§ Sir Peter RawlinsonI beg to move Amendment No. 4, in page 9, line 31, at end insert:
(6) No rule of court under this Act shall be made by the Lord Chancellor save with the approval of a majority of persons who have been appointed under section 99 of the Supreme Court of Judicature (Consolidation) Act 1925 who are present and attending the meeting at which rules of court under this Act are to be made; and the Lord Chancellor shall make any rule of court so approved by such majority and shall not refuse to make any such rule.Clause 8 is an important Clause. It provides for the making of the rules of court, and in its provisions it establishes conditions before a statement can be given in evidence under Clauses 2, 4 and 5, which are the main Clauses of the Bill.For instance, Clause 8(2)(a) provides that the rules shall make requirements about notices to other parties and give particulars, including particulars of persons making or recording a computer statement. Subsection (2)(b) provides that there shall be rules made about counter notices to require persons to be called as witnesses whether or not they should and must and have to be called. Subsection (3)(a) confers discretion on the court even if the requirements with regard to Clause 2 (hearsay), Clause 4 450 (records of facts), or Clause 5 (computers) have not been complied with.
Subsection (3)(b) provides that rules shall be made as to the power given to the court to give directions as to whether and in what conditions a statement within Clause 2(1) (hearsay) should be made. Subsection (4) provides that rules may be made for preventing a party from adducing evidence which could otherwise be adduced by virtue of Clause 7. Accordingly, Clause 8 provides for the effective machinery for operating the Bill, and this effective machinery is given by the Clause to the Rule Committee.
The Law Revision Committee to which reference has been made by the Solicitor-General, and which is the Committee which fathered this Bill by making the recommendations of their Thirteenth report, categorically recommended that it would be convenient to incorporate the initial rules both for the High Court and the county court in a Schedule to the Act. As was pointed out by the Law Reform Committee, this had been done in the Supreme Court of Judicature Act 1873. They recommended that that should be done and that thereafter, if necessary, the rules could be amended if in the light of experience those rules were found not to be working effectively, and they repeated this in the summary at page 24 of their Thirteenth report.
The absence of a Schedule dealing with the rules was raised on Second Reading and, as I understand it, the reply from the Government was that it would be too inconvenient, it would be too bulky, it would extend the Bill too much, it would be difficult to work out the rules at this stage and it would be better to have the Bill on the statute book and then set about formulating the rules. At the time I did not find that very convincing, and I should have thought it would have been much more convenient to have a Schedule.
At some time, these rules will have to be made. A Rule Committee must be established and the rules made, and it would be far better to delay the Bill until that had been done rather than, as usual, have this piecemeal legislation. There are practising lawyers, and indeed six judges, on the Law Reform Committee who all made this recommendation, and I am surprised that the Government should have rejected that proposal 451 and gone ahead with the Bill without the rules having been set out in a Schedule.
I move the Amendment because, as Parliament will not have the opportunity of examining them in the Schedule to the Bill—though doubtless the rules will be placed before the House and we can if necessary pray against them at another time—if Parliament is to leave it to the Committee it is important to know on what terms we leave these rule-making powers to the Committee.
The Rule Committee, as is apparent from the Clause, consists of persons appointed by the Lord Chancellor. The rules are made by the Lord Chancellor and any four or more of, as it were, the presidents of the different divisions, four judges of the Supreme Court, two practising barristers and two practising solicitors—all appointed by the Lord Chancellor. Obviously, they are widely experienced persons. But, as I understand it, the present attitude of the Administration and of the Lord Chancellor is that if the Lord Chancellor disagreed with what the Rule Committee proposes he has the power of veto and can say whether or not he will make the rule. If that is so, Parliament is handing over to a Minister the power to lay down what rules he likes, and the function of the Rule Committee is purely advisory.
I suggest that Parliament should not do that. Parliament does not have the rules in a schedule, so it should make it perfectly clear, as I hope the Amendment does, that it is the Rule Committee that will make the rules, and that even if the Lord Chancellor does not like a rule that is proposed by a majority of the members of the Rule Committee attending he must make that rule.
I say that because it is not long since we had a debate in the House about the rules which were made by the Rule Committee. On 8th April I posed to the Attorney-General questions about the position with regard to the Lord Chancellor and the Rule Committee. I asked the right hon. and learned Gentleman whether he thought that the Lord Chancellor had this power of veto, and what were the powers of the Rule Committee. I never received any answer from the Attorney-General to the several questions I then posed, and those questions 452 were afterwards posed in the professional Press but were never replied to.
I can only assume from that that the Government's view is that the Minister, in this case the Lord Chancellor, has that power. If the Lord Chancellor does assume that power, it is right that Parliament should make clear exactly what it wants. Parliament should make it clear that it is the Rule Committee which has the effective power.
The Amendment therefore seeks to control the power of the Minister, and so to say that, in effect, a rule shall not be made without the agreement of the Rule Committee; and that if a majority of the Rule Committee believes that a rule is appropriate and should be made, the Lord Chancellor may not veto it, but shall have to make it. In that way we shall get a Rule Committee to which we shall be giving very extended power but which will have some control over the rules it makes.
I consider this to be a very important matter in the Bill, and important also with regard to Parliament and parliamentary control over the legislation that is made. I therefore hope that the Solicitor-General and the Government will accept the Amendment.
§ 12.30 p.m.
§ Sir Eric Errington (Aldershot)I want to speak not so much from the strictly legal point of view, but from the point of view of the difficulty that arises in dealing with a new contrivance —the computer. It seems that it alters the whole atmosphere of the question of rules.
I take the view that computers are not always right. There must be some protection which should have very careful consideration and may need amendment at some time. The sort of situation which makes me anxious is that where in an ordinary county court judgment summons it may be that a computer will be used, perhaps in a number of cases in which the defendant may not be in a position to combat the result of the computer's figures. That is a serious position, and one which is not entirely a legal one. It requires a great deal of thought to ensure that justice is done between the person who can afford and use a computer and the ordinary person who is not in that position. That is a 453 very strong argument for strengthening the Rule Committee.
I disagree with my right hon. and learned Friend the Member for Epsom (Sir P. Rawlinson), who suggested that it is an advantage to be able to change the rules so that if the first effort to make the computer work fairly fails it can be amended.
§ The Solicitor-GeneralI quite agree with the great importance that the hon. Member for Aldershot (Sir E. Errington) attaches to the treatment of computers. They constitute a novelty and as such pose unexpected and novel questions of evidence. I entirely share the concern he has expressed about them. I do not think I have more to say in response to his speech than to remind him that, whatever criticisms may be made of the Bill, it cannot be criticised on the ground that an elaborate and serious attempt has not been made to deal with this. The matter is dealt with in great care and elaboration in Clause 5. In addition, in Clause 8 provision is made for the Rule Committee to deal with points arising under this novel head. While agreeing with him about the importance of this, I invite the hon. Member to take the view that the Bill deals carefully and conscientiously with the subject.
The Amendment has unmistakable overtones of an earlier discussion, as the right hon. and learned Member for Epsom (Sir P. Rawlinson) pointed out when moving it. It is none the worse for that. I do not pursue the point that as matters have developed the House has not had the opportunity to study the initial rules in a Schedule. I was glad to have an indication from the hon. Member for Aldershot that there is an advantage in having this matter dealt with in rules outside a Schedule to the Bill. I have nothing to add to what has been said already on that subject.
The Amendments would have the effect that rules of court under the Bill could be made only with the approval of the majority of the members of the Supreme Court Rule Committee attending the relevant meeting and that the Lord Chancellor would be obliged to make any rule so approved. I repeat that the Amendment has overtones of an earlier discussion which took place when the rule; under Section 7 of the Matri- 454 monial Causes Act, 1967, came to be considered. That Act provided that the authority having power to make rules was to be the Lord Chancellor together with any four or more of a number of specified persons.
The Amendments are concerned with the rule-making powers of the Supreme Court Rule Committee, but for this purpose there is no distinction between the two, because under Section 99(4) of the Judicature Act rules of court may be made by the Lord Chancellor together with any four or more of the following: the Lord Chief Justice, the Master of the Rolls, the President of the Probate, Divorce and Admiralty Division, four other judges of the Supreme Court, two members of the Bar Council, and two solicitors of whom one must be a member of the Council of the Law Society.
It is clear from the wording of Section 99 of the Judicature Act that no rule can be made without the Lord Chancellor's concurrence. This is no accident. The Lord Chancellor has been a necessary concurring authority in the making of rules since at least 1881, and in the case of county court rules he is empowered by Section 102(8) of the County Courts Act, 1959, to allow or disallow or alter rules submitted to him by the County Court Rule Committee, of which he is not a member.
It is thus plain that it has been the deliberate intention of Parliament to give to the Lord Chancellor the final responsibility for deciding whether a rule approved by the specified number of members of these committees should be made, and in so providing Parliament has no doubt borne in mind the obvious point that, should rules be made by one of the rule committees and be challenged in Parliament on a motion to annul, the Lord Chancellor, or the Attorney-General on his behalf in the House of Commons, would have to defend them and it would put the Lord Chancellor in a very difficult position if he had to defend rules in the making of which he had not concurred and which could be contrary to Government policy or inconsistent with a decision already taken by Parliament, or both.
This, I hope, will be recognised as a point of very considerable substance in this controversy. It would not be acceptable to anybody on either side of the 455 House if, in the hypothesis of a rule committee making a recommendation which was manifestly contrary to the intention of Parliament as previously expressed, the decision of the rule committee should prevail. It is this consideration which has the result of the provisions in the Judicature Act taking the form that they do.
It is true that on the strict wording of the Judicature Act the Lord Chancellor could make rules notwithstanding the opposition of seven members of the Committee, provided that he could get four members to support him. In practice, the Lord Chancellor has never made rules against the wishes of the majority of the Committee, and there is no practical possibility of his doing so.
Some such provision as Section 99(4) is necessary, however, because rules may have to be made at comparatively short notice, and in circumstances in which it is impracticable to assemble the full Committee. The object of the provision is not to enable the Lord Chancellor to override the majority but to create a reasonable quorum.
There is the further objection to the Amendment that if it were desirable to provide that majority approval was required such a provision should extend to all rules made by the rule-making authority and not merely to rules under the Bill. The right hon. and learned Gentleman would agree that there is no special feature affecting hearsay rules which justifies such treatment for them.
The Amendments are defective in the following respect: rules of court may be made under the Bill not only in respect of the Supreme Court but any court or tribunal to which the Bill is relevant. In particular, the Clause contemplates both county court and magistrates court rules. The effect of the Amendments would be that these rules could not be made without the approval of the majority of the Supreme Court Rule Committee.
That is merely a criticism of the drafting that I make with every respect. I have no more to say on the main issue. I have shown the basis of our objection, and I must ask the House to resist the Amendment.
§ Sir P. RawlinsonI accept that this is a new proposal, but I think that a new 456 practice has developed. It is because we fear that that is so that we take this, the first opportunity, to introduce a new proposal that we think is sensible and right. It is suggested that if the Rule Committee proposed a rule which the Lord Chancellor did not like it would be difficult for him or the Attorney-General to defend it. But surely he could say it was made by the Rule Committee and that he did not like it, and he would not then have to defend it? Why must Ministers always be defending such things, and the whole life of the Administration be thought to depend on such matters?
Parliament should say that it should give rules committees power to make rules, not Ministers. It does not matter how distinguished the Minister is, the rules committee should have the final say. That is why we have put forward the Amendment, for we understand that a practice has grown up only very recently under which a veto will be imposed on the Rule Committee.
However, I appreciate that there are some defects in the drafting of the Amendment, for which I am wholly responsible. For that reason, and that reason alone, I shall not invite my hon. Friends to join me in pressing the Amendment to a Division. But I give a very grave warning to the Government that the Rule Committee should be given this power and should be able to exercise it.
I beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.