HC Deb 12 February 1954 vol 523 cc1565-78

1.56 p.m.

Mr. Arthur Skeffington (Hayes and Harlington)

I beg to move, "That the Bill be now read a Second time."

I understand that many hon. Members are interested in the Measure which is to come next. In some ways I am disappointed, but I hope to oblige the House by moving this Second Reading at not too great a length. Nevertheless, the provisions of the Bill constitute a useful piece of law reform which in the course of time will, I hope, be of benefit to the community.

The House will note that there is no Clause dealing with the last part of the Long Title. The reason is this. The Royal Commission on Divorce is considering legitimacy questions and may make recommendations. It would therefore be more appropriate to wait until the Commission has reported before the matter is discussed in the House. I readily agree to that suggestion.

I am fortunate, in respect of Clauses 1 and 2, that two most important and authoritative legal committees have recommended what is proposed in the Bill. There was the Law Revision Committee, 1937, presided over by that very great lawyer, Lord Justice Wright, and last year the Law Reform Committee, presided over by Lord Justice Jenkins, which considered the Report of the 1937 committee and in the main endorsed its recommendations, which are carried into effect in Clauses 1 and 2 of the Bill.

Clause 1 proposes that certain parts of the Statute of Frauds, 1677, should be repealed. That statute says that contracts which are made by executors or administrators, contracts which are made on consideration of marriage—though strangely not promises to marry, but only contracts made in consideration of marriage—and contracts which are not to be performed within one year, cannot be enforced in the courts, that is, cannot be sued upon, unless they are in writing. Clause 1 proposes that the provisions governing these three categories should be repealed, so that the contracts can be enforced in courts of law just like any other oral contracts if they have not been evidenced in writing.

There is very little doubt that when the statute of 1677 was enacted the safeguards in it were of some importance. As the Law Revision Committee, 1937, said in considering this matter: At the time when it was passed, essential kinds of evidence were excluded (for example, the parties themselves could not give evidence), and objectionable types of things were admitted (for example, juries were still in theory entitled to act on their own knowledge of the facts in dispute). It was an improvement on this state of affairs to admit the evidence of the parties, even though only to the extent that such evidence was in signed writing. The Report of 1937 goes on to say: The classes of contracts for which Section 4 applies seem to be arbitrarily selected, and to exhibit no relevant common quality….The Section is out of accord with the way in which business is normally done….The operation of the Section is often lopsided and partial. It then gives a good example— an A and B contract: A has signed a sufficient note or memorandum, but B has not. In these circumstances B can enforce the contract against A, but A cannot enforce it against B. Perhaps these quotations may be summed up finally by the section, which says: Today, when the parties can freely testify, the provisions of Section 4 are an anachronism. A condition of things which was advanced in relation to 1677 is backward in relation to 1937. For those reasons, therefore, it is suggested that Section 4 should be repealed.

The repeal does not cover the contract of guarantee, although the 1937 committee recommended that special treatment should not be given to that category. Contracts of guarantee could be quite easily, in their view, enforced in the courts in the normal way if the contract was not in writing. The 1953 committee felt that the minority view of the 1937 committee that such contracts should be excluded from the repeal was the right one, and consequently I and those supporting the Bill think that we should keep the law in respect of contracts of guarantee as at present.

Clause 2 deals with the repeal of Section 4 of the Sale of Goods Act, 1883, which is a codifying Act including many of the provisions of the Statute of Frauds. It may briefly be said that a contract which has been made for the sale of any goods of £10 or upwards could not be enforced in the courts if there was not a note or memorandum.

The sum of £ 10 when originally inserted was no doubt a significant figure, but it is not so today. In any event this provision leads to abuse. Even so long ago as 1885 the "Law Quarterly Review" quoted Mr. Justice FitzJames Stephen as saying: In the vast majority of cases its operation"— that is, the operation of Section 4— is simply to enable a man to break a promise with impunity because he did not write it down with sufficient formality. That is the subject matter of the repeal suggested in Clause 2.

Clause 3 deals with a matter about which some of us feel strongly, that written notice of a summary charge should be given when a man is charged otherwise than by summons. At present he gets no written statement at all, and he is often placed in very considerable difficulties in arranging for his defence. My own experience, for what it is worth, is that one so often gets a very limited instruction from the solicitor because of the circumstances so that when one arrives at court one finds an offence of quite a different character. A man says, "I think I am charged with stealing" when, going into court, one finds it is a receiving charge and, therefore, the defence may be in serious difficulties.

A friend of mine very recently had as a client a very respectable young man, who told him, "I have been charged with burglary and I am quite sure it is wrong because I have never stolen anything at any time. "They went down to the court to find that it was another offence of a different character altogether beginning with "b."

I have had this kind of injustice brought to my notice from a number of quarters, and I discussed it with the Home Office. Subsequently the Home Secretary wrote to me about the provisions of this Clause. He said that he did not dissent from the principle, but he was loath to add to the work of the clerks to justices and the police. I think we can all sympathise with that. Further, he did not really think that the complaint of injustice was very widespread.

I should like to quote from a letter from a solicitor to one of the legal advice services, the Cambridge House Legal Advice Centre, which I know well and which deals with many thousands of cases a year. My friend has been doing this work since 1937. This is what he said: It is most certainly the casein my experience that serious difficulty is occasioned when persons seeking legal advice on criminal matters have been charged otherwise than by summons. That is the purport of this Clause. Many such persons are of a low mentality and even when they are not by nature somewhat slow in the uptake the fact that it is a criminal charge and their liberty is at stake will very frequently indeed so upset them emotionally that they are unable to state clearly exactly what offence they are charged with. Such confusion in the mind of the accused person necessarily puts him at a serious disadvantage in all respects. It may result, and in my experience has resulted, in a man pleading guilty when, in fact, he could have pleaded not guilty to the particular offence with which he was charged, even although he might have been properly charged and convicted of some lesser offence. Moreover, even when the man is guilty of the offence with which he is charged, if he is not sure what that offence is it hampers the ability of any lawyer to advise him with regard to the question of mitigation. It needs to be recollected that generally speaking where a man pleads guilty to a criminal charge the Court will not usually grant him official legal aid. If, as is usually the case, his own resources are not sufficient to enable him to pay for the cost of his own defence, he will therefore have to conduct the case in person, and the only thing that a 'Poor Man's Lawyer' can do for him is orally to advise him. In order to do this effectively it is of course essential to know exactly what specific offence the accused is charged with. It may be said that it is always possible for the lawyer consulted to get in touch with the Court or the Police by telephone and I here by ascertain the exact charge. This argument overlooks the practical facts of life. It is not always possible to get hold of the appropriate person on a telephone. Moreover some of these inquiries come through third parties, for example, the accused goes to his parson who then rings up some lawyer of his acquaintance, or the wife of the accused, being an out-patient attending a hospital, she mentions her trouble to the hospital almoner, who thereupon rings up some lawyer whom she knows. In all such instances, if the accused cannot state clearly what is the charge against him, there is nothing that can be usefully said to him or to his relatives. If, on the other hand, the accused has been given an official piece of paper with the charge writen out on it exactly, then he does at least know and so will his family and anybody who may be trying to help him exactly what he is accused of. I apologise for reading at length, but that does very accurately sum up the difficulty of, and what many of us feel to be the injustices to, the poorer person charged with a criminal offence.

I am prepared to give an undertaking that if the Home Office has weighty objections, on the Committee stage I shall be prepared to drop the Clause or to alter it. However, as this is a matter of the liberty of the individual versus what may be called administrative convenience, a good House of Commons point, I hope it will be considered seriously before I may feel compelled to drop it.

In all the circumstances, I hope that the House will be prepared to give a Second Reading to the Bill.

2.10 p.m.

Mr. Derek Walker-Smith (Hertford)

I rise to support, and in so far as it is necessary, to second the Motion so ably proposed by the hon. Member for Hayes and Harlington (Mr. Skeffington). Hon. Members will see, if they look at the Bill, that it is supported by myself and some of my hon. Friends in addition to hon. Gentlemen opposite.

Like the hon. Member for Hayes and Harlington, I shall confine my observations within a brief space, not only to facilitate the discussion and decision on the important Bill which follows this one, but also in the hope that the Bill after that, which is to be moved by my hon. Friend the Member for Harrow, East (Mr. Ian Harvey) may get a chance. However, there should be some consideration by the House of this Bill, which does away with certain things that have been on the Statute Book of this country for nearly 300 years.

This Bill is concerned mainly with certain venerable relics of the Statute of Frauds. This, as the House knows, was passed in 1677, though it is fair to say that these relics have not of recent times been treated always with that respect which is normally due to age. There has, in fact, been much criticism of the provisions to be abolished under this Bill. There has been considerable difficulty in their application and, as the hon. Gentleman observed, as long ago as 1937 the Law Revision Committee recommended their repeal. I do not know what is the average time in which Parliament can be expected to act on the recommendations of committees and commissions or whether 17 years is above or below the average; but it certainly is an appreciable time, and that recommendation has now been reinforced by the subsequent report which has been referred to.

Cynics are apt to say that lawyers like to have parts of the law in a confused and difficult state for their own nefarious and professional ends. [An Hon. Member: "Hear, hear."] I was about to say that I was sure nobody in this enlightened assembly would take that view, but if they do, they will observe that six out of the nine hon. Members supporting this Bill are themselves lawyers, which should dispose of any uncharitable thoughts of that kind.

Clauses 1 and 2, which are the main parts of this Bill, are concerned with the requirement that certain contracts should be in writing in order to be enforceable. Those are set out in Section 4 of the Statute of Frauds and Section 4 of the Sale of Goods Act, which is in substance the old Section 17 of the Statute of Frauds.

The hon. Gentleman has dealt with the actual provisions, and has pointed out to the House that only one of the contracts referred to in Section 4 of the Statute of Frauds will, if this Bill is passed, be left operative as requiring a memorandum in writing. Even that one is of somewhat doubtful value and, as the hon. Gentleman said, the original Law Revision Committee recommended its repeal. I find in the admirable work of Cheshire and Fifoot on Contracts this passage dealing with that particular type of contract: The Courts, in applying this part of the section, may thus be confronted with two separate questions. Is the contract a guarantee or an indemnity, and, even if an undoubted guarantee, was it the main object of the parties' solicitude or a mere incident in a larger transaction? The answers given by generations of judges to these questions produce a result which would have astonished the draftsmen of the statute. But, as the hon. Gentleman has said, that one remains: but the others do not. The most important of those is, first, the requirement that an agreement which is not to be performed within a year must be in writing and, secondly, the requirement of the Sale of Goods Act that sales of goods to the value of £10 or more must be in writing.

In regard to the first of those, there was the special reason that it was thought that human memory was fallible beyond a year. Yet, if that is so, it would prevent people giving evidence of past transactions in all sorts of cases not covered by this contract provision. The more general reason for all these provisions was the 17th Century desire that all such transactions should be in writing. The House has to remember that in the 17th Century the law of contract was still in its infancy, and developing as an off-shoot from the law of property. And it is still the case in English law—in the Law of Property Act, and so on—that most property transactions have still to be in writing. But so far as the law of contract is concerned, the development of thought since those times has recognised a much greater scope for contracts entered into orally.

There is the further consideration differentiating our position now from that in the 17th Century, to which reference has been made already; that is to say, the change in the laws of evidence. In the 17th Century parties to a contract could not normally give evidence in an action arising out of the contract. Of course, it was continued long after the 17th Century—in fact, until the Evidence Act of 1851; this, as the House will remember, took place a few years after the most famous case in the annals of our courts, the case of Bardell v. Pickwick, in which, though much amusing testimony was given by a variety of witnesses, neither Mr. Pickwick nor Mrs. Bardell was able to go into the witness box to assist the court on that occasion.

All that was changed by the Evidence Act of 1851, so we are in a different position in regard to that from the position when these requirements were made by the Statute of Frauds. There is also this point in regard to the £10 limit under the Sale of Goods Act, that no doubt in earlier days this represented a far bigger transaction in the monetary values of those days than it does today. Therefore, I hope that the House will approve of the clearing away of these provisions from the Statute of Frauds and the Sale of Goods Act.

Now one quick word about the other quite separate provision made by the Bill in Clause 3, the provision that a person charged otherwise than by a summons should have a copy of the charge made available to him. It always seems to me that it is a most elementary principle that he should be so entitled and, with great respect to my hon. Friend, I do not think that a question of administrative convenience ought to weigh against that.

I do not claim to have any extensive, up-to-date acquaintance with the procedure of police courts—

Mr. H. Hynd (Accrington)

Magistrates' courts, please.

Mr. Walker-Smith

I am much obliged;they were normally called police courts a little while ago.

Mr. Hynd

That was when the police handled them; now the magistrates handle them.

Mr. Ede (South Shields)

I wish they did.

Mr. Walker-Smith

I am sorry that my disclaimer of having any extensive up-to-date knowledge should have brought so many affirmations of up-to-date knowledge from the opposite benches, but I can confirm what was said by the hon. Gentleman as to the great embarrassment in which solicitors or counsel can be placed by not knowing until the last moment what is the case they have to face. When my hon. Friend the Under-Secretary of State was at the Bar he moved in the more rarified atmosphere of the Chancery Division, but I hope he will take account of the great practical difficulties and possible injustices that may arise, and will seek to minimise any administrative inconvenience which may arise from giving effect to this principle.

In both the directions in which the Bill seeks to proceed, it does constitute a considerable advance. I think the House should be grateful to the hon. Member for introducing it, and I hope it will command unanimous support.

2.20 p.m.

Mr. G. R. Mitchison (Kettering)

I am not going to add to the very clear exposition that has been given by both the hon. Members who preceded me. This is obviously a good Bill, and there is no doubt whatever about it, as regards the repeal of the greater surviving part of this section of the Statute of Frauds and as regards Section 4 of the Sale of Goods Act, which itself at one time was in the Statute of Frauds. There is no doubt, too, that in regard to other parts of the Bill there is a very good House of Commons point which ought to be considered, and I put it no higher than that at the moment.

I want to take this occasion to point out what happens on that part of the Bill which is, I think by everybody's agreement, a thoroughly good Measure, appealing to everyone and also overdue. That is the repeal of the writing provisions which was recommended by a Law Reform Committee in 1937. It was recommended again, though I agree with a modification, by another similar Committee in 1953. Of course, these bodies are set up by and with the assistance of the Government of the day to consider proper changes of a non-controversial and non-party character recommending themselves to the legal profession as a whole and in the interests of those who have to make use of the law, civil and criminal, in the ordinary course of their lives and business. They perform an exceedingly useful but limited function. The trouble about it is how their recommendations are to be enforced.

I am not making any party point about this, but I am saying that the machinery for putting into effect recommendations for law reform is lamentably lacking. The present course of affairs means that in this as in other cases the matter stays where it is until a Private Member's Bill deals with it. I am not for a minute saying that Private Members' Bills are not very useful things, but it seems that, as regards animals and the law, nothing is ever done except by Private Members' Bills. I speak quite frankly and say that I think the animals are very much better looked after than the law, and there ought to be careful consideration of the means by which we can get this kind of thing put through less accidentally and more quickly.

I wish to make myself perfectly clear. I am making no party point whatever, but I am saying that Government after Government have failed to do it, because it is inevitable that Governments should feel that, with so many other things to do, there was no very great pressure about this matter. There is no overwhelming demand for the repeal of Section 4 of the Sale of Goods Act, and, since the matter is not one about which there is much public pressure, the result is that it gets neglected. It is put right from time to time in bits and pieces by Private Members' Bills, but that is not good enough, and I would suggest, not only to this Government but to any Government, that there ought to be proper machinery for dealing with this kind of thing.

Among the people who sat on the second of these Law Reform Committees was my personal friend, and I am proud to call him that, Mr. Gerald Gardiner, a distinguished practicing lawyer, who contributed to a legal journal recently some extremely interesting suggestions as to the kind of machinery that might be set up. I am not going to give them now, but I beg the Under-Secretary to make himself acquainted with them.

The Under-Secretary, before he came to this House or before he held his present office, was a distinguished member of the Chancery Bar. The antiquities of these things do not come home to members of the Chancery Bar with quite the same force as to the members of some others, but the hon. Gentleman, with a great respect for his own profession, will see the necessity for this House to perform its functions properly.

I do suggest that, in this particular direction, there is a danger of the law falling into unnecessary desuetude and unnecessary clumsiness, and there is the difficult question of linking up the recommendations which commend themselves universally to the profession with the legislation whereby we might put those recommendations into effect.

2.27 p.m.

The Joint Under-Secretary of State for the Home Department (Sir Hugh Lucas-Tooth)

The House will be grateful to the hon. Member for Hayes and Harlington (Mr. Skeffington) for bringing this matter forward, and also to my hon. Friend the Member for Hertford (Mr. Walker-Smith) and the hon. and learned Member for Kettering (Mr. Mitchison) for the very fair way in which they have put the arguments before the House. Perhaps I may be allowed to apologise for the absence of my hon. and learned Friend the Solicitor-General, but it was unfortunate that this debate came on at a moment when he was obliged to be elsewhere.

I may say at once that the Government have no objection in principle to the objects of this Bill, but I must qualify that to some extent. I think that there should be no great difficulty in proceeding with Clauses 1 and 2, but it is perhaps right that I should say that it may be necessary to have some transitional provisions to deal with existing contracts made under the law as it stands now.

As regards Clause 3, which is the matter which has been mainly discussed in the debate, there are greater difficulties. A provision on the lines of Clause 3 would inevitably throw a very considerable additional burden on those concerned, and particularly on the police. It is quite true, of course, that where the House feels that something is required in the interests of justice, we should not allow mere administrative convenience to stand in the way, but rather more than administrative convenience is concerned if we are to put so heavy a burden on the police at the present time. There is really a balance of national interests to be considered here.

I do not want to pour too much cold water on the Clause, but there are also other difficulties. In the first place, I think it is probably true to say that the aim of this Clause could be achieved without legislation at all. I believe that it might be possible to do what the Clause sets out to do without amending the law. But, clearly, if the matter is to be dealt with by legislation, then the Clause will need a very considerable amount of redrafting. I must warn hon. Members concerned that that would be so.

I do not wish to advise the House against giving the Bill a Second Reading because of the difficulties which arise over Clause 3, and I can assure the hon. Member for Hayes and Harlington (Mr.Skeffington) and other hon. Members that the Government will certainly consider the matter very carefully in the light of all that has been said today. I cannot hold out hopes that it will be possible to do as suggested, but we will certainly give the matter very careful consideration indeed.

In view of the attitude of hon. Members, the Bill will probably receive a Second Reading. Perhaps I might close by saying that I shall have some personal regrets because I remember that it was the subject matter of the provisions which are to disappear under Clauses 1 and 2 which were set in the examination which enabled me to enter my profession.

2.31 p.m.

Mr. Ede (South Shields)

I regret that the Under-Secretary should have taken the line he did about Clause 3. I hope it is merely a friendly warning that it is a difficult matter, and I trust that my hon. Friend the Member for Hayes and Harlington (Mr. Skeffington), the hon. Member for Hertford (Mr. Walker-Smith) and other hon. Members who are interested in it, and appreciate all its complexities, will have an opportunity for consultation with the Home Office to see whether the difficulties which have been mentioned can be removed.

I do not think it fair to say that inconvenience and difficulty which might be caused to the police in certain cases ought to weigh against the general proposition that this is a matter in which, at the moment, justice does not appear to be done. I do not share the misgivings of the hon. Member for Hertford about the embarrassment which is caused to solicitors and counsel, because, as a layman sitting on the bench, I am far too often in difficulties where they embarrass me to feel much sympathy with them when the ordinary course of proceedings gives them a purely temporary embarrassment which generally results in their being able to impress the lay bench with their own exceeding erudition and knowledge of the cases which are to be found in the notes to "Stone's Justices' Manual."

Mr. Walker-Smith

I am sure the right hon. Gentleman realises—in fact, none better—that solicitors and counsel have a duty to assist the court in a matter before it. It must be clear that their chance of performing their duty adequately is very much curtailed if they do not know what the case is about until they get amidst the hurly-burly there.

Mr. Ede

They have some difficulties from which they generally manage to extricate themselves with considerable success. What I am concerned about is the person who is not represented by solicitor and counsel and is in a much worse position than others.

I trust that there will be a genuine constructive effort on the part of all concerned to discover some way out of the difficulty which the Under-Secretary has rightly mentioned to us, and that something acceptable to all concerned will be placed on the Statute Book through the medium of the Bill.

2.34 p.m.

Mr. John Hay (Henley)

It is always unwise for any hon. Member to make an attack on barristers and solicitors when there is the remotest risk of a barrister or a solicitor following him. I suggest that when the right hon. Gentleman the Member for South Shields (Mr. Ede) next sits on the bench he ought to appreciate what was said by my hon. Friend the Member for Hertford (Mr. Walker-Smith), that it is the duty of counsel and solicitors attending a magistrates' court to assist the court as well as their clients.

Like the right hon. Gentleman, I have the very gravest misgivings about the attitude which my hon. Friend the Under-Secretary has been obliged to take up about Clause 3. Like hon. Members who have already spoken, I have seen many cases where the absence of a written statement of offence causes the greatest difficulty and embarrassment. One point about this which has not been brought out in the discussion is that in the great majority of cases this is the sort of case which is not indictable but is the subject of a summons and is usually dealt with by the magistrates at the first hearing, that is, on the day on which the person actually first appears in court.

Where the case is of a more serious character—for example, where a warrant has been issued and where it is an indictable matter—there is often a remand or an adjournment but very frequently in cases of the kind dealt with by Clause 3—I am talking from the professional point of view—one finds that the case is dealt with there and then, on the very first day, and unless the solicitor or barrister has a statement of the charge in advance, it is very difficult for him to meet the case which is put up against him.

I strongly urge the Under-Secretary to reconsider the matter. There is a very great balance of public importance on the side of the hon. Member for Hayes and Harlington (Mr. Skeffington). Although no one wishes to embarrass the police or make their difficulties more onerous, nevertheless the public interest requires that Clause 3 should be passed, perhaps in an amended form.

With regard to the two other Clauses, I merely wish to say to the hon. Member for Hayes and Harlington (Mr. Skeffington) that, speaking as one who took his legal examinations long after, for example, the hon. and learned Member for Kettering (Mr. Mitchison), I am sure that future generations of law students, bearing in mind Clauses 1 and 2, will call his name blessed.

Question put, and agreed to.

Bill accordingly read a Second time, and committed to a Standing Committee.