§ Order for Second Reading read.
§ The Attorney-General (Sir Donald Somervell)
I beg to move, "That the Bill be now read a Second time."
With regard to any Bill there are two questions which one has to cover: what does it do, and why does it do it? I will address myself, first, to what the first Clause of this Bill does. As the House will see, Sub-section (1) of Clause 1 says that the number of puisne judges—that is, of course, judges of the High Court, other than the Lord Justices and the Lord Chief Justice, and the President of the Admiralty, Probate and Divorce Division—shall not number less than 25 or more than 32. At present there can be 19 judges appointed to the King's Bench Division, of whom two, the 28th and 19th, can be appointed only after the passing of a Resolution by both Houses of Parliament. For the Admiralty, Probate and Divorce Division the maximum is four, of whom one is subject to a Resolution, and for the Chancery Division six, of whom five have to be appointed: the sixth does not require a Resolution, but the appointment can be filled substantially on the lines we are providing for over the whole field by the present Bill. At present there are 17 judges of the King's Bench Division, instead of the full maximum of 19. There are four judges—the maximum—in the Admiralty, Probate and Divorce Division, and there are five judges—the minimum, and one below the maximum—in the Chancery Division. That is to say, under the existing law the total maximum, with the Resolutions and with the allocations to the Divisions as I have described, is 29. This Bill enables that number to be increased to 32. The establishment will be increased by three judges more than there could be at present.
At present, the King's Bench Division has not its full maximum: it has 17, 1038 which is the minimum; and the Chancery Division has one below its maximum. Therefore, at present, by Resolution in the King's Bench Division and without Resolution in the Chancery Division, three more judges could be appointed. But the difficulty which has arisen is that the arrears which demand urgent attention are in the Admiralty, Probate and Divorce Division, which is up to its maximum. We, therefore, propose to increase the maximum by three for all Divisions, and to do away with the provision by which judges over the minimum have to be allocated, two at present to the King's Bench Division, one to the Admiralty, Probate and Divorce Division, and one to the Chancery Division. Sub-section (3) preserves the existing minimum, but what I may call the extra judges over the minimum will not be tied, as at present, to particular Divisions. Suppose that divorce work in future fell off very much and there was a great increase in the King's Bench work, you could then appoint all your extra judges to the King's Bench Division. I think that that elasticity is wise.
The other provision is to do away with the existing provision under which when there is a vacancy above the minimum there has to be a Resolution of each House of Parliament, based on the view that the state of business in that Division necessitates the vacancy being filled. I believe that this new provision will commend itself to the House. I believe that the general opinion in the House to-day, contrary perhaps to what it sometimes has been, is that the House wishes there to be at any time enough judges to deal with the work which comes before them, and to deal with it as promptly as the procedure of litigation, which in some cases is necessarily somewhat slow, allows. If the Bill is passed, when a vacancy occurs above the 25 which is the aggregate minimum, the vacancy can be filled if the Lord Chancellor, with the concurrence of the Treasury, is satisfied that the state of business in the High Court requires that the vacancy shall be filled. I think that that is right in principle; in practice, the present procedure inevitably involves some delay, and we think more prompt action would be secured by the method proposed.
As I have said, the main reason for the Bill is the very substantial increase in the volume of work in the Admiralty, 1039 Probate and Divorce Division. That increase is in connection with divorce cases. Particularly in the last two years—and it is still continuing—there has been a very substantial increase in the number of cases to be dealt with. The existing judges of that Division have done their best to cope with the work; they that and were ready to try any cases in the Vacation, but it is obvious that they cannot deal with the position. The House will know that a Committee was appointed recently, under the chairmanship of Sir Ralph Wedgwood, to consider the question of the trial of divorce cases in the provinces. Under the Rules, at present the position is that defended cases other than poor persons' cases have to be tried in London: The Committee recommended that that Rule should be abrogated and provision made for defended cases to be taken in the provinces, not in all circuit towns but in the larger ones. My noble Friend the Lord Chancellor is accepting that recommendation. That does not necessitate a Bill; it can be done by the alteration of a Rule. He proposes to alter the Rule so as to enable defended cases other than poor, persons' cases to be tried in the provinces. I think that that is right, and that it will have the general commendation of the House. It cannot come into full operation tomorrow: there is difficulty about accommodation and so on; but we shall get on with it as speedily as possible if the House gives us this Bill.
My Noble Friend intends to use the powers of the Bill to appoint two, or possibly three, more judges—the Committee suggested two, but there are other factors and I cannot tie myself to a figure at the moment—to the Admiralty, Probate and Divorce Division, who will be available to assist in the trial of divorce cases in the assize towns in the provinces, and also to assist with work in London. We are satisfied that the powers which this Bill will give will enable the arrears to be caught up and disposed of and for that Division to get well abreast of its work. That really gives the effect of what the main provisions of this Bill do and the main reason for them.
I ought to say a word or two about Subsection (4) which says:A puisne judge of the High Court may be transferred by direction of the Lord Chancellor 1040 from one of the Division of that Court to another.When a judge is appointed the Letters Patent appointing him do not specify the Division to which he is appointed, but he is appointed to fill a vacancy. Under Section 11 (1) (b) of the Supreme Court of Judicature (Consolidation) Act, 1925, a judge appointed to fill a vacancy of the High Court, subject to the provision of that Act and to Rules of Court, becomes a member of the same Division as that to which the vacating Judge belonged If there is a vacancy in the King's Bench Division you appoint a judge, and subject to the provisions of that Act, he becomes a judge of the King's Bench Division. "Subject to the provisions of this Act" refers to Section 4 (2) which says:Any judge of any of the said Division may be transferred by His Majesty, under His Royal Sign Manual, from one to another of the said Divisions.That gives a complete power to His Majesty, who, in this matter, as in others, would act on the advice of the appropriate Minister, in this case the Lord Chancellor, to transfer a judge from one Division to another. That has not often been used in the past; it may be more desirable in future. We therefore, in order to get the whole of the thing into one Bill, have put that provision into this Bill, but we put it in a slightly different form and -I want to explain why it is in that form. In form, in the main Act, it is a transfer by His Majesty; in form, in the present Bill, it is a transfer by the Lord Chancellor. But, obviously, there is no difference in substance, because His Majesty in this matter would act on the advice of the Lord Chancellor, who would be responsible for any action which was taken. We change the form for the reason that we thought it right to put in that, if a transfer is to be made, it should be made with the consent of the President of the Division from which the judge is being transferred. He is, broadly speaking, responsible for the work of his Division, and it seems to us right, that, as an independent judicial officer, his consent should be obtained. If that is right, then the form of the old Act would not be appropriate, and the House will at once see that you could not say that His Majesty could transfer somebody with the consent of one of his own judges and therefore, if the proposed addition that there should be the consent of the President of the Division is accepted, everybody will 1041 agree that the change in form is right and appropriate.
§ Mr. Molson (The High Peak)
May I ask the Attorney-General a question in order to clarify this matter? I understand that under the present system it is the practice that, when there is a special pressure of work in one Division, a judge is lent from another Division. What is the particular advantage in having to transfer him completely? Is there not something to be said for sending a judge to a particular Division where his experience has lain rather than to another Division?
§ The Attorney-General
It is right to make clear that although judges are attached to a Division, as I said, under the Letters Patent appointing them, they are made judges of the High Court, and when they go on Assize, under the Commission under which they act, they can, and do, deal with every class of case. Where it arises in London, it would go to the Chancery Division, the Admiralty, Probate and Divorce Division or the King's Bench Division and, from one point of view, it is the underlying principle of this legislation that a judge is a judge of the High Court. The provision to which my hon. Friend refers of what he calls lending from one Division to another temporarily, for a week or a fortnight and so on, we are not altering at all. It is made use of from time to time and that provision remains unaltered, but in the existing structure, in addition to that power to lend temporarily, there is the power of transfer. That is all with which we are dealing here.
It is quite a different case and it is right that there should be the two quite different powers. Let me take an imaginary example. I have no particular case or individual in mind, but let us assume that you appoint to the Divorce Division someone who has practised in both the Divorce Court, as many people have, and in the King's Bench Division, a man with a wide general experience of law. At the moment when you appoint him the need is for extra judges to do Divorce work. In the course of time that need may diminish and he may be the most suitable man, and may be anxious to do the work of a King's Bench judge should opportunity offer. This would give the power, if that case arose and you had a vacancy in the King's Bench 1042 Division, for his transfer. In the ordinary way it might be a good thing to do, and he might be a most suitable person to consider for the increase that was wanted in the strength of that division to fill a vacancy which had occurred. That really describes the main purpose of this Bill. If any right hon. or hon. Gentlemen have any points, perhaps with the leave of the House, I tan say a word or two in reply at the end of the Debate.
§ Mr. Oliver (Ilkeston)
Wound the Attorney-General say, in respect of the Committee to which he refers, whether it is intended to implement the decisions of the Committee either to send a Divorce judge along with the King's Bench judge to assize or to have independent divorce assizes; and whether it is the intention of the Government to implement the recommendations that the assize divorce work should be taken only in the large assize town and that that in the smaller assize towns should be left to the judges of the King's Bench Division?
§ The Attorney-General
I thought I had noted that but I am glad to expand a little what I said. We are accepting the recommendation of the Committee. It is not intended to have separate assizes, and, as I stated, it is intended that the judges of the Admiralty, Probate and Divorce Division, including the extra judges that will be appointed under this Bill, if we get it, shall go on circuit not necessarily to take all the work, but to assist in dealing with the divorce work in the larger assize towns. It is our intention to restrict ourselves in accordance with the Committee's suggestion to the larger-sized towns. I think that will meet the needs of the main representations which have been made.
§ Mr. Clement Davies (Montgomery)
I welcome this Bill, which brings in three very necessary improvements for which many of us have been asking for a very long time. More than one Commission has made recommendations which are now partly embodied in this Bill. In the first place, the number of judges are to be increased to a maximum of 32; in the second place the Bill does away with that absurdity of the Law Officers of the Crown having to come here and ask this House to address a petition unto His Majesty to ask for another judge for any vacancy that occurs. In the third place, the Bill 1043 makes the judges interchangeable. There is a fourth improvement, not in the Bill, which is the biggest of the lot. That can be carried out by rules and is adopting recommendations made by the Committee. May I deal briefly with these improvements? First, as to the addition to the number of judges. Even now, the maximum will be brought up to only 32. If I may take the King's Bench Division, where the greatest delays have been, the maximum would be brought up there to 19 at the most, subject to interchangeability.
§ The Attorney-General
Yes. One of the points of the Bill is that the extra six can be put anywhere. There will be no longer any hard or fast maximum for any one Division.
§ Mr. Davies
Subject to that interchangeability the number is now to be brought up to 19 in the King's Bench Division. May I point out to the House what a small change that is? There is one Supreme Court of Justice, which is divided into three Divisions apart from the Courts of Appeal—the King's Bench Division, the Chancery Division and that mysterious Division, Probate, Admiralty and Divorce. The old complaints about "the law's delays" used to be with regard to the Chancery Division and these complaints have been with us since the time of Henry II. They were mentioned, of course, in Hamlet's great soliloquy, and Dickens referred to them in connection with the famous case of Jarndyce v. Jarndyce. In the King's Bench Division we have suffered all along from delays, and delayed justice is a denial of justice. In any event, it puts an unnecessary burden and expense upon litigants and, what is more, prolonged anxiety.
In 1880 there were 15 judges of the King's Bench Division, when the population [...] England and Wales was only 35,000,000. That number was increased to 18, with a possibility of adding another two, in 1910, when the population had risen to 36,000,000. To-day, our population is over 45,000,000 and we are to have only 19 judges. That is not much of an addition, when one considers all the complications which have arisen. But for one thing, the whole system would have broken down. That one thing is the unpopularity of our legal administration 1044 in the minds of all commercial people. I had the honour in 1934 of sitting on a Royal Commission, which reported in 1936. The first question I asked every one of His Majesty's judges was: "Does your Lordship realise that the administration of justice is so unpopular that everyone making a contract, who knows of the possibilities of a breach of contract, puts into his contract words to show that under no circumstances will he go before one of His Majesty's judges?" The usual answer I obtained was, "I have never heard of that," whereupon I further asked, "Does your Lordship realise the number of disputes arising out of contracts which are referred to arbitration?" A great number of arbitration cases have relieved the courts although commercial people know that arbitrations are far more expensive than actions fought in the courts. The fees for counsel are higher, the charges made by witnesses and solicitors are much more expensive and, moreover, the parties do not have that same confidence of impartiality in the arbitrator, who knows so much about both sides, as they have in a judge who knows nothing about either side.
Nevertheless, they will go to arbitration for several reasons. One is the certainty of finally disposing of the case; another is that they can get a decision on a specified day and do not have to wait a considerable time. A third is that the matter is dealt with much more informally, without the necessity of going through all the costs and expense of copying documents and so on which we insist upon in the law courts. I would like to see our courts restored to their high position in the opinion of the commercial people of this country. Our jurisprudence is second to none, and the men who administer our law, hold the highest reputation, not only in this country but throughout the world. But our machinery has, undoubtedly, broken down. I would like to see people having so much confidence in the courts that their cases could be dealt with swiftly and cheaply, and that arbitrations, instead of being on the increase, would decrease. I would like to see people go to the courts which have been formed for them.
Another point is that the administration of justice, having been for so long a State monopoly should be cheap to the litigant; if there is any expense at all it should fall 1045 upon the State. We are adding to the numbers of judges to-day, and provision will have to be made for their salaries, their pensions, clerks and so on. I wonder whether the House realises that the fees obtained in the administration of justice pay for all these costs—judges, clerks, masters, even buildings—so much so, that when we consider these matters in Committee of Supply there is only a token Vote. The fees that are brought in, small as they really are, are sufficient to cover all. I do not know what the present figure is, but in 1936 it was £894,000. Yet the cost of setting down a case is only £2, and the cost of the hearing is only £2 whereas, I have known arbitrators charge a thousand guineas for a couple of hours' sitting—a very different thing from His Majesty's judges.
Therefore, there is no reason whatever, so far as the cost to the country is concerned, why the number of judges should not be increased. Moreover, it would result in a great saving to the country as a whole. For what happens now, owing to a shortage of judges? Judges fill their lists so that they do not waste five minutes a day from a quarter past ten until a quarter past four, but it never occurs to them that they are wasting hours, and maybe days, of the time of the litigants and witnesses who are kicking their heels outside in the corridors of the courts waiting for their cases to come on. The list is filled up with three or four cases, lest, perchance, the parties arrive at a settlement in the first, second or third cases, and the fourth case will then be called into the list. I have always suggested that it would be a very good thing if His Majesty's judges had but one or two cases in their lists, and if they finished early, and went off to play a game of golf, they would be better judges. They would be fresher, and, I am quite sure, would apply their minds very much better to the cases. Instead of that, they are anxious to fill up their lists, while all these people are outside waiting for the cases to come on.
Now may I move from the question of the number of judges to that of the transference of judges from one division to another? This is an important, but a very small, point, which, I do not suppose, is going to affect the Chancery Division at all There are cases in the Chancery Division which relate to real 1046 property, houses, trusts, and so on, which are treated rather as specialist subjects, and come before judges of long experience at the Bar and on the Bench. Why the Probate, Divorce and Admiralty cases were put into one list has always been a mystery, why it should be continued, passes anyone's comprehension. Might I recite a passage out of the report of the Commission to which I have referred, presided over by Lord Peel in 1936? On page 59, paragraph 172, he said about that extraordinary position:The segregation of these three classes of work, namely, the Probate, Divorce and Admiralty in one Division has also resulted in a tendency to treat them as occult mysteries incomprehensible to all save the select few.I have never been able to discover any one of the "select few." Recommendation after recommendation has been made to break up that Division, which, of course, is the sensible and right thing to do, and transfer the Admiralty business to the King's Bench, where there is already a judge sitting dealing with commercial matters and where counsel who appear also appear in Admiralty and commercial cases. Probate business should go to the Chancery Division, where they are already dealing with the interpretation of wills, and divorces should be handed over to the King's Bench Division, generally.
This brings me to the question of divorces. There are going to be more and more of the defended cases taken separately. This matter was first brought up by the greatest—and I am choosing my words with great care—Lord Chancellor that this country has known in 150 or even more years—Lord Birkenhead, a master of law and a great Chancellor. Until his time, all divorces had to go to London, and there were two judges sitting in that Division. One, usually the President, who was experienced only in Admiralty work, took the divorce cases, and the other, usually another Admiralty man, also dealt with divorce cases. Until recently, only one divorce examiner had ever been put on the bench. All the matters, wherever they arose, had to be brought to London. Lord Birkenhead suggested that judges should be sent on circuit, but he only succeeded in getting consent for circuit judges to deal with undefended divorces. Defended divorces had still to be tried in London.
1047 Look at the injustice of it. I do not know what the cost is to-day, but I remember making inquiries in 1938 and the cost of undefended divorce cases was something like £120 to £130. What the cost of the defended divorces may be one does not know. It all depends on the length, the number of witnesses and so on. Yet, if a case arose in Newcastle, that case had to be tried in London. If the petitions were brought to London, there was an order, straight away, for payment towards the costs, covering the expenses of solicitors, counsel and witnesses and so on in coming to London. Time and again, the husband gave up fighting and allowed the case to go by default.
What action are we taking now to remedy that position? I do not know to how many of these towns it is proposed that these judges should go. Up to the present, of these 61 circuit towns, even undefended divorces have been taken only at 26. I sincerely hope that at every assize town—whether there are 61, or, as I think now, 63—these cases will be taken. It is an unjustifiable expense to put upon people, that they should have to travel such distances in order to be heard. Justice ought to be brought to the door, or as near to the door, of the litigant as it is possible to bring it. I hope that the Government will take this opportunity of introducing far greater measures than this for the better administration of justice in this country—to reduce the cost to the litigant, to enable these matters to be tried locally, without having to be brought all the way to London, to enable them to be tried before judges on a fixed day and disposed of, and, finally, to do away with the expense and waste, of time covered by the multiplicity of appeals. There have been improvements in my time. There used to be a Divisional Court, with an appeal to the Court of Appeal and then to the House of Lords. That has been done away with. You cannot appeal to the House of Lords now except with the leave of the Court of Appeal. I think the time has come when we should say there shall be a trial by the judge of first instance, whoever he may be, with one Court of Appeal and then finish. Then there will be much greater confidence in the administration of justice.
§ Mr. Moelwyn Hughes (Carmarthen)
I want to extend a welcome to the Bill on behalf of myself and my colleagues. The occasion for the Bill, as we know, is the large number of divorce cases which are cluttering up the list, but advantage has been taken, very wisely, of this opportunity to make some improvements in the organisation of justice, a greater flexibility as between division and division, an overall increase in the possible number of judges and greater freedom to appoint them when vacancies occur. All those are to be welcomed, but I notice that the right hon. and learned Gentleman did not dwell at all upon the real reason for the Bill—the necessity for dealing with these divorce cases. Perhaps he was right, because before dealing with that situation, it would have been better if the House had had an opportunity of discussing the best way to tackle it.
There has been discussion in the Press and it has aroused considerable public interest, because you can approach this question of divorce in two ways. You can approach it from the business point of view, regarding it as a case in which a minimum number of facts have to be established and certain forms have to be gone through, and they produce inevitable consequences. I am thinking now, more of undefended than of defended cases. As a matter of legal business, the ordinary undefended divorce case presents no difficulty whatever. Issues as difficult, if not more difficult, are tried every day by county court judges and registrars. From the point of view of business, therefore, you could delegate the work of trying undefended divorce cases to inferior tribunals. Suggestions have been made that they should be handed over to registrars. It has even been suggested that they should be handed over to courts of petty sessions.
If you look upon it as a matter of plain business, that suggestion may well be justified but there is another aspect of the question of divorce. It is a matter with very serious social consequences. Perhaps we, in the profession, more than those outside—but probably the public too—are apt to regard divorce somewhat light-heartedly and flippantly. For the overwhelming majority of those involved in it, it is a serious, a distressing and a very disturbing experience and the consequences are often serious. However 1049 simple the issue may be and however straightforward the decision on the facts, the social consequences are such that it calls for adjudication by a supreme judicial tribunal. It justifies a tribunal of competence and of dignity.
Therefore, I welcome the fact that it is still to be treated at a high level, even though it is a matter of undefended divorce. But the arrears which these judges are to clear off when they are appointed are not the only arrears. There are unseen arrears, which do not feature on any printed list. The hon. and learned Gentleman the Member for Montgomery (Mr. Davies) has referred to the question of cost. I cannot quite agree with his estimate. I have made inquiries and I find that the cost of an undefended divorce, without any complications, the work being done by a competent firm of solicitors familiar with this type of work in London, ranges from £50 to £75. To any firm of solicitors, who do not do this as a regular business, I think the minimum sum at which it could be done with a reasonable return to them is between £70 and £80 and the fashionable firms charge anything from £100 to £150. That is for a simple, plain, undefended divorce.
At that level of cost the right to have one's matrimonial affairs adjusted according to the law of the land is denied to many people. I am sorry the Government have not gone a bit further and seized this opportunity to enable those who, after all, have a right to their remedy at the hands of the court but cannot afford it, to do so. I am not advocating any extension of divorce. I am advocating only that those who are entitled to it, should not be denied it because they have not the money. It is true that there is a poor person's procedure but the figures of income and capital amount which entitle a man to describe himself for this purpose as a poor person have been so fixed that there is hardly anyone in employment to-day who would qualify to be a poor person and, since the success of the national savings movement, I imagine that there are very few who would not be disqualified on the ground of the savings that they have. Therefore, I hope that before long the Attorney-General will advise the Government as to the steps that are necessary in order to make the Courts more 1050 accessible to those who are entitled to go there and have their differences adjusted. This, of course, is part of a much larger problem than the one raised by this Bill, and I apologise if I have tended to go outside the immediate scope of the Bill, but I submit that this was a proper occasion on which the matter of costs in the Courts should be raised. I welcome the Bill as far as it goes but regret that it does not embrace this wider issue.
§ Dr. Russell Thomas (Southampton)
I find it difficult after the grievous matter of which we heard earlier to apply my mind to what I had thought I might say upon this Bill, but I will do my best. We have had a most remarkable statement from my hon. and learned Friend the Member for Carmarthen (Mr. M. Hughes), who talked about the high principles involved in divorce on the one hand and suggested how much easier it should be made for people to obtain it on the other. My hon. and learned Friend the Member for Montgomery (Mr. C. Davies) had, of course, nothing but praise for the Bill, but I would remind the House that both those hon. and learned Members are intimately concerned in their daily life with—well, I need not say it, but hon. Members know quite well what I mean. Naturally they would approve of this Bill, although to my mind it is not so satisfactory or so much needed as some people say that it is at the present time. First of all, the Bill takes away power from this House—takes away some of the few remaining powers of the House in this matter. The House still has to present an Address under certain conditions. A great deal has been made by the Attorney-General and others of the delay which might occur in appointing a new judge. That delay is not a serious matter at all. It is always wise for this House to keep power in its hands, whatever it may be. It may need at some future time, for some reason or another, to delay the appointment of a judge. The Executive should be as remote from the Judiciary as possible, and I suggest that it is a pity this House is giving away any of its power at all It has already given away much of its authority to the Executive.
There is another point. The Attorney-General said that His Majesty could already make changes from one Division to the other, but this is made very much 1051 easier under this Bill. The Lord Chancellor can now move a judge from one Division to another, admittedly with the consent of the President of the Divorce Division in one particular case, but nevertheless it becomes an easier and simpler matter. I do not suspect His Majesty's present Government or the present Lord Chancellor. I have every trust in them, in spite of the dictatorial régime under which we are living, and I do not suspect them at all, but it may well be that in future we might have unscrupulous Governments. It may well be that some judge of the King's Bench Division might, in a judgment, condemn the Executive Government very severely, and it would be a simple matter for an unscrupulous Government to transfer him to another Division—surely to put him into the Chancery Division would be very depressing for him—but that would have a bad effect on the Judiciary and we want to keep it as independent as possible of control by the Executive. I am sure that those who framed the Bill of Rights, who had memories of those time-serving Judges under the Stuart kings, would not be in favour of any move of this kind to-day.
I want to pass on to matters which are perhaps a little delicate, but we seldom have the opportunity of discussing the Judiciary so freely in this House. First, I would like to point out that there will be a very considerable charge on the Consolidated Fund by the appointment of these extra judges. Three will be appointed in due course. They might not be appointed all at once, but there is no doubt that owing to the state of business three will be appointed in time, and there will be an extra charge of £15,000 a year. There will also be the charge for the Judges' Clerks, £1,575 a year; and there will be, possibly for indefinite periods of time for an indefinite number of persons, payments of £3,500 a year which the judges receive when they retire. I only make that comment in passing but, after all, it is this House which provides the money for the Government as for everything else.
The main reason for the appointment of these judges is the delay in business in the Divorce Court, but I suggest, though I suggest it very respectfully, that there could have been two other remedies for that particular state of things. The two 1052 remedies could run together. Instead of this Bill to appoint three judges we could have had another Bill; indeed, for one of the points which I have in mind, I do not think that even another Bill would have been needed. First of all, we have heard a great deal about the care with which even undefended divorce cases should be dealt with. This seems to me to be a great deal of nonsense. They are the simplest of all cases. Undoubtedly, many of the undefended divorce cases, to which the hon. and learned Member for Carmarthen referred as being the simplest type of case, could be dealt with by the magistrates. In spite of his devotion to high principles I still say that, because the magistrates are already constantly untangling far more complicated matrimonial relationships when dealing with judicial separations and so on and are constantly dealing with the most intricate phases of married life and judicially separating the parties concerned. I am sure that magistrates, county court judges or others could deal with undefended divorce petitions quite satisfactorily. There is another suggestion which would help in this difficulty. I can say this without in any way wishing to offer any criticism of His Majesty's judges—but has not the time come to shorten the Long Vacation? The Law Courts rise at Christmas for, I think, about three weeks, at Easter for about two weeks, at Whitsun for about 10 days and in the summer for eight to ten weeks. That is 16 weeks in all in the year—in fact, I think it is more. I know of no other occupation which is obliged with so much leisure.
§ Dr. Thomas
I will come to Members of Parliament in a moment. [Interruption.] A university professor is not rewarded with the emoluments and other glamour which so often attach to those who practice at the Bar. Further, the courts do not sit until half-past ten and they rise at a quarter past four—for five day a week only. The hours of sitting of the courts might be readjusted and lengthened a little. After all, now that there is a war on we all try to work a little longer. If these points had been considered it might well be that these long waiting lists in the Divorce Court would have been avoided. Many of these cases could be disposed of 1053 quite simply and easily. I put forward the suggestion that if these cases were referred to magistrates and if the vacations were shortened there would be no need for the Government to come to the House for the appointment of three more judges as they do in this Bill.
It may be argued that the judges' work is onerous work, which involves great mental effort and so on, but we must remember that while judges have to settle cases between private litigants Members of Parliament have to settle matters for the whole nation, and many of them have to work very hard, indeed, besides. Take again the case of rising Counsel at the Bar. They have to work very hard. Sometimes they have to sit up to a late hour studying their briefs, and then they have to attend the court next day and supply the judge with all the facts necessary to enable him to come to a decision. During the vacation they have to spend their time in the murky atmosphere of the police court and the cold and depressing corridors of the County Court. The doctor, again, may have to work through the night in a confinement case where life and death are involved. He has to use his knowledge all the time. But he has to continue visiting his patients next day. There is no excuse on that ground for His Majesty's judges.
There is another point that I want to put, and I must be very careful in what I say. I do not want to say anything which can be misconstrued by the judiciary, whose members, no one doubts, have been promoted because of their eminence. I do not want to cast any reflection on any one, but I do want to express the hope that the Lord Chancellor, when these powers are given to him, will not make his appointments because those who hope for promotion have followed a political life. There are judges at the present time who have had a political career, and I am sure that when they reached judicial office their politics did not count. Not only judges in the High Court but judges in the county court have had a political life, and I hope that when the Lord Chancellor from time to time exercises his powers under this Bill, he will make his decision about the appointments completely on other lines. I am sure he will. Membership of this House should not be regarded as the way to the Bench. It is not only 1054 learning which is required of a judge. He must also have foresight, discretion and judgment in its broad sense, and the power to weigh evidence. It is not necessarily the best advocate who makes a good judge.
But one thing which we should bear in mind all the time is the importance of the complete independence of the judiciary from the Executive. I regret that this Bill draws the Executive and the Judiciary a little nearer together. That is to be highly deplored. I regret, too, that a Bill of this kind should be brought before the House. In the first place I say so because it takes away the power of Parliament in some degree; secondly, because it makes charges which in my opinion are quite unnecessary charges, on the Consolidated Fund; thirdly, by increasing the number of what some may think are sinecures it brings a great profession like the Bar into perhaps a little public disrespect; and, finally, I repeat, it takes away from this House the remnant of its powers in the matter. On these grounds, I must say that, I deplore that the Government have thought fit to bring forward this Bill.
§ Mr. Oliver (Ilkeston)
Unlike my hon. Friend the Member for Southampton Dr. R. Thomas) I am delighted that this Bill has been brought forward, for the reason that it contemplates the appointment of three additional judges. It is well known, and I think it must be well known to my hon. Friend, because his speech seems to indicate that he he has read at any rate one or two letters which have appeared in "The Times"——
§ Dr. Thomas
On a point of Order. May I say that I gave up reading "The Times" three years ago, and I have felt very much better ever since.
§ Mr. Oliver
May I say to my hon. Friend that. I think he ought to revert to reading "The Times." Then he might be a little better instructed on this matter. I welcome this Bill, because it has obviously been brought forward on account of the arrears of work in the Probate and Admiralty Division of the High Court Those arrears mean that there is g[...] delay in settling the cases of a very large number of people in this country. Men and women in the provinces wait for their cases to be tried, particularly divorce cases, for a year or two years or even 1055 longer. Mention has been made of the application of the Poor Persons Rules to divorce cases. Where the people concerned come within those Rules the judge of assize is given complete jurisdiction to deal with the cases but if an unfortunate person whose income is higher than is provided in those Rules brings an action which is defended then the case must come to London.
That means that many persons in receipt of £3, £4 or £5 a week must incur the expenses of coming to London, and that imposes an enormous hardship on a very large number of comparatively small people. The statement of the learned Attorney General that it is the intention that not only cases of people coming within the Poor Persons Rules but all cases will be adjudicated at the Assizes means a very important step towards the more speedy administration of the law in this particular regard. I welcome the Bill because of the great hardship to litigants which has occurred in the past through the appalling delay in the trial of cases. The extended jurisdiction given to the judges who go round the country means more expedition in dealing with these cases, and I think that any one interested in the matter must welcome the Bill as a step in the right direction.
§ Flight-Lieutenant Challen (Hampstead)
I regret that I was nable to be here at the opening of this Debate and so I do not know whether the learned Attorney-General dealt with certain criticisms which occur to me. A number of criticisms do occur to me, but I would like to mention just one and ask him to consider whether there might not be some re-drafting in Committee of the proviso to Clause 1. Clause 1 (2) permits His Majesty to appoint additional judges but requires that the advice given to His Majesty shall be given in a certain way. There is in fact nothing to prevent His Majesty from appointing judges. To-day His Majesty must, of course, take, and does take, such advice as seems to him fit, and it would be perfectly legal under Clause 1 (2) if His Majesty, on the advice of the Executive, were to appoint these additional judges without fulfilling the requirements of the proviso. I suggest that it would be a perfectly valid appointment. The result of this Bill will be that the 1056 influence of Parliament with regard to the appointment of additional judges will be taken away, and what purports to be a safeguard will be found to be no safeguard at all. Alternatively, if the proviso means that it is illegal and invalid for His Majesty to appoint additional judges without such advice, it is open to any litigant appearing in court before one of the newly appointed judges to contend that in that particular appointment the Lord Chancellor did not have the concurrence of the Treasury. A similar point has been taken before and with success.
I do not like the introduction of the Treasury in this proviso. It is, apparently, taking the place of Parliament in this matter. If it is to be said that the appointment of an additional judge by His Majesty would be invalid unless the Lord Chancellor had the concurrence of the Treasury, it would be open to a litigant to contend that the judge had no power to try his case because the Lord Chancellor had not the concurrence of the Treasury. It may be alleged that the concurrence was of a formal nature, and contended that it should be of more than a formal nature. I doubt myself whether the proviso does have the effect of making an appointment invalid without such advice. But I am putting a dilemma to my right hon. and learned Friend. Either the proviso means something, in which case I anticipate legal difficulties, or it means nothing, in which case the influence of Parliament is removed and His Majesty may appoint the additional judges without let or hindrance. I do not like the form of drafting which seems to me not in accord with constitutional theory, and I hope that my right hon. and learned Friend will consider its amendment.
§ Lieut.-Colonel Marlowe (Brighton)
I am stirred into activity in this Debate by reason of the hon. Member for Southampton (Dr. Thomas) who referred to a judicial appointment as a sinecure. I felt that we could not pass that unchallenged.
§ Lieut.-Colonel Marlowe
I would only tell my hon. Friend that those of us with knowledge of the enormous amount of labour undertaken by the occupants of the judicial bench are satisfied that it could never be described as a sinecure. 1057 We in this country should be extremely grateful for the impartial administration of justice which we get and the heavy labour which falls on the judges involved. I welcome this Bill as a contribution to relieving some of that labour.
I also welcome it for another reason. I think that in the past we have made the mistake of waiting until the courts got into a chaotic state before asking for the appointment of judges. I am glad to see that the reverse procedure is being adopted, that is, having the power to appoint judges first so that they will be available as and when required. That is an extremely good principle because the judges are the servants of the public and the public must be served. It should be open to all to be able to have their cases heard expeditiously. There has been some reference to correspondence in "The Times," in which there was a suggestion that the divorce jurisdiction should be delegated to magisterial courts. I hope that that will never happen in this country. It leads to the kind of abuse which has occurred in other countries abroad. A certain court becomes known for the facility with which divorce can be obtained in that particular court, and people seek the necessary domicile in order to come within the jurisdiction of the court. That leads to abuses which we have seen and which I hope will never occur here.
Reference has also been made to the charge on the Consoliated Fund. I do not think that anyone can allege that our judges are overpaid. It has to be borne in mind that of the £5,000 a year which they receive, at the present rate of taxation something like £3,000 goes back to the Treasury, so that the net receipt to a judge is in the region of £2,000. It is unfortunate that a judge should be so underpaid. It is very necessary for the administration of justice that a judge should be free from those financial worries which come to the rest of us, and I certainly see no reason why any objection should be taken to this alleged burden on the Treasury. The appointment of three extra judges will not cost the Treasury more than £6,000 net, and that is a small price to pay for the sure and swift administration of justice. I heartily support and welcome the Bill and hope that it will pass without difficulty.
§ Mr. Furness (Sunderland)
I do not want to make this Debate a field day for 1058 lawyers, whether they are practising, whether they have lost their practices, or whether they have retired from practising; but as one who appeared in court and took notes in the days when the learned Attorney-General was practising prominently at the commercial bar, I should like to make a few observations about that extraordinary court the Probate, Divorce and Admiralty Division. I never understood it when I was practising and I do not understand it now. It has the most absurd collection of work. I remember on one occasion that a dinner of members of the Admiralty Bar was held. The hon. and learned Member for Montgomery (Mr. C. Davies) and other people of his eminence and of my more lowly station were assembled in some pleasant room in a hotel. We were joined by a number of strangers, who were pointed out to us as practitioners in the Divorce Court. Our guest was a learned judge who had never held a brief in the Divorce Court, and it was explained that he was appointed because he understood Admiralty work, which was very difficult, and could learn the Divorce work, which was easier. There was an appointment to the Admiralty Court recently, an admirable appointment, but again that judge had aways had the type of Admiralty and commercial practice which brought him plenty of work, and he had never had to go into the Divorce Court.
It seems to me that as we are still and shall be after the war, a great commercial nation, carrying out great insurance business all over the world, and as foreigners have great respect and confidence in the old historic Admiralty jurisdiction of the law courts, we should not continue to clutter up that court with this extraordinary assemblage of probate actions and divorce There is, though I have forgotten the details of it, a certain procedure under which you can even bring a commercial action in the Admiralty Court by serving a writ on the ship. The learned Attorney-General, when he was practising at the Bar, practised in the Admiralty and commercial courts, and frequently found himself in the Admiralty Court one day and in the King's Bench Division the next.
§ The Attorney-General
Although it is not important we may as well have the facts correct. I never appeared in the 1059 Admiralty Court, only in the commercial court.
§ Mr. Furness
I am sorry the Attorney-General has never had that opportunity, but, as a general rule, most people who have practices in the Admiralty Court are also retained in shipping cases in the commercial court, and the types of solicitors who do the Admiralty kind also do the commercial cases. You do not, however, get any duality between counsel and solicitor who appear in Admiralty actions and who also handle divorce actions. The link is commercial and Admiralty, and I feel the time has now come, and is long overdue, when we should recognise the facts of the matter, that if you are competent to argue in the Admiralty Court a case about two ships coming into collision you are also competent to argue a case about cargo being damaged on discharge from a ship. No counsel that I ever met at the Bar had any practice at all in Admiralty cases coupled with divorce cases. Surely the time has come—and it would have long since been done but for certain rather absurd vested interests—when we should set up an Admiralty and Commercial Division, and when we should assign the divorce work to the King's Bench Division.
I have never appeared in a divorce case; I cannot conceive of anything more sordid than sitting week after week and month after month trying divorce actions. Lord Mersey, an eminent commercial judge, once remarked that he had one foot in the Atlantic and one in the sewer. It is not fair to assign a judge solely to divorce work. It does not give him the necessary relief. If this work were assigned to the King's Bench Division, it would be done by judges in the course of other work. You should not assign one judge to do nothing else but the type of work which, however necessary and right it may be, must inevitably give a man a jaundiced view of human nature. I have thought that ever since I was called to the Bar in 1927. I have never understood the reason for this extraordinary linking of Probate, Admiralty and Divorce. I know the answer which is given—and it is correct technically—is that it is the old civil jurisdiction which remained outside the jurisdiction of the King's Courts. we 1060 should not be so bound by history, however, that we cannot depart from it on grounds of convenience, It has been frequently urged by judges of the greatest distinction, urged by practitioners who have had a hundred times the experience of the courts that I have had. When we are passing this Bill we should not let slip the opportunity of rearranging the assignment of business in our courts in a rather more sensible and logical fashion.
§ The Attorney-General rose——
§ The Attorney-General
Well, Mr. Speaker, when I moved the Second Reading I said that with the leave of the House I would deal with any points hon. Members would wish to raise. I will be quite brief. One or two general points have been raised on which I will make one or two observations. In the first place, my hon. and learned Friend the Member for Montgomery (Mr. C. Davies) referred to what he described as the unpopularity of the courts, and he quoted certain figures showing that the numbers of judges had not gone up in proportion to the population. In considering those figures one has to bear in mind the very large increase in the jurisdiction of the courts of petty sessions, the very large number of minor criminal cases with which they deal, and also the extension of the county courts. He said he hoped to see the days restored—he suggested there was some golden age—when there were no delays and the courts were generally acceptable in all their procedure. At the same time, however, he told us there had been complaints since the days of Henry II; so I do not know at what precise stage of our history this golden age was fixed. But everything ought to be done that is possible to avoid delays. It is a very difficult problem to speed up litigation because it involves a lot of work.
I would like to tell my hon. and learned Friend and the House, with regard to fixing days, that it is a great convenience, particularly in the case of witnesses. In recent years there has been an increase of that practice. There was, I believe, some comment in the Press a short time ago that four or five judges had apparently nothing to do after 11.30. The 1061 reason for that was that they had fixed that day for cases, and when they sat they found the cases had been settled. That shows how hard it is to please everybody. The general trend, however, is on the lines, as far as is practicable, that my hon. and learned Friend suggested.
Two or three speakers talked about the Probate, Divorce and Admiralty Division. So far as the technical point of this Bill is concerned, that is quite outside the Bill, because it can already be done under Section 4 (2) of the 1925 Act. I know a different view is held by my hon. Friend and I do not want to spend much time on it. My own view, broadly, is that judges ought to be able to try all sorts of cases. I think it would be a pity to have a Division which did only one sort of work, and the Probate, Divorce and Admiralty Division to some extent may have suffered in the views of certain people because they have their work set out in their title. After all a King's Bench judge will be trying murder one day, landlord and tenant the next day, and a case about a charter party the next day. You do not, however, call it the Murder, Landlord and Tenant, and Charter Party Division. Therefore, I am not in the least impressed by the fact that these things are different, and I think it has been found convenient, and the convenience does not decrease as the number of High Court judges goes up to have Divisions rather than to have only one Division including the whole High Court. All I need say, however, is that it does not arise in the Bill. The views of my two hon. and learned Friends have been stated, and the matter has been raised in the report of that Committee.
My hon. and learned Friend the Member for Carmarthen (Mr. M. Hughes) referred to the question of costs. Of course, if we can do anything to keep costs down, let us do it, but even a simple divorce case involves the proof of certain matters. It is not like a case the parties can agree. The Court has to be satisfied and have evidence before it of certain things. However, I do not think anybody suggested that the figures mentioned were exorbitant or that solicitors were profiteering. The fact is that in the divorce laws this House has laid it down that certain investigations have to be made and certain facts have to be proved, but this Bill, in allowing cases in the provinces, 1062 will to some extent meet the question of costs there. With regard to the Poor Persons' position, though we cannot discuss that in any detail the Army legal aid scheme and schemes for other Services, which have functioned on the whole very well, are one of the reasons why there are so many more cases to try. These measures have been introduced in the Services to get the wheels started and the machinery going.
The suggestion that undefended divorce cases might be dealt with in lower courts was made by the hon. Member for Southampton (Dr. Russell Thomas) and one other hon. Member. It is a view that is held by some people, but the matter has been considered within the last 10 years by two committees. The recent Committee said that these cases seemed to call for treatment in the highest court available and its Report was signed by all the members, including one High Court judge who was a member of the King's Bench Division. The Peel Committee in 1934 took the same view. They said:We are strongly of the opinon that the status of the person entrusted with a task of such importance not only to the individual but to the State should not be in any way inferior to that of a High Court judge.One remark was made about vacations. As a matter of fact, particularly in the Divorce Court, the judges sat all through the vacation to try cases which were available to be tried. That has, broadly, been the position during the war. In peacetime, vacations on the whole were welcomed by solicitors and litigants as much as by the Bench and the Bar. Take the Long Vacation, which is the one usually attacked. Without pursuing the attractive comparison between Members of Parliament and the judges, for two months in the year, judges, litigants and solicitors find this holiday arrangement convenient to them, and so do witnesses, some of whom would be taking their holidays in August and others in September, free from the intrusion into their normal life which litigation involves. They have a break. The existing vacation arrangements have been found, on the whole, to be of advantage in the administration of justice and to all those concerned in it.
§ Question, "That the Bill be now read a Second time," put, and agreed to.
§ Bill accordingly read a Second time.1063
§ Bill committed to a Committee of the Whole House.—[Mr. Drewe.]
§ Committee upon the next Sitting Day: