§ Mr. Higgs
I beg to move, in page 13, line 31, at the end, to insert:except with the leave of the court or the court of appeal.Oddly enough, these words reverse the whole purpose of this short Clause, which begins by saying that there shall be no appeal from any determination under this part of the Bill. I am not sure that, grammatically, they would not be better at the beginning of the Clause.
There are two points which the House might consider when deciding whether there should be an appeal under this part. Those who will indulge in the benefits of the Bill may find that they are getting as deeply into gambling as both Front Benches seem to be. To come back to a point I made on an earlier Amendment, we were promised that by the end of two years lease-holders who come within the benefits of the Bill at the moment would get something, but they do not know what it will be. In the Black Country we call that "buying a pig in a poke."
The person who seeks the benefit of the Bill is not merely getting something to maintain him where he is for a couple of years, or less, as has been glibly stated once or twice on the other side of the House; he is buying something which may last him for ever. Consequently, it is not much good the right hon. and learned Gentleman saying that we do not need an appeal and that, even if the court makes a decision, it does not matter very much because it merely keeps one person in one house for a few months or kicks out a person who would have to go in a few months' time in any event. That is not the point. The decision which the county court may have to make under Part II may enable the tenant not only to remain for another 12 months in his premises, but to remain there always.
I hope that we shall not be asked to dismiss the suggestion that there should be a right of appeal because it is not worth while and because the costs of an appeal would be more than the value of a few months of tenancy. Quite sincerely, I hope that hon. Gentlemen opposite below the Gangway who set store by the Bill will remember that they must have in mind not only what 315 the Bill gives but also what will follow. Consequently the rights which the Bill gives need to be defined rather carefully.
Let me mention two other matters which may influence them. We have had a number of cases in legislation of recent years where Parliament has embarked on some quite new field—the Rent Restriction Acts are an example—and where we have had to say to some extent that we will leave it to the judges, with centuries of experience behind them, to work out the details. I believe the present Foreign Secretary, when he was Lord President of the Council in the previous Parliament, said something like that about the Representation of the People Bill. When he was asked about the new rules at election time, he rather brushed the question aside by saying, "We lay down the general guiding principles and leave it to the courts to work them out in practice."
Here we are giving the courts a much wider discretion. Apart from the fact that they must not look at a man's bank balance, we are simply telling them, by the Amendment we have just adopted, that they may look at anything—the colour of his tie, the shape of his head—to decide what it is fair for him to have, With all respect to a very great profession, county court judges are human and, like all human beings, they must vary from one to another and from one district to another. They cannot help that. One of the greatest saving provisions of our law in cases like that is that, although we work out a uniform code, we have an appeal to a higher court in the background all the time. I feel sure that the House should consider whether, in order to secure something like uniformity between the respective parts of the country, which have had such strong advocates in the course of this debate, in order that the Midlands may have the same law as South Wales or London, we ought to have an appeal to a higher court when occasion arises so that some standard may be laid down.
It ought to be apparent to everybody in this House that we are embarking upon something which will be complicated. It ought to be apparent that this is strange ground. It ought to be apparent that from time to time new situations will arise in which a court of first instance may 316 occasionally go wrong. I suggest to the House that in cases like that it is necessary that there should always be a court where a tenant who thinks he has had the wrong end of the law should have the right, if he is prepared to embark on it, to go to appeal.
I also suggest that hard cases make bad law. In cases under this kind of provision, very often a court is tempted to look at the hardship in a case rather than the law, and to lay down a principle which may subsequently work harshly. That has happened again and again under the Rent Acts. Again and again a decision has been made which works out badly when it is followed in subsequent cases. Happily the courts of this country who get themselves into that sort of mess from time to time have a way of getting out of it. They can go to a higher court. It is only when one has reached the House of Lords that a really impossible situation arises. I say that such difficulties are likely to arise under this Bill and, having regard to all that is involved, I hope the House will not dismiss this lightly.
§ Mr. Black
I beg to second the Amendment.
It is really in the nature of a compromise between two conflicting points of view. In our previous discussions the view was put forward quite strongly that there should be no right of appeal beyond the county court in view of the limited scope and duration of the Bill. On the other hand, a great many Members on this side have felt very strongly that it is unsatisfactory, where some important point of law is involved, that it should be impossible for an aggrieved party to take the matter to a higher court. We therefore favour, on the whole, an aggrieved party having a right of appeal in the ordinary conditions under which a right of appeal would normally lie.
The Amendment is in the nature of a compromise between the two views. It would not confer an automatic right of appeal upon an aggrieved party, but only the right to appeal to a higher court in cases in which the court itself felt that there was a sufficiently important and fundamental point of law involved to justify the court granting leave of appeal to a higher court.
It seems to me wholly wrong for Parliament to preclude the possibility of an 317 appeal to a higher court being made in circumstances in which the court itself felt that, for guidance in similar cases in future, it would be desirable for a particular point of law to be reviewed by a higher tribunal. Therefore, I hope that the compromise element in the Amendment will appeal to those who, perhaps, have previously favoured there being no right of appeal whatever and will lead them to be willing to accept what I venture to suggest is a very reasonable compromise between the two conflicting sides.
§ The Solicitor-General
Having considered this matter carefully, we feel that it would be better that there should not be a right of appeal, even with leave. I will give my reasons for saying this. Admittedly, the question is a difficult one and the considerations can be urged with force on each side, but nevertheless what seems to us to be the guiding consideration is that we are, after all, in this matter dealing with a whole variety of comparatively small people; the majority, although not all, will be within that category. There will be larger shop owners, landlords and so on, but there will be a great variety of small people.
Looking at the matter from the viewpoint of the vast majority of people who will be affected by the Bill, one has to ask whether it is in their interest that the decision of the county court judge should be open to challenge in a higher court and then, I suppose, ultimately in the House of Lords. In looking at this problem, one has to say that if a right of appeal is given to one party, so it must equally be given to the other party; each party must have a right of appeal. The result is that if we give this right of appeal, even with leave, there is the danger that a very large number of people who can ill afford it—
§ The Solicitor-General
—and who certainly do not want to undertake it, will be faced with the prospect of long, expensive and worrying litigation. Admittedly, the Legal Aid and Advice Act may have some application, but as the hon. and learned Member knows, it has at present been brought only partially into operation, but of course it would apply 318 to the Court of Appeal. On balance, therefore, we feel it is best to leave the Bill as it is.
The hon. Member for Bromsgrove (Mr. Higgs), who moved the Amendment, placed great stress upon the desirability of securing uniformity. Of course, that is a cogent argument. It would be a great deal more cogent if we were not dealing with a purely standstill Measure. If we were looking at litigation which was to set a standard of precedence over a long period, which could only be amended or changed by fresh legislation, there would be a great deal more to be said for securing that a court of appeal prescribes some general principles upon which the decision should be exercised, and so on. That is not the case when dealing simply with this two-year standstill Measure. The problems which the courts will have to consider are very largely—I will not say entirely—pure questions of fact, questions of individual judgment and reaction to a given set of circumstances.
These are matters which are peculiarly appropriate for determination by the county court judge, who will have the parties before him and will have full opportunity of investigating any factors that he thinks material in the realm of fact. In these circumstances, on balance we would prefer to leave the Bill as it is, for the reasons I have given. If we allow a right of appeal, we shall be opening up the prospect of long and worrying litigation to persons who on both sides would probably prefer to have the matter decided once and for all, and in those circumstances I hope the House will agree that this new change will not be adopted.
§ Mr. Peter Roberts (Sheffield, Heeley)
One point I would like to put to the Solicitor-General is that as I understand it, he is putting a great deal of responsibility on the county court judge. He will correct me if I am wrong, but at present I understand that an appeal lies from the county court judge to the Court of Appeal on a point of law. If we pass this Clause it seems to be extremely difficult to make the argument that a point of law arises and that seems to be making the county court judge the final arbiter.
Assuming that this Clause becomes part of the Bill there will be more work for 319 county court judges, who are very overworked and extremely underpaid. There was an argument that they were poorly paid because there were people above them who took more responsibility, but here we are putting more responsibility on the county court judges. Has the right hon. and learned Gentleman considered whether, as a result of this Clause, there might not be a suggestion that county court judges' fees may go up in the future?
§ Mr. Roberts
With respect, my view on this will depend on whether or not a county court judge can do his job properly. At present, he is grossly underpaid—
§ Mr. Roberts
I am glad of your support, Mr. Deputy-Speaker, on that point, and as that was the main point I was trying to make I will sit down.
§ Mr. Manningham-Buller
Following the pertinent observations of my hon. Friend, which were obviously out of order on this Bill, I would say that I regarded the argument of the Solicitor-General as singularly unconvincing. Indeed, the longer I listened to him the more convinced I was that he had for once picked up the wrong brief and was dealing with the Amendment we moved on the Committee stage, when we moved to delete the Clause entirely. This Amendment gives a much more limited right of appeal. The arguments of the right hon. and learned Gentleman were not directed to the questions at issue.
The right hon. and learned Gentleman said that in the majority of cases the questions would be questions of fact, and I quite agree with him. A great many of the questions will be questions of fact, but is he really suggesting that even if the Amendment were carried there would be an appeal to the Court of Appeal with the leave of the Court of Appeal from a county court judge on a pure question of fact? That, obviously, is an entirely fallacious argument on his part, so we can brush it on one side. Is the right hon. and learned Gentleman suggesting 320 that in the interpretation of this complicated Bill questions of law are not likely to arise? I do not think he can put that forward in view of our discussions here.
We have all found, on both sides of the House, great difficulty in understanding the precise application of certain parts of the Bill. Even the right hon. and learned Gentleman himself, when dealing with Clause 3, fell into error. If an error on a point of law was made by a county court judge, should there not be a right of appeal with the leave of the Court of Appeal? That is the only issue here and hon. Members opposite must not assume—and I hope they will not—that the error in law will always be in favour of the tenant. It may be an error in law which is to the prejudice of the tenant or it may be one to the prejudice of the landlord. The question raised by the Amendment is whether, where there is an error in law, that is to say something which deprives someone affected by this Bill of something which they should have, there ought not to be an appeal, with leave. That is the sole issue.
I suggest to the right hon. and learned Gentleman that to put forward the argument (that the Government think that, on balance, it would be in the interests of the vast majority that there should be no right of appeal on a question of law, is to state something which really carries not the slightest weight. If we are to have an appeal system, at least have one from the county court, when leave is given only in cases which have obviously gone wrong on points of law and in respect of which it may well be most desirable to have laid down by a higher court a ruling as to the interpretation of this Measure which will be applicable to all the county courts.
We have made very good progress for some time, during which the right hon. and learned Gentleman has proved himself amenable to our suggestions. If he would only say that he would give further consideration to this matter, I am sure that that would meet with the wishes of the whole House, because this matter affects both tenants and landlords in relation to points of law. We should be able to get on much more speedily if he took that attitude, because I feel sure that, on reflection, the right hon. and learned Gentleman would recognise that 321 his arguments were really directed to the Amendment moved during the Committee stage and not to the one which is now being discussed.
§ Mr. Henry Strauss (Norwich, South)
I hope that the Government will reconsider their attitude towards this Amendment, because that attitude is clearly mistaken. The right hon. and learned Gentleman resisted the Amendment on the ground that many small people would be inconvenienced, and he obviously regarded the Amendment as likely to produce greater or more prolonged litigation. I think it is likely to have precisely the opposite effect. The right hon. and learned Gentleman said that the vast majority of cases would turn on questions of fact. That is undoubtedly right, and, in so far as they do so, there will, as my hon. and learned Friend the Member for Northants, South (Mr. Manningham-Buller) has pointed out, be no appeal, even if this Amendment is agreed to, because no leave to appeal will be granted when the question involved is one of fact.
Therefore, what the House has to consider is the effect of leaving the Clause as it stands or, alternatively, of agreeing to the Amendment, under which the only appeal that will be allowed is an appeal on a question of law. I wish to put to the right hon. and learned Gentleman the point that, if this Clause remains as it now stands, unamended, it is absolutely certain that there will be divergent judgments by county court judges on questions, of law. Consequently, when a similar question arises, the advisors of the litigants on either side will be entirely unable to advise their clients which way the court is likely to decide, if the matter has to be fought out at length. That is absolutely inevitable, if there are divergent decisions on the same point of law and there is no superior court to say which of those decisions is the correct one.
The right hon. and learned Gentleman is quite wrong when he considers that that uncertainty is in the interests of the small man. No one will be more inconvenienced than small people who find that their legal adviser is unable to advise them how their case is likely to go; because he will tell them, with perfect truth, "There are on this point divergent decisions by county court judges and it is impossible to find out which is right and 322 likely to be followed when your own case comes before the court. "If this Amendment is adopted we should in a short time get certainty on all the questions of law on this part of the Bill, when it becomes an Act, on which different decisions by county court judges are possible.
In the vast majority of cases no right of appeal would be given under this Amendment, were it adopted, but in all the remaining cases there would be the possibility of an appeal, generally on the ground that there was a difficult question of law to decide on which there were divergent decisions by county court judges. The effect of allowing a decision by a higher court would be that the question could then be authoritatively decided; and, far from that being against the interests of the small litigant, it will help him. I hope that the Government will reconsider their decision.
§ The Solicitor-General
If I may have leave to address the House again, I would say, as I said before, that we think the considerations are very nicely balanced in this matter. I would propose, if the House were agreeable, that the hon. Member who moved the Amendment should ask leave to withdraw upon my undertaking—without giving any commitment as to what I shall do—to give the matter further consideration; so that if we decide that a change on the lines proposed is possible that course may be taken in another place.
§ Amendment, by leave, withdrawn.