Montgomery and myself. I hope that is so and I will say no more about it.
I hope that my hon. and learned Friend with whom I have had such happy associations in the past will not think me presumptuous for putting forward these 1365 few points, and that no hon. Member will think that I am trying to raise any new controversial question concerning the Matrimonial Causes Act. Believe me, I have had quite enough of that. But I do feel some responsibility to press, in whatever way I can, the suggestion that the Act to which I refer, having been passed, should, as far as possible, be made to have the effect intended by Parliament. So far, I believe that is so. As for the question of the cost of justice, I hope that my hon. and learned Friend will listen not to what I have said, but to what has been said by far more serious and learned gentlemen. It is a mockery for Parliament to confer new rights upon the citizens and then to stand idly by, and see them denied those rights simply because they have not the necessary funds.
§ 10.30 p.m.
§ Mr. Ede
I apologise for intervening in this discussion between lawyers, because even the hon. Member for Oxford University (Mr. A. Herbert) reminded us two years ago that he had taken a degree in jurisprudence at Oxford, and though he sometimes pretends to be an innocent layman wandering in the legal jungle, it is clear to those of us who have followed the book that he wrote—I think it was called "Misleading Cases "—that he has a very considerable knowledge of the intricacies of the law. I approach this matter as a layman, and after listening to the wonderful praise that lawyers have been showering to-night upon their own profession and the way in which it works, I am more than ever convinced of the truth of the saying of Douglas Jerrold's that self-defence is the best of all laws, and for this reason it is the only one the lawyers did not invent. I do not feel to-night that there is any need to feel at all excited about or satisfied with this Measure. I merely want to deal with the one Clause of it with which I have made in the past fairly frequent acquaintance, and that is the Clause dealing with the chairmanship of quarter sessions.
The first chairman of quarter sessions with whom I sat had been a judge in one of His Majesty's Dominions, and immediately after lunch I noticed that the clerk of the peace had built up a very high tower of books. Half an hour later he knocked them over, and the chairman leaned over and said, "I was not asleep 1366 that time; I had merely closed my eyes." There is nothing in this Clause which ensures that in the courts of quarter sessions, which now have extended powers conferred upon them by recent legislation, a justice shall be able to hear even the police, except when they speak in a loud tone of voice. There is no power to remove such a person, and anyone who has tried to remove a chairman of quarter sessions knows how difficult it is, how, once an appointment is made, it appears to have been made for life. I would have hoped that this opportunity should have been taken of ensuring that this very high and responsible office should be held, even in those cases where the person is not legally qualified, by someone who is at least physically qualified for the post, because there is nothing worse for the administration of justice in this country than for litigants to go away feeling that their case has not been heard and being convinced by some questions that have been put, after learned counsel on both sides have finished and the chairman of the bench has taken a hand, that the chairman has been unable to follow the proceedings in a way that has convinced them that their full case has been heard by the person who will have a very considerable influence in settling it.
I regret that this Clause is not made compulsory. The hon. and learned Member for the West Derby Division of Liverpool (Mr. Fyfe) made the suggestion, which seemed to me quite a good one to put in front of the courts of quarter sessions, that they should be allowed to nominate a chairman and a deputy-chairman, but that before such a person could act, he should receive the approval of the Crown in the way indicated in this Clause; and until that is enacted, even where you get chairmen who are, technically, legally qualified, you will still have a large number of those people who have taken a law degree at one of the old universities, have been called to the Bar, and have never even attempted to practise. I do not regard such a person as that, even though he may be over 80 years of age, as having acquired a sufficient amount of legal experience to entitle him to be regarded as a legally qualified chairman of quarter sessions. I hope, therefore, that at a very early date, if it cannot be done in this Bill, the appointment of a really legally qualified chairman will be made 1367 mandatory upon quarter sessions. I regret, also, that no attempt is made in this Bill to impose a limit on the number of justices sitting at quarter sessions. My experience is that on the first day there is a very large number of people in attendance. Generally the junior justices secure the seats because they are more athletically qualified, and the senior justices stand at the rear until such time as some of the junior justices have gone off to the city.
In recent years a limitation has been imposed on the number of justices who may sit on appeals heard at quarter sessions. There was a time when it was said that the London Quarter Sessions heard appeals from the Metropolitan stipendiary magistrates by public meeting because so many of them were in attendance. Now I believe, the number is limited to not less than five and not more than seven. The Rating Appeals Committee also consists of a fixed number, and a continuous body of decisions can be built up by such a committee. That makes the task of going in front of it far less of a gamble than it used to be. I suggest that the time has come when some limit should be placed on the number of justices who should be allowed to sit at quarter sessions in any one court for the transaction of business. I do not think it is a good thing that a case should be heard by 5o or 60 people. It is impossible, even in the simplest case, to collect the opinion of the court without retiring. The limitation of the number to something like II as a maximum would be a good thing and would assist in the administration of justice and in convincing people that justice is really being done. I know the difficulties that there are at the moment in persuading courts of quarter sessions that they ought to adopt the principle of having a legally qualified and paid chairman. I think that in the more populous counties it will be impossible in future to get persons of sufficient experience unless they are paid. I, therefore, hope that at an early date provision will be made, if possible in this Bill, whereby the court of quarter sessions shall be compelled to have a legally qualified chairman and that, where it is necessary, arrangements shall be made to pay him an adequate salary.
§ 10.39 p.m.
§ Mr. Lyons
I wish to express my agreement with this Bill, which, I think, will 1368 go a long way to remove some of the difficulties that exist in our system of justice. I would ask the House to consider what the result of Clause i will be. The point was first made by the hon. and learned Member for East Bristol (Sir S. Cripps), and was taken up by a number of speakers who followed him, that this Clause merely empowers a court of quarter sessions, if it so desires, to apply to the Lord Chancellor for the appointment of a chairman or deputy-chairman possessing certain legal qualifications. I would ask those responsible for this Bill to consider whether it is not possible to lay upon all quarter sessions the duty of making an application to the Lord Chancellor for a properly qualified chairman to be put in charge of the proceedings. As things stand it may well be that some counties in which justice is not, perhaps, too well administered will decide deliberately not to approach the Lord Chancellor, but to carry on with a chairman who is without legal qualifications. The Clause gives only a right to apply for a skilled chairman.
There is one thing above all others which, I believe, all sections in this House will join in proclaiming, and that is that the most friendless, the most humble or the most lonely in this country should have a right to the same standard of justice in our courts. Instead, there may be counties which will retain a kind of second-grade standard of justice. Many of us have watched for years the kind of justice which is sometimes meted out in courts of quarter sessions where there is no chairman with legal qualifications. That state of affairs may well be perpetuated by this Bill if it does not become the duty of every county to ask for a properly qualified chairman. In some counties there is to be found somebody well qualified to administer justice as chairman of quarter sessions, but one could name county after county where the administration of justice at quarter sessions has been an object of criticism time and time again. A system under which we get only a third-rate kind of justice may be continued under the permissive provisions of Clause 1. That was the point made by the hon. Member for South Shields (Mr. Ede) when he spoke about the county with which he is so much acquainted—that there is nothing in this Measure requiring such an application to be made.
1369 I hope that before this Bill is finished with the duty of dispensing the best justice which we can give will be imposed upon every county in the land. There is nothing to prevent any court of quarter sessions deliberately refraining from making an application, deliberately continuing a system which may be quite bad. An unqualified chairman may be open to the greatest criticism, but it will be possible for the system which has led to his appointment to go on, in that way continuing what, I think, I heard my hon. and learned Friend the Member for East Bristol refer to as a second-standard of justice, which is the one thing above all others we want to avoid. I see no reason why any person should have to suffer the misfortune of being tried in a county where a second quality of justice is being administered. The same standard in all counties should be the right of every man. If the present state of affairs is remedied, it will be at the request of all sections in this House, because there is no one who wants to see any person suffering, purely by chance, from a second-rate standard of justice. I hope that my hon. and learned Friend the Attorney-General will say that he is ready to consider these representations to stop something which, I am sure, nobody can justify, and that is that there should remain some counties in which a man will get a standard of justice lower than that to which he is entitled.
I welcome the extension of the jurisdiction of the county courts. I listened with very great interest to the speech that was made by the hon. and learned Member for Montgomery (Mr. C. Davies), as one does whenever he addresses the House on this subject, and with great respect for the views which he holds. There can be no reason why the success which attends the County Court to-day should not continue under this extended jurisdiction. I see no reason why we should stick to a limit which is entirely out of date for the county courts. County Court judges have to administer matters of law involving that which is of great consequence to the litigants. The step that is being taken is a little tardy and overdue, but will be none the less welcome because it extends to county courts jurisdiction which might be the means of bringing speedier justice to many more people.
1370 It is said that this is a patchy Bill which does not go as far as many of us would like. I confess I should have liked to have seen speedier justice in criminal cases and more courts established so that no one should have to wait for criminal justice, which should be speedy and ready, and must be cheap. We could do a lot more to bring about these three aims, which I believe are supported by Members in all sections of the House. I welcome the Bill as far as it goes. When it is in operation I hope that many of the inequalities which have been spoken about to-day will be ironed out. I hope that the matter to which I have referred, the omission of Clause 1, will be altered between the time when the Bill leaves us and when we see it again in a more advanced form.
§ 10.48 p.m.
§ Mr. Benson
Two hon. Members who have addressed the House apologised for doing so, but I make no apology at all. If barristers and lawyers fail to protect our liberties it falls to a lay member to do so. I want to carry a little further a reference to Magna Charta which was made by the hon. Member for Oxford University (Mr. A. Herbert). I think it was when the hon. Member for Dundee (Mr. Foot) was speaking that either the Attorney-General or the Solicitor-General interjected that the Bill abolished outlawry. As a matter of fact, the Bill does nothing of the kind. It does not abolish outlawry. The only effect it has is to abolish the safeguards relating to outlawry which have been established for seven or eight centuries. Clause 12 declares:Outlawry proceedings … are hereby abolished,and when we turn to the Fourth Schedule, we find, under the heading, "Extent of Repeal "the words, relating to Magna Charta:outlawed, or.Apparently we are getting rid of outlawry, but if we read Magna Charta, or what is left of it, we find that the effect of this Bill is the very opposite. Perhaps I might read from Magna Charta:No Freeman shall be taken, or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any otherwise destroyed; nor we will not pass upon him nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land.1371 That is the relevant passage. I ask hon. Members to notice that this says outlawry shall not be imposed on any man save by the judgment of his peers, and the law of the land, but by the Schedule we propose to take out outlawry from that particular safeguard. If the Attorney-General has his way this will then read: "No freeman shall be imprisoned save by the judgment of his peers and the law of the land," but outlawry has no such safeguard.
§ The Attorney-General
These words only mean that as outlawry has been abolished altogether, therefore the proceedings have been abolished.
§ Mr. Benson
The effect of the Schedule and of Clause 12 is to remove all the safeguards and to bring us to the status quo ante Magna Charta; in other words we revert to the Prerogative. If you had abolished outlawry proceedings under Clause 12 and left the safeguard against outlawry then we should have got complete protection, because no proceedings could be taken and no outlawry can be pronounced save by proceedings, but by taking away the legal proceedings and removing the safeguards we are brought back to the pre-Magna Charta state and the Royal Prerogative will remain. I would have accepted this Bill on its face value and on the explanation of the Attorney-General had I not had a profound and well-grounded suspicion of this Government after the way they have been hobnobbing with Franco and the Dictators. We have found that the main weapon of these various dictators against trade unionists, Socialists and Jews is what in effect is outlawry. Naturally I become very suspicious. The hon. Member for Dundee asked what would be the effect of this Bill upon the Bill which is invariably introduced at the beginning of each Parliament to suppress clandestine outlawry. For 200 years that Bill has been moved at the beginning of the Parliament to reinforce the safeguards of Magna Charta which it is now proposed to remove. Actually that Bill has been debated. It was debated by Mr. Sheridan, who was a great defender of liberty, and I can see that before very long we of the Opposition will have to force a Debate on the Outlawry Bill at the beginning of Parliament. I would just like to protest against the words of the hon. Member for 1372 West Derby (Mr. Fyfe), who referred to this immemorial safeguard as an archaic memorial of other times. As the hon. Member for Oxford University said, our liberties are being steadily whittled away, and I think it is time we protested in order to preserve what little of those liberties remains.
§ 10.55 p.m.
§ Mr. Tomlinson
I should like to ask a question before the Solicitor-General replies to the Debate. I must apologise for the fact that I know nothing at all about the law. I was taught, from my youth up, to have as little to do with it as possible, in order to keep out of trouble. But on several occasions individuals have come to me who have been in difficulties, not because of their having to go before the courts, but because they have been called upon to sit as jurors at different places, and because of the fact that they have been unable to afford the time off. I would like to ask whether it would be possible to include in this Bill a provision which would enable an individual who is not in a position to find the money to attend at quarter sessions or assizes, or wherever he is called upon to go, and when he has no alternative but to go when the summons comes, whereby he could, in helping to administer justice, at least receive payment for the time he is compelled to put in and the difficulties under which he is placed in carrying out his duty. If that could be done in this Bill, it would relieve some people that I have come across during the last few years who have been called upon to undertake these tasks.
§ 10.57 p.m.
§ The Solicitor-General (Sir Terence O'Connor)
At this late hour I hope the House will forgive me if I confine my remarks to answering some of the points that have been raised in the course of the Debate. Certainly no layman need apologise to a lawyer for interposing his views in a Debate on legal matters. We get very depressed at continually hearing the voices of those in our own profession, and no lawyer would ever be heard to complain about the irrigating channels of lay opinion, which can only be beneficial to practitioners of the law. For that reason I was very glad to hear the intervention of, among others, the hon. Member for South Shields (Mr. Ede). He made some very interesting points, which were also raised by a good many other Members.
1373 One of the main points that have emerged in the Debate is the question of making compulsory the appointment of legally qualified chairmen of quarter sessions. Of course, one has a good deal of sympathy with a suggestion of that kind, but as the hon. and gallant Member for South-East Leeds (Major Milner) pointed out, this Bill is already in many respects quite revolutionary, and we must recognise that, in requiring that there should be legal qualifications at all, it is doing something which at the present moment is quite novel. It is perfectly true that it is not applying this revolutionary principle in the case of every county, but the Peel Commission pointed out that there has already in recent years been a considerable improvement. The figures have been read out showing that, whereas when the Hanworth Committee reported only 32 out of 65 chairmen and 39 out of 57 deputy-chairmen, or a total of 71 out of 122, were legally qualified, the then latest figures, in 1936, they were 48 out of 67 and 55 out of 69 or a total of 103 out of 136. Therefore, even in that small passage of time, there has been an improvement, and it is possible, at any rate, that counties will not desire to be in the embarrassing position of finding their quarter sessions next door to those of another county which have a fuller jurisdiction accorded to them owing to the appointment of a fully qualified chairman under this Bill. The hon. Member for South Shields was not quite accurate when he said that the Bill provided no control over the continuance in office now of chairmen and deputy-chairmen of quarter sessions. If he will look at Sub-section 3 of Clause 1, he will see that the appointment of a chairman or deputy-chairman shall befor such term as may be specified in his appointment…
§ Mr. Ede
The hon. and learned Gentleman has left out the words "under this section." It is true that that would apply to the people appointed under this Section; but it would not apply to those not appointed under this Section. It would have to be stated in express terms that physical health shall be part of the requirements under this Section.
§ The Solicitor-General
All I am saying is that there is, at any rate, a good deal more power than exists at present, because those who will be appointed under 1374 the Section will be appointed on certain terms which will be embodied in the terms of their appointment.
§ The Solicitor-General
I did not say anything to the contrary, nor did I suggest that there is anything in the Bill which provides that you must remove the chairman from the Bench if he falls asleep behind books. What I say is that the Bill provides more control than there is at the present time. That is all. If at some time it became necessary to catalogue the physical defects which would necessitate removal it could be done in the Schedule to another Bill, but we hope that that will not be necessary.
The hon. and learned Gentleman the Member for East Bristol (Sir S. Cripps) made a very interesting contribution to the Debate. He supported in the main what is being done in the Bill, and, like a great many other speakers, complained more about what was being left undone than what was being done. He raised at least one point of very substantial importance. That was the question of whether poor persons would in future be excluded from the poor persons' procedure by being redirected to the county court, which is now being clothed with greater authority than previously. I am certain I can give him an undertaking that Clause 5 is not to be used to deprive poor persons of assistance in cases in which they would receive assistance at the present time. Steps will be taken to bring home what I have just said to poor persons' committees throughout the country.
I will not follow the hon. and learned Gentleman, if he will forgive me, into the wider areas of his remarks, justifiable though they are in any Debate dealing with the administration of justice, as to the general administration of the criminal law in the counties. This Bill has comparatively modest scope. It is really designed to carry out the main recommendations of the Royal Commission which has been referred to as the Peel Commission. The opportunity has been seized to do a number of minor tidyings up which justify the title of Miscellaneous Provisions Bill, but there is no pretence 1375 that what we are attempting to do is to effect a fundamental overhaul of the civil and judicial legal system of the country.
Words of great wisdom were spoken by the hon. and gallant Gentleman the Member for South-East Leeds, who, in close contact with the law, pointed out how in recent years, by a series of Acts of this kind, we are effecting a very real and radical revolution in the administration of justice in this country. I do not suppose that you could point to any comparable period in the history of English law when, so far as the administration of the law was concerned, a more comprehensive series of enactments had been passed than have been passed within the last 10 years. The Judicature Act was to a very large extent aimed at one particular element in the administration of justice, and if you took the aggregate of the Acts which have been passed in consequence of the recommendation of the Law Revision Committee, the Peel Committee, the Hanworth Committee, and the various rules which passed silently into operation, it would show that there have been changes of a really fundamental and revolutionary character in the structure of the machine which has to work justice.
The hon. and learned Gentleman the Member for Montgomery (Mr. C. Davies) made reference to the Welsh case which caused a great deal of comment and excitement at the time. I hope that he will not object if I remind him—indeed I think he intended to remind the House—that there was no other course open to my hon. and learned Friend in that case than the course he took. It is important that that fact should be realised in quarters where political capital is sought to be made out of that decision. We have taken advantage of the present Bill, in accordance with the recommendation of the Royal Commission, to make it possible in future to adopt much less cumbersome procedure and to send cases of that kind back to assizes in the ordinary way.
§ Mr. C. Davies
I thought that I had made it quite clear that when the Attorney-General tendered that advice it was the only advice that could be given, and the first opportunity he gets to put it right he does so.
§ The Solicitor-General
I agree that that is what my hon. and learned Friend had 1376 in mind. I do not wish tediously at this hour to cover the whole of the long controversy as to whether the time is ripe to extend very considerably the jurisdiction of the County Court. That matter was fully examined by the Peel Commission, and we are carrying out the main recommendations that were made by that commission. There are two points in connection with it that ought to be noted. My hon. and learned Friend was not, I think, strictly accurate when he said that, under the provisions of Clause 16, the defendant could at any stage object to the trial of the action for the larger amount by the County Court. It is provided that there shall be rules of the County Court prescribing, among other things, the period within which the defendant can, so to speak, opt out of the County Court. Normally, the rules would prescribe a period of eight days, which is the period given for a corresponding option in another connection.
Partly for this reason I find myself in disagreement with the hon. Member for Nelson and Colne (Mr. Silverman) who thought that this provision would leave matters very much as they are at the present time. I do not remember that being the argument that was adopted during the passage of the Trades Disputes Act, when there was a great deal of energy and eloquence devoted to pointing out the sharp distinction between opting in and opting out, contracting in and contracting out. There is all the difference in the world between the existing position and the position that is proposed. The proposal is that the plaintiff may start his proceedings in the County Court but if the defendant does not like it he will have a limited period of time within which to have the case removed to the High Court. There is a very considerable difference between that and not giving any change of jurisdiction except by agreement. The Peel Commission attached a great deal of importance to that difference, and I imagine that it is a distinction with a real difference.
§ Mr. Silverman
My point was this: Will it not be the duty of the prudent solicitor acting for the plaintiff—having regard to the fact that the defendant merely by giving notice of objection will be able to remove the case to the High Court—to find out before he incurs 1377 the expense of starting the case, whether the defendant proposes to exercise the right or not? If so, if it will be the act of a prudent man to find out before he enters the case in the County Court, whether the defendant is going to agree, are you not in the same position as now, because you can ascertain that now?
§ The Solicitor-General
Very often the prudent man will not seek to find out too much before he starts, but will take his chance. It may be that in many cases where he seeks to have his case disposed of in the county court, and he does not know whether the other side will consent to that jurisdiction, he will take the comparatively small risk of going to the county court, and risk the case being removed to the more expensive jurisdiction. The Peel Commission thought that this provision will result in more cases of a higher amount being brought in the county court than the existing rules allow. This is not the last Administration of Justice (Miscellaneous Provisions) Bill that will be seen in this generation.
The hon. Member for Eccleshall (Sir G. Ellis) referred to a panel of deputy-chairmen being set up. It is intended that quarter sessions should have power to apply to the Lord Chancellor and that the Lord Chancellor should appoint more than one deputy-chairman. The hon. Member will realise that the temporary position is provided for by Sub-section (4) of Clause 2, under which if there is no qualified deputy-chairman available one can be nominated by the qualified chairman provided he is such a person as is approved by the Lord Chancellor.
§ The Solicitor-General
We think that he has the power already, and it is intended that quarter sessions should have the power to apply to the Lord Chancellor and for the Lord Chancellor to appoint more than one. If the point is not covered the matter will be looked into, because it is really a Committee point.
Finally, there was the welcome interest shown in Magna Charta by the hon. Member for Chesterfield (Mr. Benson). It is only an indication of the difficulties which lie in the way of law reformers, who must pay attention to even the most ancient of our statutes. The point was completely answered by my hon. and 1378 learned Friend the Attorney-General. There is no question that by the Bill proceedings of outlawry are being abolished. The Act to which the hon. Member referred deals with matters so far as they concern outlawry, which are no more than proceedings of outlawries, and since you have abolished the proceedings surely there can be no ground for keeping in the reference to outlawry which remains in Magna Charta.
Those were the main points raised in the Debate. The Government certainly cannot complain of the reception that has been accorded to the Bill, and we hope that the House will recognise that it is a serious attempt to loosen and lubricate the wheels of the administration of justice and advance yet another mile on the road to progress.
§ Mr. Tomlinson
Will the hon. and learned Gentleman express an opinion as to whether something can be done in the case of jurors who find it difficult, on account of their poverty, to carry out their duties?
§ The Solicitor-General
The hon. Gentleman has raised a point which is really outside the scope of the Bill. The extent of expense and inconvenience to which people are put in order to discharge their duties as good citizens is one that constantly preoccupies everybody. I do not think that within the limits of this Bill I can give any assurance on the matter, but for the present it must remain one of the burdens on people of discharging their duty as citizens.
§ Question, "That the Bill be now read a Second time," put, and agreed to.
§ Bill read a Second time, and committed to a Standing Committee.