HC Deb 25 June 1947 vol 439 cc511-6
Mr. J. S. C. Reid (Glasgow, Hillhead)

I beg to move, in page 66, line 13, to leave out from "regulations," to "and." in line 14.

I think that it would be for the convenience of the House if we discussed together this Amendment and the Amendments, in line 17, to leave out from "provision," to "for," in line 18; and, in line 19, to leave out from "heard," to "of."

The purpose of Clause 56 is to give power to make regulations with regard to the determination of questions of fact and of law. I do not think anyone objects to matters of this kind being put in regulations, provided we are sure that the necessary minima for the proper administration of justice are safeguarded. I have some doubt, when it comes to the third Amendment, whether it is proper to deal with court proceedings in regulations in connection with an electricity Bill. I should have thought that court proceedings ought to be dealt with in the ordinary way by rules of court, and that if it were necessary to make any additions or modifications to what is in any Statute, it ought not to be done by the Minister of Fuel and Power, but by rules of court. I hope, whatever' the Solicitor-General is willing or unwilling to concede, that he will, at least, take out all reference to court proceedings in line 19.

The first point to which we take exception is leaving to regulations the determination of what is or what is not evidence. I see no objection, personally, to regulations being allowed to admit as evidence something which is not evidence in the strict sense. I am expressing a purely personal view here, when I say that I take the view that the rules of evidence in our courts are perhaps a little bit too strict, and that it would not do much harm if they were slightly relaxed, although that relaxation must be of a very limited character. Any relaxation would come better from some kind of legal body or by rules of court, than from some rules made by the Minister of Fuel and Power. As the relaxation would in any event be somewhat minor, I doubt whether it is worth while introducing that here—I have an open mind about it. I am sure, however, that there ought to be no powers to rule out something that would be evidence under our ordinary rules.

As I understand it, this Clause would allow regulations to exclude something which would otherwise be good legal evidence, and that we must resist. Therefore, I put my case on the first Amendment in this way: there should be no provision in the Bill for excluding legal evidence, but if there were a properly circumscribed and safeguarded provision for the inclusion of something not strictly legal evidence, I would not be seriously disturbed, although, as I have said, I doubt whether this is the way to do it.

7.15 p.m.

I come to the question raised by the second Amendment. The Clause refers to matters relating to the practice and procedure to be followed in connection with the determination of such questions, including provision as to parties and their representation. I do not understand what is meant by the provisions as to "parties." Is it intended that the regulations should exclude someone from appearing, although that person would have title and interest under ordinary legal conceptions? If that is intended, it raises a very serious question of principle. I cannot think that the regulations are intended to let in people as parties to these proceedings who do not have title. I cannot understand why that should be done. I am puzzled why the word "parties" is in this Clause at all.

I see the Lord Advocate sitting opposite. It may be that something arises where the Crown ought to be represented. In Scotland, the Lord Advocate has a universal obligation to represent the Crown, but it may be that in England there is not quite the same distinction about the particular person who represents the Crown. If it means that although, under ordinary law, one officer would represent the Crown, but here it would be more convenient for another to do so, that does not raise any question of principle; but if the word "parties" means not the Crown but the subject, whether the subject be a company or a person, I cannot understand why the regulations should include this provision.

I now come to representation. I see no serious objection to extending the class of persons who can represent litigants in the ordinary courts. I do not think it is a good thing. I do not think it is cheaper, or that it shortens the proceedings to allow representation by lay people not so accustomed to presenting cases in court as trained lawyers. As a member of the legal profession, I should not like to appear emphatic on that. If the intention is that someone other than a lawyer should be allowed, in certain classes of cases, to represent the litigants, although I think it is probably unwise, I should not feel bound to object too much. Events would probably show that it was unwise, and the next time this sort of thing came up for discussion it might be said "Look what happened. It did not work very well. It is not a very good thing."

But if the word "representation" here means something more than that, if it means that the regulations will be allowed to prevent lawyers from representing litigants, then it raises a very serious ques- tion, one which we would have to fight to the uttermost. I know there are cases where legal representation is forbidden, and I think it is a pity. I have a little experience of how these things work, and I believe that, on balance, it is found that in cases where legal representation is forbidden the work does not proceed so smoothly, and justice is not so adequately done. The only possible justification for forbidding legal representation is in a case of such small magnitude that it is thought to be out of scale that a lawyer's fee should be paid. Even there, sometimes much more is involved than the actual sum at stake. But that cannot apply here. On the face of it, this Clause entitles the Minister to say that in a certain class of case a certain type of lawyer shall not be allowed to attend. As this raises a question of principle, I hope the Solicitor-General will agree at least to qualify this wholly unnecessary word. If the intention is that in certain cases a wider range of representation is to be permitted, than would be permitted in a court of law, I think it is unwise but I should not fight to the death on it. But if that is the intention it should be made clear that the narrowing of representation is not permitted to the regulations.

I come to my next and last point, to the words …for the right to appear and be heard (as well in court proceedings as otherwise)… I feel sure that these words have got into the Bill under a misapprehension. I cannot believe that it is the intention of the Government, either to say that in court proceedings certain persons who could otherwise appear shall not appear, or that in those proceedings certain persons who would not be qualified to appear shall be qualified for the purpose of these proceedings. I hope that is not the intention, and I shall listen with interest to anything which the Solicitor-General has to say on this matter. I should say that these words are wholly unjustified. Whatever the hon. and learned Gentleman may see fit to do in the way of only partial acceptance of the first two of these Amendments, he ought to accept the third Amendment without qualification.

The Solicitor-General

I want, if I can, to try to meet the right hon. and learned Gentleman's objections and, first, I would like to consider the three phrases to which he has called attention. With regard to the phrase, "as to the evidence for that purpose," the kind of thing we had in mind was, for example, tendering affidavit evidence of a fact which would otherwise have to be proved by viva voce evidence. The right hon. and learned Gentleman asked whether, within the scope of the words which have been used, it would not be possible for the Government to exclude what would otherwise be relevant evidence, or evidence directly bearing on the issue. Looking at those words, I do not think they are very satisfactory. The sort of words which we think would probably carry out our object more precisely would be "as to the mode of proof," or something of that sort. We would, however, like to consider the present words a little more closely.

With regard to the question of representation and parties, technically, of course, in the case of the courts which are to be set up under the Bill, arbitration courts and so on, if there is no power to enable parties to appear by representatives they would have to appear without representation and state their case. The sort of contingency we had in mind was to enable them to appear by representatives who might be the most suitable in a particular case. Generally, legal representatives would be most suitable, but it occurred to us that in some cases it might be most convenient for all parties to appear by an accountant. In matters dealing with valuation and so on, that might be the most convenient procedure. I do not want to bind myself, at this stage, to any expression of intention, but we desire to take power to enable parties to appear by an accountant if they want to do so, or if it is thought suitable that they should do so in the circumstances of the case.

With regard to the right hon. and learned Gentleman's third point, his criticism of the words is limited to "the right of the Minister or other authorities to appear." The Subsection reads: …for the right to appear and be heard… Then there come the words to which he takes exception, followed by …the Minister or other authorities… We do not seek to take power to interfere with the right of any other person to be heard. We desire power to enable the Minister, in matters in which he is directly concerned, to appear and to be heard. With respect to the right hon. and learned Gentleman, I do not think that that is unreasonable. There may be cases in which the Minister's interest is directly affected, and in which he ought to appear. Here, again, we would like to look at the words to see whether they are not going too far, and I ask the right hon. and learned Gentleman not to press me further for an expression of intention as to the exact form the regulations are to take. These words are enabling words. I concede that the first set of words, which relate to evidence, would empower the Minister to do something which he has no desire to do, and which he ought not to have power to do, and as for the other two sets of words we would like to consider what the right hon. and learned Gentleman has said between now and a later stage of the Bill.

Mr. J. S. C. Reid

The Solicitor-General has met the points I raised very fairly, and I would only make this further point about the third Amendment. I am not quite sure whether the hon. and learned Gentleman meant that there was to be power to allow the Minister to appear in a case where, otherwise, the Government would have no right to appear. If he does mean that I would ask him to reconsider the matter, because I have grave doubt about power to allow somebody to appear in court in a case where, according to the ordinary conception of justice, he has no right, title, or interest to appear. I should have thought that that would have applied to Ministers as to other people. I would ask the learned Solicitor-General, if that was what he meant, to think about it again. As he is to re-examine the whole subject, I beg to ask leave to withdraw the Amendment, and I will not proceed to move the following two Amendments on the Paper.

Amendment, by leave, withdrawn.