HC Deb 27 February 1961 vol 635 cc1325-34

10.1 p.m.

Mr. Carol Johnson (Lewisham, South)

I beg to move: That an humble Address be presented to Her Majesty, praying that the Chancery of Lancaster Rules, 1961 (S.I., 1961, No. 3), dated 2nd January, 1961, a copy of which was laid before this House on 10th January, be annulled. The rules to which this Motion relates were made by the right hon. Gentleman the Chancellor of the Duchy and County Palatine of Lancaster—to give him his full title—under his statutory powers, and they punport to make changes in the procedure of the Chancery Court of the County Palatine consequent upon the passing of the Charities Act, 1960.

It is, perhaps, unnecessary for me to remind the House that the Chancery Court has had a continuous history over six centuries. In fact, at one time the County Palatine had even wider judicial powers, including a court of common pleas and its own court of appeal. Since 1873, when the Supreme Court of Judicature was established, these functions have been limited to the powers and jurisdiction enjoyed by the High Court of Justice on its Chancery side. Its jurisdiction is thus unlimited in amount although limited in area to the County Palatine.

As to appeals from its decisions, these now lie to the Court of Appeal and thence to the House of Lords, in the same way as from the High Court of Justice. It is thus quite clear that its rules are quite as important as those of the High Court and should be as easily available.

When the rules now under discussion were considered by the Select Committee it was noted that they were not accompanied by the usual Explanatory Note, and moreover, it was difficult for the Committee fully to appreciate their effect as the earlier rules which it was proposed to amend were extremely difficult to trace.

At this stage, I should like to refer to the Special Report from the Select Committee on Statutory Instruments which was submitted to the House on 14th February last. The exact position in regard to the rules is set out in the Report in an extract from a letter from the Solicitor to the Duchy of Lancaster to the Clerk of the Committee. I think that I can fairly summarise the situation in this way. The present rules date from 1884, and since then they have been amended many times. They are not reproduced in the volume of Statutory Rules and Orders revised to December, 1948, apparently on the ground—and I ask the House to take particular note of this—that access to rules of court is provided by their reproduction in consolidated form in other publications.

This is certainly true of the rules of the Supreme Court and the county courts but when the Select Committee looked for an up-to-date edition of the Lancaster rules they found it impossible to trace one. It is true that they were published in a complete form in the year 1933, but they are now hopelessly out of date, and moreover, quite unprocurable. Accordingly, the Select Committee asked the solicitors to the Duchy for copies of an up-to-date edition of the rules.

The long letter received in reply is set out in full in the Special Report to which I have referred. Reduced to its essentials, it amounts to a rejoinder that this could not be conveniently done as it would be too much trouble. On this letter I wish to make two comments. In so far as the rules of court have the same effect as the general law, it is essential that anyone in the land who is or may be affected should have access to the body of rules governing the procedure of the Court from time to time. The letter from the solicitors, I admit, shows that most of the parties directly concerned—that is, the officials and solicitors who practise in the courts—are kept informed and up to date, but these are not the rules of a closed corporation affecting only a few special people.

Secondly, and even more important from the point of view of this House, it is not customary for a request from a Select Committee in a matter in which it is directly concerned to be blocked in this way. It was clear that the Committee, after full consideration, came to the conclusion that it could not give adequate consideration to the new Instrument unless it was first provided with an up-to-date edition of the existing rules. In those circumstances, I submit, there was no room for argument but merely for compliance with its request.

In all these circumstances, I am sure that the right hon. Gentleman will agree that there was no alternative but to table this Prayer in order to bring the facts before the House.

When he replies, I hope that the right hon. Gentleman will be able to give the House an unqualified assurance that immediate steps will be taken to see that the existing rules are all brought together and made available for the Select Committee and, in due course, for others who may need them.

I also suggest that at some convenient time the right hon. Gentleman should consider making a new Statutory Instrument which would contain a consolidated edition of all the rules should that prove practicable. The right hon. Gentleman occupies an office of great antiquity. Although in recent years the appointment has been a political one, many of his predecessors exercised judicial functions. I am sure that my hon. Friends and I who have tabled this Prayer can rely upon him to deal with this matter in a judicial and judicious manner.

10.8 p.m.

Mr. G. R. Mitchison (Kettering)

I should like to support what my hon. Friend the Member for Lewisham, South (Mr. C. Johnson) has said. I take the opportunity of thanking and congratulating the Select Committee, as I am sure we all wish to do, on the work it does in looking at the Statutory Instruments which come before the House and investigating questions not only of this kind, but many others.

This is a case in which the Committee has rendered a useful purpose. I hope and trust that the right hon. Gentleman will take the matter in the right way and produce, either with or without withdrawing this particular Instrument, what obviously is needed—an up to date and complete print of the rules of the Court. The right hon. Gentleman occupies himself with many things and I suppose that from time to time it is a great temptation for any Chancellor of the Duchy to forget that his duties include that of looking after the Duchy.

In this instance the right hon. Gentleman signed these rules, referring, for instance, to the revocation of Rule 12 of Order 48 and other amendments of the same kind, and neither he nor those who advised him seem to have been aware that the rules in question were not accessible to the ordinary public and were, in fact, contained in an out-of-date edition and in a book which, as the Report says, was virtually unprocurable.

This, of course, is not merely a matter for the lawyers who practise in this court, but for the public and, I may add, for the public interest generally. It is rather shocking that the rules of a court should have reached this stage of obscurity and difficulty. No one, except somebody who had followed the changes from time to time, would be in a position to say what were the rules at any given moment. For the ordinary person, at any rate, there was nothing to start from. If that is the way in which justice is to be administered, there is something very wrong indeed. Though it is in a sense a technical matter I regard this as one of considerable importance, and I am sure that the right hon. Gentleman, to do him justice, will have the same feeling about it now that it has been brought to his attention, and we shall get what is required in the public interest.

I wish to add a word or two about the letter sent to the Select Committee. I suppose that people in official positions are sometimes very slow to admit faults of their own and of their office. In this case, one sees that in the terms of the letter. But if ever there was a case for simply saying, "Well, a bad mistake has been made and we will take steps to correct it," this seems to me to have been such a case; and all the rather long explanations in the letter add little to the simple fact that the rules are inaccessible to the ordinary person and difficult to get at for anyone.

I need not dwell on the matter. I am sure that we all feel the same about it, but I hope that the right hon. Gentleman will not only undertake to produce a complete version—it does not very much matter whether this Instrument is left for the time being or not—but produce it with some speed, because now that the attention of people has been called to the deficiency I feel that the least the House and the Minister concerned ought to do is to see that the error is rapidly corrected. I see a concessionary look in the right hon. Gentleman's eye and for that reason, among others, I will not develop the matter further. I do not expect him to make as many criticisms of his office as I have felt able to make, but I am sure that he will attend to the main purport of this order.

10.13 p.m.

The Chancellor of the Duchy of Lancaster (Dr. Charles Hill)

May I straight away join with the hon. and learned Member for Kettering (Mr. Mitchison) in paying tribute to the members of the Select Committee on Statutory Instruments which does a great deal of unseen, undramatic but very important work. May I also thank the hon. Member for Lewisham, South (Mr. C. Johnson) not only for moving the Motion in so reasonable and temperate a fashion, but also for his brief reference to the long history of the Duchy of which I am proud to be Chancellor.

May I say a word or two about the background in order to get this matter in its proper setting. As the House will know, under the Chancery of Lancaster Act, 1890, the Palatine Court as regards persons and property within its jurisdiction has the same powers as the Chancery Division of the High Court. The rules which are the subject of the Prayer, namely, the Chancery of Lancaster Rules, 1961 derive, as is clear from the Statutory Instrument, from the Charities Act, 1960. The order of events was as follows. First, the High Court made its new rules deriving from that Act. Those new rules—the Rules of the Supreme Court, No. 5 of 1960—went to the Select Committee and were not the subject of any comment or objection.

The Duchy, as is customary, followed suit, making the same rules as the rules which have been before the Select Committee, subject only to those minor variations of terminology which are necessary to bring them into line with the Duchy's special position—for example, substituting "Vice-Chancellor" for "judge" and "Attorney-General of the Duchy" for "Attorney-General". In effect, we have sought to do, in Duchy terms as it were, the same as has been done in the High Court in the making of new rules under the Charities Act.

They went to the Select Committee, which asked for fifteen copies of all the rules. I do not demur in any way to that request. That meant fifteen copies of the Statutory Instruments back to 1884. I hope that the hon. and learned Gentle- man will accept that the letter which was sent was not intended to block the Select Committee. I am sorry if the letter gave offence. We offered one copy of the rules, accompanied by such help as our Registrar could give.

Mr. Mitchison

No. It was not one copy of the rules. It was a copy of Bennett—that is, the virtually unprocurable book which was quite out of date.

Dr. Hill

I am coming to that point. The Committee wanted fifteen sets of the rules, which meant the Statutory Instruments going back to 1884. We have not got a complete set of the Statutory Instruments in that form right back to 1884. We therefore asked the Stationery Office if it could let us have those fifteen copies. The Stationery Office said that it could. It was very busy. There was a good deal of work to be done in gathering them together, as distinct from printing them. It told us that it would take two months.

The hon. and learned Gentleman put his finger on the point when he asked why we needed to go to the Stationery Office. He asked why we needed to have fifteen reprints made and why we had not got the rules available in consolidated form. The position is this. Bennett, which assimilated all the rules up to 1930, edited by a Registrar of the Chancery Court of the County Palatine, brings the position up to date to 1930. It is in effect used by the practitioners of the court, amplified by the Statutory Rules made since the date of publication.

I want to grapple with the question of why there has not been consolidation. The work of consolidation was done some years ago. It went to the printer. It was then learned that the High Court was revising all its rules. Indeed, I understand that the work is about one-third of the way through. It was decided, rightly or wrongly, that it would be better to await the revision of the High Court rules than to publish a consolidated form of the rules which would be likely to be, as it then seemed, out of date very soon. That is our present position. We are waiting for the completion of the revision of the High Court rules before publishing a consolidation.

I confess that I did not think that to be a sufficient reply to the Select Committee. I therefore decided, at considerable expense to the Duchy, to make every effort speedily to produce in printed form the necessary number of copies of the Bennett consolidation to 1930, plus the Statutory Instruments since that time. The Stationery Office could not do it in the time, so I went to an outside printer, and, in the course of this week, there will be available in that form a complete set of the rules.

I hope to be able to deliver to the Select Committee on Wednesday or Thursday of this week a set of fifteen copies of complete prints of the rules up to date, and it is the intention that when the revision of the High Court rules is complete the Select Committee shall be presented with the rules in consolidated form—

Mr. Mitchison

I am much obliged to the right hon. Gentleman for giving way, but we are told by the Select Committee that the period of waiting for the High Court rules has been, I think, three years. Surely, it does not take that amount of time to consolidate the rules? Furthermore, the rules of the High Court are changed from time to time, hence the amendments to these rules—but these are not the only rules to get consolidated. We are continually getting consolidated sets of rules. I trust that the right hon. Gentleman, not only on this occasion but on future occasions will, if I may put it courteously to him, not make quite such heavy weather about getting the set of rules consolidated.

Dr. Hill

When the hon. and learned Gentleman sees the print, as I hope he will—as he is clearly anxious for information—that will be available later this week, he will find that it consists of approximately half of the volume I have in my hand plus the rules that have been made in recent years. It is really a formidable thing. In any case, the High Court is revising the rules and we are anxious to see those revised rules before these rules are published in consolidated form.

Nevertheless, I recognise that the Select Committee is entitled to what it seeks. For the reasons I have given, that could not be done in the time, but the complete set will be available to the Select Committee in the next few days. I hope that the hon. and learned Gentleman will think that his points have been substantially met. We have no desire whatever to be in anyway discourteous to the Select Committee. It is fully entitled to ask, as it has asked, but the material could not be supplied in the time. But what the Select Committee sought will be supplied in the next few days.

10.18 p.m.

Mr. Eric Fletcher (Islington, East)

Perhaps I may reply to the Chancellor of the Duchy of Lancaster in my capacity as Chairman of the Select Committee on Statutory Instruments, to which Committee he has been good enough to pay a tribute. It is always a pleasure to see the right hon. Gentleman, not least when he appears in a white sheet. I am sure that I am speaking for all the members of the Select Committee when I say that they will accept the apology and explanation that he has been good enough to make to the House.

As a result of this debate, initiated by my hon. Friend the Member for Lewisham, South (Mr. C. Johnson), it is clear that it is unfortunate that these rules were not consolidated at an earlier date. In a sense, it is fortuitous that the matter came to the notice of the House in this way but, as my hon. Friend has said, the Select Committee is charged with the duty of being vigilant in respect of all Statutory Instruments that are laid before Parliament.

It is salutary that the House should be reminded from time to time that this duty that the House has delegated to the Select Committee applies not only to the Statutory Instruments made by ordinary Government Departments—if I may put it in that way—but extends equally to the rules of court made by the Lord Chancellor in respect of the rules of the High Court.

In this respect, the Chancellor of the Duchy of Lancaster stands in the same degree of responsibility for the Chancery Court of the Duchy as the Lord Chancellor does in respect of the High Court of Justice. Although the ambit of the jurisdiction of the Chancery Court of Lancaster is limited geographically compared with that of the High Court, it is in no way limited in amount, and I should have thought that it would be just as necessary for litigants and practitioners in Lancaster, as elsewhere in England, that there should be readily available a complete set of the rules governing their procedure.

Apart from that, I should have thought that it was desirable that copies of the rules were available in the Library of the House and elsewhere in case of any doubt and in case questions arose about them that required ventilation in this House. We were surprised, in the Select Committee, to find that there were no such copies available and, indeed, that there was this difficulty in obtaining access to them. The Committee came to the conclusion, I think rightly, that it could not fulfil its duties to the House in examining the proposed revisions in these rules unless it could inspect a complete set of the rules. Therefore, I do not think that the Chancellor of the Duchy need in any way be apologetic if a certain amount of expense has been incurred in producing and printing the rules which, as the letter from his Department says, were prepared some time ago and would then have been printed.

There is one point on which I should like to differ from the Chancellor of the Duchy. He seemed to be under the impression that the rules of the High Court, now being revised, might be brought up to date and published in a revised form at a fairly early date, and he seemed to give that, as the letter from his Department gave, as the reason for not having printed them earlier.

Dr. Hill

It is because I have learned that they are not likely to be available at an early date that I have hastened with the printing of the complete rules.

Mr. Fletcher

I am very glad that the right hon. Gentleman has said that, because I know something about the task of revising the High Court rules. It is a very long and laborious task. It was started some years ago as a result of the recommendations of the Evershed Committee on the Practice and Procedure of the High Court, and that Committee recognised that it would be a lengthy undertaking.

So far as I know, no statement has been made and no suggestion has been thrown out either by the Lord Chancellor or by the Attorney-General that there is any likelihood of those rules being completely revised and made public for some considerable time. As I understand the position, when they are made it cannot be assumed that they will be non-contentious. They will themselves have to be submitted and laid before this House, and, as far as one can see, there may well be controversy and perhaps debate about them in the House before they are finally approved.

Therefore, I think that the Chancellor of the Duchy is very well advised not to have thought it right to postpone the printing of the Duchy rules until the Rules Committee of the High Court has completed its task, on which it is now engaged, of a complete overhaul of the rules of the High Court.

I conclude by saying, if I may, that we on the Select Committee feel that we have done a service not only to the House, but to the Chancellor of the Duchy and his Department, by reason of having brought this matter to public notice and ensuring that these rules, long out of date and not available, will, in future, be available.

Mr. C. Johnson

In view of the assurance and undertakings given by the right hon. Gentleman the Chancellor of the Duchy, I beg to ask leave to withdraw the Motion.

Motion, by leave, withdrawn.