DETERMINATION OF DEFENDANT'S TITLE (Hansard, 13 July 1977)

§ Mr. Lee
I beg to move, That the clause be read a Second time.
Although extensive in wording, the new clause is on a narrow point. It is incompatible with Clause 12(7) which seeks to maintain summary jurisdiction in disputes of title. I seek to remove these vexed questions from magistrates' courts. Where a defence requires investigation of the title of a defendant—to determine, among other things, whether he is a trespasser—then, so far as the matter is before a magistrates' court, it should stand adjourned and be determined by the county court, the appropriate civil court. Where a defendant specifically claimed that he was not a trespasser, and the alleged offence was triable in the Crown court, that matter 606 would be determined in the Crown court by the trial judge there.
The new clause introduces a somewhat novel procedure. It is not quite novel, I hasten to add, because the Minister of State has just thrown a quizzical glance in my direction. One of the zanier consequences of our membership of the Common Market is that certain matters may be adjourned in our courts, and subjected to the courts of the Community. Alleged offences under the Immigration Act as they appertain to citizens of member States of the EEC are an example of this. Therefore the principle of standing a matter over for another court to determine is not as novel as it seems at first sight.
The principle behind the new clause is that magistrates' courts have enough to deal with now. Over the years the practice has grown up—rightly, I believe —that their ancient civil jurisdiction should be whittled away. This has now largely gone. Disputes involving the receivership of the Metropolitan Police under the Metropolitan Police Property Act is an example of the surviving quasi-civil jurisdiction exercisable in a magistrate's court.
However, on the whole it has been the practice for a long time to remove from the magistrates' courts all noncriminal matters, other than domestic court matters. It would be a retrograde step if we now foisted on the magistrates' courts the task, to which I do not think that many of them are equal, of coping with the vexatious problems of landlord and tenant.
It is enough for them to have to cope with Stone's Justices Manual, of which there are two voluminous volumes, without dealing with Archbold and Megarry as well. For these reasons I move this new clause, although I do not intend to press it to a Division, so the Minister can relax. I would like to hear how the Government expect to cope with these matters in courts of summary jurisdiction which are, on the whole, quite unused to dealing with civil law in all its complexities.

§ Mr. John
I looked quizzically at my hon. Friend the Member for Birmingham, Handsworth (Mr. Lee) not because of the novelty of this subject and its correlation 607 with EEC legislation but because of the fact that we debated this subject in Committee at some length. The objections I then raised to this proposal still remain valid.
I believe that the proposal is unfair for two reasons. First, under the new clause in an offence which may be triable either way the defendant would have to go to the Crown court, although he might prefer to go to the magistrates' court. It would be unfair if the matter, having gone to the county court for determination, were to be open to different standards of proof. There would be a balance of probabilities rather than any question of the matter being adjudged to be beyond reasonable doubt. In other words, there would be an unfair difference in terms of standard of proof.
Secondly, the clause is impracticable because even the rules of court, of which I spoke so lovingly earlier, would be unacceptable if the matter were adjourned in such a way as to avoid the inherent delays involved in reference to the county court and determination there. If there were a separate judgment on title in the county court, there would be a separate avenue of appeal from the county court on the subject of title and it might be a long time before the case fell for determination. Therefore, Parliament would be wrong to pass such a clause since its effect would be gravely to prolong the time over which a person might be subjected to a trial.
The clause is unnecessary because there is an unqualified right of appeal from the magistrates to the Crown court upwards. That would involve a defendant who was dissatisfied in pursuing a complete rehearing of the case, including determination of the trial. Therefore, the kind of scrutiny which has been mentioned would take place on appeal.
I do not object to the proposal from any argument about the superiority of magistrates or their great familiarity with trespass, but because the alternative is worse. In practice the determination whether a man is a trespasser in most cases will not be all that complex. Frankly, I do not believe that Megarry or any textbook on landlord and tenant law would be necessary to decide whether a person is a trespasser, and I shall leave the matter there.

§ Mr. Fairbairn
I fear that according to the law of England I shall be called a trespasser in this matter. This is not a concept known to the criminal law of Scotland, and indeed it has now been abolished in the civil law. Therefore, I find the whole of this clause astonishing.
Obviously Labour Members do not understand the simple way in which we in Scotland approach these matters. Let me illustrate how I, as a simple episcopalian Jacobite, approach the subject. Until recent legislation was enacted, we in Scotland did not recognise the concept of the magistrates' court in the sense of having unqualified people to sit in judgment upon others. We had various summary offences which were categorised under legislation enacted in 1892. All local authorities were asked to send in lists of the matters that troubled them and to suggest appropriate penalties. The penalties ranged from sums of£5 to£30. From Oban, for example, would come cases involving forgery of pound notes and from, say, Stornoway we would hear of cases involving offences related to the leaving of too many perambulators on pavements, and all the rest of it. That is the sort of thing that would be considered appropriate, as a trivial offence, to be judged by lay people.
We do not have this concept of magistrates' courts or that major criminal offences should be tried by a single person or a number of persons unqualified in law, acting as the Bench. If the accused in Scotland are to be judged by their peers, their peers are on the jury. It is appropriate that they should be on the jury and that those who are in judgment and advise on the law should be trained in the law and qualified. That is the almost unexceptionable rule in Scotland. The only exceptions involve trivial offences. That is something that England could learn to its immense advantage. If England did that, the amendment that has been proposed would not be necessary.
I find it extraordinary and amazing that there should ever be a situation in which a person should be put into a position as the accused—or whatever one calls it in England, defendant or prisoner—in which he is able to say that he does not think that the court is good enough because it is a lay court without a jury and that he would prefer to be judged by his peers and a professional judge. I 609 shall raise this point on other amendments because it is an important difference from which we both have much to learn. There is no such thing in Scotland as election of how one is to be tried.
We have, of course, the independent prosecution service and I hope that hon. Members who represent English constituencies are moving towards favouring that. It is for the prosecutor to say that he takes the view, for example, that an act of driving is worth solemn procedures or that it should be judged through a simple procedure. In Scotland, whether there is a solemn or a simple procedure one is inevitably tried by a qualified judge who has been trained and a member of one of the branches of the legal profession for at least five years and who is not just a layman who has been trained in some odd way. Therefore, the problem does not arise in Scotland.
I find it astonishing that, when the rearrangement of the courts was carried out a few years ago and the Crown courts were created, it was decided that matters which may be serious—and which, as this case has demonstrated, inevitably require a training in law to decide such points as the concept of trespass—should be left to persons who are utterly unqualified to make such decisions. They have no training and are unlikely to be able to comprehend such matters. I am not necessarily saying that we who are trained can comprehend it, but at least we understand that such matters are the purpose of our training.
I hope that the Minister will accept as a matter of principle that if we are going to change the law and its procedures —and commissions are presently investigating those matters—the concept of lay courts, which inevitably gives rise to a choice for the accused person in deciding whether he will be tried in one way or another, is an extremely unsatisfactory and improper penalty to pay for the division between the professional courts and the lay courts in serious matters. That is a division that we do not have in Scotland. It is artificial, wrong and improper. It has no justification in jurisprudence, in morality or in law.
There is an extraordinary contradiction in the provision that a defendant may 610 claim that he was not a trespasser. I do not know upon what matter of proof he will have to claim that. Will it be enough just to say "I was not a trespasser."? Will he have to establish a balance of probability, which is the civil definition, or will he have to satisfy a jury or magistrates? Will it be enough for his solicitor to say "Look old chap, just write down that you were not a trespasser and you will get out of the magistrates' court and into the next one."?
It would be quite wrong that a person could be advised by a legal adviser to take advantage of a technicality in order to change the forum in which he is tried. We have heard great criticisms of judicial sentences and one allegation is that barristers know that Judge X is a brute, that Judge Y hates rape, that Judge Z does not mind homosexuals, so the counsel plead, falsify, say that a witness is absent and so on in order to get before the right judge with the right client. There have been some unjust criticisms of judicial sentences. This is one of the most difficult human things to do. Too many people merely compare the results and take no account of the human difficulties involved. If a client came before those who make these criticisms, before me and before hon. Members opposite, the sentences would probably be different—and that is an indication of our fallibility rather than of the fallibility of the system. Surely it is wrong that a defendant, merely by saying that he was not a trespasser, should be able to change the forum and, to some extent, choose his judge and accuser.
These are important matters. Whatever happens, there should not be an arbitrary election by which an accused person is able to choose his forum, his accuser and his judge. It appears that we could alter a result in our favour if we took certain steps that we believed to be in our favour. They would not be steps that we were entitled to take but steps that we believed might happen to suit us. If the new clause is accepted, a lawyer would be bound to advise a defendant that it was in his interests to say that he was or was not a trespasser. Apparently no proof would be required. This worries me.
I appreciate that the problem arises out of the system of lay and professional courts in England. If, God bless them, 611 the English had the sense to abolish that difference, the matter would not arise. I have great sympathy with the new clause, and perhaps it is an indicator that, when the Royal Commission on criminal procedure and pre-trial procedure is meeting, consideration should be given to whether the law of Scotland, naive and simple though it is, might not help to overcome some of the entrenched difficulties of which this problem is merely a derivative child. This would never be necessary if there were not an artificial division between lay and professional courts, and if anything was an example of the difficulties that they create, this is.
I hope that I have not been hostile to the principle of the clause, but it arises from a profound schism which is a wrong one in the approach which the law of England makes to a judgment of these matters.

§ Sir M. Havers
I must express regret that the hon. Member for Birmingham, Handsworth (Mr. Lee) has exhibited such poor drafting skills, because this clause must be shot down. It is full of holes. Let us look at one or two of them.
The defendant claims that he is not a trespasser. At what stage does he claim that, and who claims it? He is found upon premises. He is arrested and charged. He is remanded, and finally the case comes on. He says nothing, except that he pleads not guilty and raises no defence at that stage.
All the evidence is called—or if it is in London some of the evidence is called—and the case is adjourned for six weeks. He is then brought back, two witnesses are called, and the case is adjourned for another six weeks. All those months later he goes into the witness box and his solicitor asks "were you a trespasser?", and he says "No". That is a claim.
Three months after the case has started in court, which might be six months after he was arrested, the court is faced, having heard perhaps eight or 10 witnesses, with a defendant who claims that he is not a trespasser, or, on looking at subsection (1) (a), with the fact that it is an offence triable either way because he had an offensive weapon. The court then has no option but to commit the case to the Crown court. The defendant might not want that, but there he goes.
612 The magistrate then turns himself into an examining justice. The defendant has not been warned, and he does not have to give evidence. Suddenly what was an ordinary summary proceeding becomes a committal proceeding. None of the witnesses who have attended over this period of time has been bound over to give evidence at the Crown court. They have all to be brought back. They might not be available, so the court has to adjourn again for them to be available. All the witnesses who turn up may not be necessary, and again there is an enormous waste of public time. Eventually, because the case will not finish that day—the court will run out of time; certainly if it is a stipendiary court in London—there is another adjournment.
As this is no longer a summary proceeding, the whole business has to be gone through again. The clerk might have made a few notes, but now he has to take depositions. The witnesses have to be sworn. The whole procedure is carried out at great length, and everything is recorded. Difficulty might also arise because, these being commital proceedings, the defendant has to be served with the statements of the witnesses. This gets us into the most almighty difficulty.
What about the other provision? The defendant claims that he is not a trespasser, and the case is tried summarily. The case is two-thirds of the way through, huge costs are involved—because the defendant is almost certainly legally aided—and the case has to be adjourned and ends up in the county court.
What happens there? Are there any pleadings? Is there a writ or summons? How does the county court get jurisdiction? What document does the judge have? Does Mr. Snooks suddenly turn up, and does the court usher say "Your Honour, Mr. Snooks turned up last week at Willesden magistrates' court and when he gave evidence he claimed that he was not a trespasser, so the court could not try the case. It sent it to you, Your Honour"? His Honour says "Let us have a look. Where are the documents."? In fact, there are no documents.
Who is to prosecute? Who is the plaintiff? Is it the police officer? Is it the solicitor from the Metropolitan Police? Does that solicitor suddenly put on 613 points and a wing-collar and gown—not a wig if he is a solicitor. With no pleadings surely he cannot suddenly turn himself into a county court advocate and be allowed to have the case tried in the county court. This is "Alice Through the Looking Glass".
What about the burden of proof? On what burden of proof is the county court judge to operate? Subsection (3) states: A county court shall have jurisdiction to determine any question as to any matter referred to it under subsection (2) above or as to any matter which is or may become material for determining any such question. I must tell the hon. Gentleman that to me that is totally meaningless. I suspect that no county court judge anywhere in the United Kingdom—I apologise to my hon. and learned Friend the Member for Kinross and West Perthshire (Mr. Fair-bairn); I should say anywhere in England and Wales—

§ Mr. David Lambie (Central Ayrshire)
This is wasting time.

§ Sir M. Havers
I assure the hon. Gentleman that I am not deliberately wasting time.

§ Mr. Lambie
You are.

§ Sir M. Havers
No one in England, or Wales, will understand the subsection. It is totally meaningless.

§ Mr. Lee
I accept many of the right hon. and learned Gentleman's strictures—in many ways this is a cock-shy—about the clause demanding far too much of courts of summary jurisdiction in England and Wales. I quite accept that this is not the best piece of drafting. I moved the clause in a tentative fashion. I accept much of what the right hon. and learned Gentleman says.

§ Sir M. Havers
I am grateful to the hon. Gentleman. Certainly he does not accuse me of wasting time.

§ Mr. Lambie
He is another lawyer. He is used to you wasting time.

§ Sir M. Havers
If the House is wasting time, it will be time wasted by the hon. Gentleman, who persists in interrupting me. If he wants to interrupt me, let him get on his feet and do so. I give way to him now. I wait for him to intervene.

§ Mr. Lambie
I shall not waste time.

§ Sir M. Havers
I notice that his courage disappears when he is invited to intervene. All he does is speak from a sedentary position. I give way to him.

§ Mr. Lambie
I said that I shall not waste time.

§ Sir M. Havers
That proves exactly what I was saying. It is so easy to be brave from a sitting position. The hon. Gentleman's courage seems to evaporate when he is invited to intervene. I am prepared to wait.

§ Mr. Lambie
Sit down and let the Minister speak.

§ Mr. Deputy Speaker(Mr. Oscar Murton)
Order. The hon. Member for Central Ayrshire (Mr. Lambie) must not keep interrupting from a sedentary position.

§ Mr. Lambie
He is wasting time.

§ Mr. Deputy Speaker
Order. The right hon. and learned Gentleman has every right to speak, as has any other hon. Member. He was called and he was speaking. If the hon. Gentleman wishes to intervene and the right hon. and learned Gentleman is prepared to Give way, he may intervene. Sir Michael Havers.

§ Sir M. Havers
I give way to the hon. Member for Ormskirk (Mr. Kilroy-Silk).

§ Mr. Kilroy-Silk
I intervene with the deepest respect to the right hon. and learned Gentleman. I have been listening with great interest to his remarks. I have found his speech delightful. However, he will recall that earlier in the evening he complained that some of my hon. Friends were making speeches and wasting time, although they thought that their remarks were constructive. I do not suggest that he is wasting time—certainly he is not doing so deliberately—but he should know that my hon. Friend the Member for Birmingham, Hands-worth (Mr. Lee) has already admitted that he does not want to press the clause. In those circumstances I cannot understand why the right hon. and learned Gentleman and the hon. and learned Member for Kinross and West Perthshire 615 (Mr. Fairbairn) are spending so much time on a clause that they regard as totally inadequate.

§ Sir M. Havers
lf a clause is moved, which one assumes will be considered in places other than this Chamber, it is important that, if one has justifiable criticisms, they should be made. The criticisms should be made here before professors of law at the universities start looking at the matter. The hon. Member for Handsworth is a lawyer of some repute. If these criticisms are not made here, the chance to answer them will be denied. That is why I have spent a little time—not very much, I hope—on this matter.

§ Mr. Lambie
The right hon. and learned Gentleman is wasting time again.

§ Sir M. Havers
Yet again a sedentary interruption. I get very tired of interruptions by an hon. Gentleman who has not the courage to get to his feet to make his objections.

§ Mr. Abse
The comment made by my hon. Friend the Member for Central Ayrshire (Mr. Lambie) is well deserved by the right hon. and learned Member for Wimbledon (Sir M. Havers) in view of his criticism of speeches made by Labour Members earlier. Surely it behoves those of us who are lawyers to apply ourselves to a Bill relating to the criminal law. At the same time, there are many important matters to be dealt with. My hon. Friend the Member for Birmingham, Handsworth Mr. Lee) has indicated that this is a tentative proposal. Therefore, there is no point in the right hon. and learned Gentleman, in this exaggerated tone, assuming that everyone else is at fault if they begin to find his speech somewhat unnecessary, otiose and tiresome.

§ Sir M. Havers
The hon. Member for Pontypool (Mr Abse), if anyone, makes perhaps the most tedious and boring speeches to which we have had to listen, not only tonight, but on other occasions. He should remember that those who live in glass houses ought to be very cautious. We have listened patiently to otiose speeches by the hon. Gentleman and been bored out of our minds, yet we have not interrupted him.
I have made the various comments that I wanted to make, and I have made them seriously.

§ Mr. Fairbairn
There is one point that concerns me about this matter, should it be considered in another place. If a prosecutor wished to remove a case from a magistrates' court to a Crown court, he could easily lead a defendant into admitting or claiming that he was a trespasser by putting to him "You were not a trespasser, were you?", or by some other means, and thereby get a change of forum whether the defendant wanted it or not. That would be very much against the interests of the defendant, because he would have no control over the matter.

§ Sir M. Havers
I am grateful to my hon. and learned Friend for that intervention. That is yet another criticism that can be properly made of this clause.
When a clause resulting from a great deal of careful thought is put before us —it has obviously not been put together in a few minutes—despite the criticisms that have been made, it deserves a serious reply. If my criticism is harsh, I think that I know the hon. Member for Hands-worth well enough to know that he will not resent it. However, it is unfair to say that, because I am dealing with the matter seriously, I am wasting time. I think that the House should reject the clause.

§ Mrs. Kellett-Bowman
I was extremely interested in the cogent reply given by my right hon. and learned Friend the Member for Wimbledon (Sir M. Havers). However, I think that he emphasised too much the cost to the taxpayer and to the Legal Aid Fund. I think that the most important aspect is that, while all this is going on, the person in the house is possibly delaying major redevelopment. If his house were in the middle of a proposed development area, he could be keeping many people out of new homes. Such an example happened with a development in the middle of Camden when I was vice-chairman of the housing committee. One person in a house in the middle of property that had been boarded up prior to demolition for redevelopment could prevent the bulldozers from moving in and getting the job going. He could prevent hundreds of families from being housed.
It is lamentable that a clause such as this should be put forward. The process could be like a ping-pong match, with the proceedings going from the magisrates' court to the county court and back 617 again. That could go on for months and during that time costs would mount and, more important more and more people would be deprived of a roof over their heads. It is a good thing that the hon. Member for Birmingham, Handsworth (Mr Lee) is to withdraw the clause, but it was essential for the guidance of the other place that the matter should be fully dealt with here.

§ Mr. Robert Cooke (Bristol, West)
My hon. Friend the Member for Lancaster (Mrs. Kellett-Bowman) speaks not as someone from the legal profession but as someone who can draw on personal constituency experience of these human problems.
I have followed the proceedings on this Bill both in Hansard and in the Press. It is high time that an ordinary constituency Member with long experience of the way in which people can mess owners of property about, to the great detriment of society as a whole, said something of his experience in 20 years and more in this House. I can claim all of that.
Throughout those years people who took up residence and moved into houses and took them over had the law on their side. Anything in this Bill which seeks to put the law firmly on the side of the property owner who can then make decent use of that property for decent people to occupy has my support.
I hope that the debate will not be too truncated. I hope that the lawyers will have their field-day and will get the Bill right so that people who break into property, and assume possession of it will not have the law on their side in the future.

§ Mr. Tim Sainsbury (Hove)
Like my hon. Friend the Member for Bristol, West (Mr. Cooke) I have the advantage—or, on some occasions the disadvantage—of not being a lawyer. Perhaps those in that profession will therefore accept my apologies if my grasp of the niceties of the wording is less than perfect.
Aspects of this matter command the support of my right hon. and learned Friend the Member for Wimbledon (Sir M. Havers). Experience of my constitu- 618 ency has shown me that one of the most adverse consequences of the occupation of premises by someone who under Part II would be a trespasser can be the delays in getting premises into a state fit for occupation. The argument advanced from my side of the House about the delay that would result from acceptance of the new clause is particularly relevant.
There was a case in my constituency in which a housing association—and many hon. Members today will have seen the magnificent exhibition of the work of the housing associations—was modernising premises which were originally designed for single-family occupation. The Premises were much too large for one of today's families. During the course of the work part of the premises were occupied by someone who, under Part II would be regarded as a trespasser. The delay resulted in extra costs which fell in part on the housing association and in part on the taxpayer and ratepayer. The presence on premises of a trespasser inevitably leads to delay to any works being carried out to those premises, and any circumstances which tended to increase that delay should be resisted.

§ Mr. Robert Cooke
The delay might be reduced if the gas, electricity and water authorities complied when the owner of the property asked for supplies to be cut off. My experience has been that all too often, when the owner of a property asks for supplies to be cut off, it is not done and, therefore, that the people occupying the property have been able to carry on for yet more days. I hope that my hon. Friend will address himself to that subject. It may be that he has had experience in Hove which can help us all.

§ Mr. Deputy Speaker
The Chair must point out that New Clause 18 is concerned solely with court procedure. Speeches are going a little wide of that mark.

§ Mr. Sainsbury
I am grateful for that indication of the correct area to which we should address our remarks.
It seems to me that the essential point is the nature of the court proceedings, and this clause is concerned with what the nature of the court proceedings should be. I am sure that even those of my hon. Friends who are lawyers will agree that the court proceedings suggested in the 619 clause are likely to be a great deal more lengthy and time consuming than those which would result from the Bill being enacted without the clause. My argument is that, if we are to make these court proceedings more lengthy, inevitably we shall delay bringing into beneficial occupation all sorts of categories of premises and we shall increase the costs not just to residential occupiers but in some cases to taxpayers and ratepayers.
My hon. Friend the Member for Bristol, West pointed out that the other remedies which have been tried without the benefit of Part II of the Bill, such as trying to get gas, electricity and water supplies turned off, do not work. Therefore, there has been general support for what is proposed in Part II, and in the South Coast area which I represent there has been a great deal of public disquiet and publicity in the local Press and on local radio about the consequences of illegal occupation of premises by persons who would be trespassers under Part II of the Bill.

§ Mrs. Kellett-Bowman
The fact that most local authorities are allowing people to go into short-life properties wholly cuts away the feet from people who wish to trespass, because they are doubly cheating in that they are not only doing the person who should be there out of the property but also the next person and the next person again on the waiting list. Before local authorities allowed the use of short-life properties, there was much more excuse for trespassing.

§ Mr. Sainsbury
I agree with my hon. Friend. If it could be shown that generally local authorities were adopting an obstructive attitude to the use of short-life properties, there would be a greater justification for lengthening the court processes which were necessary to establish that a trespass existed and that in consequence the occupier of the premises should be removed.

§ Mr. Fairbairn
I do not want to cast aspersions on the processes in the law of England, but, as I understand it, if when the magistrates were about to give their verdict the defendant studied their expressions and decided that they were likely to find against him, that would be enough for him to say "I was not a trespasser", and film the matter would have to be remitted to the Crown court.

§ Mr. Sainsbury
I take my hon and learned Friend's point. The phrase proceedings shall be adjourned to the county court would cause consternation in East Sussex.

§ Mr. Ian Gow (Eastbourne)
And in Eastbourne.

§ Mr. Sainsbury
Eastbourne is in East Sussex. In all parts of East Sussex there have been considerable problems, not only with trespassing on premises by persons who have a long-established connection with the area but by—

§ Mr. Kilroy-Silk
On a point of order, Mr. Deputy Speaker. Is it in order to return constantly to the squatting conditions in East Sussex? It has nothing to do with the clause, which deals with court procedure. May we please stick to the issue?

§ Mr. Gow
Further to that point of order, Mr. Deputy Speaker. I bitterly resent the hon. Member's reference to the unimportance of East Sussex. It is an area of the greatest importance, not least because all hon. Members who represent East Sussex constituencies are Tories.

§ Mr. Robert Cooke
Further to that point of order, Mr. Deputy Speaker. There is no doubt that some of those of whom we are speaking make their way to Bristol when they are evicted from East Sussex. I have seen them.

§ Mr. Deputy Speaker
We must not begin a debate on the geographical complexities of the United Kingdom. We were dealing with subsection (1) of New Clause 18.

§ Mr. Fairbairn
Further to that point of order, Mr. Deputy Speaker. I am unaware of these matters, but are there not county courts and Crown courts in East Sussex, or is the area outside the law?

§ Mr. Deputy Speaker
Hon. Members must leave the question of East Sussex, or any other county, out of this.

§ Mr. Sainsbury
Perhaps I may return to New Clause 18. Before the points of order I was illustrating the case for not lengthening and delaying the court procedure process for dealing with trespassers by drawing attention to a relevant argument. [Interruption.>]

§ Mr. Fairbairn
On a point of order, Mr. Deputy Speaker. Is it necessary that we should have constant sedentary interruption?

§ Mr. Deputy Speaker
I shall deal with interruptions.

§ Mr. Sainsbury
The public disquiet about these offences has been considerable. It is heightened by the feeling in some parts of the country that the offence is committed mainly by people who come from outside that area and who have no established residential, family or employment connection with the area. They sometimes come into the area and occupy property that would otherwise become available in due course for occupation by those living in the area and, in many cases, by those who have lived there all their lives and who have been on the housing waiting list. As a consequence, the opportunity of the property being occupied by a resident of the area is prevented. In the absence of the provisions of Part II of the Bill, it has been prevented for a long time.
1.15 a.m.
Therefore, I entirely support those of my hon. Friends who argue that the new clause would appear to allow a defendant to delay proceedings not only by claiming that he was not a trespasser but even by delaying that claim until the last possible moment in the preliminary proceedings before magistrates. The people who have come into areas such as mine with the clear intention of taking unfair advantage of the availability of premises undergoing conversion are scarcely the sort of people who will hesitate before taking advantage of every opportunity to delay the proceedings which would restore the premises to their lawful owners and allow the improvement of the premises to continue.
We must bear in mind the sort of people who are likely in the vast majority of cases to be subject to proceedings under Part II. If we provide them with additional and unnecessary means of delaying the court proceedings by including the clause in the Bill, the inevitable consequence will be that premises will not be available to those who have had the first and best claim on them for a long time. Costs will then fall on the owners, the ratepayers in practically all cases, and the taxpayers in some cases, because of 622 the increased amounts to be paid for conversion and improvement and the high costs of court proceedings.

§ Mr. Robert Cooke
If the person concerned claimed that he was not a trespasser, would he therefore have to meet the rate bill for the property? After all, he has the benefit of possession and is responsible for it during the long delay. Or is the claim not to be a trespasser yet another ploy?

§ Mr. Deputy Speaker
That matter does not arise under the clause.

§ Mr. Sainsbury
Among the costs we must consider are those incurred by the Crown in proceedings in Crown courts, much greater costs consequent not only upon delay but upon more formal and expensive proceedings.
I can find in the new clause nothing that commends itself to me as an addition to the Bill, which includes not perfect but greatly improved legislation for dealing with what is recognised in my part of the country as a very serious problem, one that has given rise to a great deal of public disquiet. Therefore, I entirely support those of my hon. Friends who have opposed its inclusion in the Bill.

§ Mr. Kenneth Clarke (Rushcliffe)
Labour Members have referred to the rather tentative way in which the hon. Member for Birmingham, Handsworth (Mr Lee) moved his new clause. It is taking a tentative approach rather far for the hon. Gentleman to have absented himself from the debate for the greater part of the discussions upon his own new clause. [Interruption.] I gather that the hon. Member for Ormskirk (Mr. Kilroy-Silk) is complaining about the delay that the discussion of the clause is causing to the passage of the Bill. We are entitled to take part in legitimate discussion on the delay in criminal proceedings, in view of what would be the result of the new clause if it were ever enacted.
The clause is part and parcel of the views of the hon. Member for Hands-worth on the laws proposed in the Bill to protect residents against squatters. It is the hon. Gentleman's desire, and, I suspect, the desire of a number of his hon. Friends, to try even at this stage—when a large part of the Bill is designed to introduce new protection for residential 623 occupiers—to give squatters the opportunity to delay legal proceedings almost interminably, in order to continue what any ordinary person would regard as unlawful and unfair occupation.
The methods of delay which are built into the drafting of New Clause 18 are ingenious and considerable. They show completely the way in which those who support the present practice of squatting in many parts of the country and prepared to try to devise, even at this late stage, a new clause which I regard as providing a barrack-room-lawyer type of defence against any proceedings.
For instance, it says that any proceedings should be initiated in the magistrates' court where defended by the accused person. The first delay in procedure would be in the present protracted state of the lists. It takes a consideable time to get a date before a court, especially when one has to be specially appointed so that in a case where a squatter proposes to challenge, he can, without giving evidence, obtain adjournments for several weeks without a hearing. As the clause stands, it does not specify any stage in the proceedings at which the special question may be raised of whether the defendant decides that he will now admit that he is a trespasser.
What happens after a number of adjournments, once a magistrates' court is convened which appears to have the available time, say a morning, to consider a defence under Part II, and once the magistrates are nearing a close? I do not necessarily accept what one of my hon. Friends said that it could be when they return from having retired to consider their vedict. It could happen when the defendant is giving evidence after the prosecution have closed their case and called all their witnesses and after they have perhaps been cross-examined at great length by the defence to play for time. It would be possible for the defendant, in a passing reference, in his evidence, to raise the defence in subsection 2(a) of this new clause, to claim that he was not a trespasser. As the clause stands, he would not need to substantiate it. It might be the most preposterous claim, in the opinion of the magistrates. It might be apparent to the ordinary opinion of anybody that it is not possible for him to claim he was not a trespasser. Never- 624 theless, he has only to claim, late, that he was not a trespasser, in a passing reference, and the magistrates are no longer seized of the matter. Once he makes that passing reference, the magistrates take no further proceedings and the question has to be adjourned to the county court for the special question to be determined.
Apart from the special question, a relevant matter which should concern the House more widely is that it takes a long time not only to get contested cases before magistrates, but also to get a case listed in the county court. Before one gets the case listed, someone has to decide which question the court will have to hear argued.

§ Mr. Robert Cooke
My hon. Friend says that that will take a long time, but some of us are not lawyers, so can he give us any any idea how long it will take to get a case in?

§ Mr. Clarke
I can. The waiting time for cases, after all the preliminary stages have been completed, is some months before the matter will get a hearing in any of the provincial cities which I know. Given that the defendant has made his claim that he is not a trespasser, somebody has to determine which question the county court will be asked to decide.
The hon. Member for Handsworth was keen to protect squatters from any consequences of criminal acts and in this he has provided another loophole for further argument and for preliminary proceedings on that question.
Subsection (3) of the New Clause 18 reads: A county court shall have jurisdiction to determine any question as to any matter referred to it under subsection (2) above or as to any matter which is or may become material for determining any such question. Someone has to decide first what question has been referred to the county court and what matters are or may become material for determining that question. I anticipate that that will require some preliminary hearing, either by the magistrates' court or by the county court, to determine precisely what is the special question that the county court proceedings will have to decide.
There is no procedure laid down in the new clause. I see that under subsection (5) the Lord Chancellor is to be given 625 the special pleasure of trying to make such rules as he can to enable this procedure to operate. Presumably the magistrates' court, once the defendant has made the casual assertion that he is not a trespasser, will have to formulate a question for the county court to answer.
That is the procedure which is analogous to what the hon. Member for Hands-worth touched on, and to which he objects, whereby matters can be adjourned from the courts of this country to the courts of the Community. If towards the end of the day the defendant suddenly decides to claim that he is a trespasser, the magistrates' court will be lucky if it does not have to adjourn again to a further special proceeding in order to hear submissions as to what question or questions the county court will be asked to determine.

§ Mr. Adley
Having dealt with subsection (5), is my hon. Friend intending to deal with subsection (6)? If so, will he endeavour to find out from the hon. Member for Birmingham, Handsworth (Mr. Lee)—he is not here at the moment but he may come back—whether the subsection means what it says, and whether the reference to a Lord Commissioner means that the power vested in the Lord Chancellor by subsection (6) above can be undertaken by any Government Whip? That is what it says. Perhaps we can have some clarification. I have been unable to ascertain what the clause means.

§ Mr. Clarke
I think it means a Lord Commissioner of the Treasury. I had to give faithful service in the Whips' Office before I achieved the ultimate dignity of being a Lord Commissioner of the Treasury. The expression "any Whip" is not a fair description at all of this great and distinguished office.
I was not intending to dwell on subsection (6) because it was not my intention to burden the House with my views on the minutiae of the new clause. It is instructive as to the intentions of the hon. Member for Handsworth that, so determined is he to give every opportunity for a squatter on any occasion to delay any criminal proceedings against him, he has actually made provision for what happens when the Great Seal is in commission 626 and we do not have a Lord Chancellor to exercise his powers. On that occasion, as my hon. Friend has said, a section of the Whips' Office—it has all sorts of extraordinary duties to perform—will be called in to exercise the Lord Chancellor's powers.
The hon. Member for Handsworth, who moved the new clause and left such lacunae of procedure for any criminal squatter to exploit when proceedings are being taken against him, has gone to the most infinite detail to cover every loophole and to ensure that these time-wasting procedures may be open to the squatter at any time.

§ Mr. Adley
I am sure that my hon. Friend would not want to cast aspersions on Mr. Speaker, who presumably selected the amendment in good faith, but will my hon. Friend tell me what he thinks is meant by the words in subsection (6), "by subsection (6) above"? I have scoured the subsections above and can only get as far as subsection (5).

§ Mr. Clarke
I am afraid that my hon. Friend has defeated me. The hon. Member for Handsworth is not here. [Hon. Members: "Where is he?"] No doubt he will return at a later stage. No doubt his hon. Friends, who have patiently listened to the debate, will rapidly bring him up to date on the most important points. I suspect that this peculiar wording is an attempt to put further delaying procedures in the hands of someone who otherwise would be a criminal squatter.
1.30 a.m.
The new clause anticipates that the first stage in the magistrates court could go through a fair number of adjournments until a day was set aside for the hearing. Upon the adjournment, no doubt there would be a further hearing to determine what question the county court would be asked.

§ Mr. Robert Cooke
How many times would a defendant be able to claim illness as a reason for adjournment before the matter reached the county court?

§ Mr. Clarke
Someone who keeps sending notes to say that he is ill is eventually summoned to attend the magistrates' court. But adjournments are easy to obtain because of the pressure of work. There is a widespread belief that the burden of work in the Crown courts, 627 especially in London, should be shared with the magistrates' courts—which themselves are often near breakdown.
If a question is eventually formulated to go to the county court, it will go before a court which is already overburdened and which no one can afford unless he has an insurance company or union behind him, is poor enough to qualify for legal aid or is wealthy enough to litigate. Even then, the number of litigations exceeds the court's capacity.

§ Mr. Robert Cooke
Grants are surely available under the job creation scheme for barristers.

§ Mr. Clarke
It could be said that barristers get grants from legal aid, but they do not look for such grants to conduct the time-wasting defences permitted under the new clause. It is not just a question of this new form of hearing taking its place in the queue at the county courts. Their lists are so overcrowded that they now have preliminary hearings to get some sort of pleadings, to get an estimate of the time the hearing may take and to compose a list. It is only after that sort of delay, which may be months, that the court will proceed to a hearing.

§ Sir M. Havers
Would my hon. Friend estimate not only the time which may be needed to complete the pleadings but the delay which would follow them before the case could be heard?

§ Mr. Clarke
My right hon. and learned Friend does not often go into the county courts. This is one area in which my experience might rival his. Take the most straightforward county court case of an action where someone has been run down, and personal injury has been suffered. If it is proposed to contest the case and to get a judgment of some kind, it will probably take 18 months from the date of the accident. That is assuming that there are efficient solicitors on both sides, acting with considerable expedition.
I do not believe that any county court judge would raise his eyebrows on discovering that the case that he was hearing related to an accident that had occurred two, or even three years before. Part of that time is taken up in the preparation of the case, and of the pleadings and so on, and part is taken up in waiting for the hearing. The latter is a matter of months in almost every centre.

§ Sir M. Havers
If a man starts out in a magistrates' court, what will happen when he goes to the civil court?

§ Mr. Clarke
It depends on the time it takes to get to the county court judge who is determining this novel question. I would think that it is most unlikely that anything less than a year would have elapsed, and that applies in any centre in this country. But that is not the end of the day. We are talking about the preliminary question. My right hon. and learned Friend is assuming that the case has been referred by the magistrates' court at an earlier stage. Even then we are only half-way there. The county court will answer the question and determine whether the defendant is a trespasser in so far as the county court can determine it. When that is clear, the case is remitted once more to the magistrates' court. Presumably that means that the magistrates' court will have to be reconvened, and pick up the case where it broke off some months previously. Maybe I am doing the hon. Member for Handsworth an injustice, but it is less of an injustice than it would be if he were here.

§ Mr. Edward Gardner
Perhaps my hon. Friend would satisfy my curiosity and explain these proceedings. Is it intended that there should be pleadings by both sides?

§ Mr. Clarke
I think so. I am as baffled as my hon. and learned Friend about the proceedings that are contemplated. Presumably the hon. Member for Hands-worth wants as many lengthy arguments as possible.

§ Mr. Adley
I am slightly concerned about the flutterings of the Government Deputy Chief Whip. Will my hon. Friend have regard to the interventions of my hon. Friends for Eastbourne (Mr. Gow) and Hove (Mr. Sainsbury) about the particular problems such a clause would bring for their areas, and areas such as my constituency?

§ Mr. Clarke
I shall pass to the disquiet that would be caused by delay in the courts and I wish to expose the motives of the hon. Member for Handsworth.

§ Mr. Fairbairn
Would it be necessary for a magistrates' court first to establish that there was a case to answer before it 629 could go to the county court? If so, in what order would the proceedings occur? If the man in question said "I am not a trespasser", could the magistrates decide whether there was a case to answer in relation to the higher court?

§ Mr. Clarke
I cannot answer on the detail of the new clause. If the hon. Member for Handsworth were here, no doubt he could answer.

Hon. Members
Where is he?

§ Mr. Gow
On a point of order, Mr. Deputy Speaker. Since some doubts have been expressed about the intentions of the hon. Member for Birmingham, Hands-worth (Mr. Lee), who introduced the new clause, I wonder whether you have any power to ask the hon. Gentleman to return to the Chamber so that he may assist us.

§ Mr. Deputy Speaker
I have no such power.

§ Mr. Clarke
In the absence of the hon. Member for Handsworth, I shall do my best to deal with the point. It seems to me that as subsection (2) of New Clause 18 stands, the point could be taken by the defendant at any stage he chooses in the magistrates' court proceedings. It is my opinion that the whole purpose of this provision is to provide opportunities for delay.

§ Mr. Clegg
Before my hon. Friend leaves the matter of procedure, could he say who in the county court would be the plaintiff and who the defendant? Would the prosecutor in the magistrates' court be the defendant in the county court?

§ Mr. Clarke
That is a valid point. I am dealing with the situation in the magistrates' court, and I shall be dealing with the county court's position, and I shall also deal with any point that my hon. Friend the hon. Member for Harborough (Mr. Farr) seeks to raise.
If we have in mind the first magistrates' court proceedings and take the premise which I advanced a little earlier, we see that the whole purpose is to enable an otherwise criminal trespasser to delay matters. The opportunities for protracting the proceedings in the magistrates' court are endless. The magistrates' proceedings could be most protracted, with 630 the examination of witnesses and all the rest of it. It is not unknown in magistrates' courts for cases to be part heard. If the case is not completed on one day, it goes on to another day. If the case goes on for longer, it may have to be reconvened on a future date because the same clerk may not be able to continue on the following day. The magistrates could adjourn the case for some time.
Submissions could then be made that there is no case to answer. Such subsissions could take a considerable time, despite the pained looks on the face of the clerk of the court and the magistrates. Plenty of time lies ahead, because the defendant could then be called and could give protracted evidence about what seems to him to be relevant, confined as he might be by the clerk of the court.
At any stage—it could be as a passing reference on a last question of the cross-examination after hours of evidence or two days of proceedings—the defendant could claim that he was not a trespasser. At that stage the whole proceedings could go no further. The hon. Member for Handsworth would have provided the machinery whereby the magistrates, in despair, would have to abandon the proceedings, put down their pens and put away their notebooks, and set aside a time to formulate a special question to be decided by the county court to which the case would have to be adjourned.

§ Mr. Farr
Some time ago I wanted to ask my hon. Friend the Member for Rushcliffe (Mr. Clarke) whether he had heard what was said by the Home Secretary about the previous group of amendments relating to New Clause 17. The point that my hon. Friend is making so well was put to the Home Secretary in that debate and the right hon. Gentleman laid stress in his answer on the fact that a new, streamlined and quicker procedure had been devised and that many of the tiresome delays to which my hon. Friend has referred would be ironed out by the new procedure and the whole process greatly expedited.

§ Mr. Clarke
I did not have the advantage of hearing the Home Secretary's speech on New Clause 17, but if the right hon. Gentleman talked about the possibility of expediting procedures, that 631 is well. If my hon. Friend were to catch your eye later, Mr. Deputy Speaker, he might well remind the House of what the Home Secretary said. However, the purpose of the new clause is not to expedite procedures during the first hearings in magistrates' courts.
I now turn to a point that was made by my hon. Friend the Member for Harborough, and that is that I had overlooked the second stage of the procedure and hearings in the county courts. I have talked of the difficulties of the burden of proof and the hearing date. Another problem that will give endless opportunities to those who wish to defend criminal squatters to raise procedural points will be about who should open the case. There will be not only the burden of proving criminal guilt beyond all proper doubt but the burden of proving who should open the case. The matter would have been adjourned by the magistrates for determination in a county court.
Should the prosecution open in the county court? There would be a burden upon the prosecution to prove that the defendant was a trespasser. On the other hand, would the defendant open the case because he would have raised the point about not being a trespasser? Would neither of them open the case because neither would have referred the matter to the county court? The first reference would have been made by the magistrates' court, following the dictates of the amendment of the hon. Member for Handsworth that the question should be referred to the county court for determination. Would the clerk of the magistrates' court, in person or through a representative, begin by opening the case and asking the county court for determination?

§ Mr. Gow
Before my hon. Friend leaves this point will he address himself to a matter of great importance? Are we talking about the prosecutions of hundreds of people, of thousands, or of hundreds of thousands? When there is a great rush of emigration from Barking. Bethnal Green and Bristol, North-West to such constituencies of my hon. Friends as Christchurch and Hove, how many people will have to be dealt with under the extended procedures? How many such cases will there be when these 632 refugees arrive from Labour constituencies?

§ Mr. Clarke
I share the feeling that the problem is extremely widespread and, as I hope that relevant parts of the Bill will deal with that widespread problem, I expect that there will probably be a large number of proceedings. Having this inflicted on the courts could add considerably to the delays.
What will happen if there are several such cases before a court? It may be that delays would be adverse to the interests of the more respectable squatters who want to argue their case and get it dealt with. A case involving, say, six codefendants may have reached a late stage when the last defendant claims that he was not a trespasser.
If the hon. Member for Handsworth were here, he could clarify what was in his mind, but it seems that if just one of the defendants claimed not to be a trespasser, the whole proceedings could be adjourned to a county court for determination of the preliminary question. The other five defendants would have to wait until their fellow accused bad finished messing about there before the case could be resumed.
That brings us to the third stage: the case would go back to the magistrates' court who would have been driven by the new clause to send it away earlier.

§ Mr. Adley
If the numbers involved are as large as my hon. Friend expects, he may have raised, perhaps unwittingly, a substantial new issue. Will not these numbers require the employment of large numbers of extra civil servants at the Department of Health and Social Security and the Department of Employment or their transfer from other duties to deal with these refugees from Labour-held constituencies? Does this not have some implications for public expenditure and is it in order for an hon. Member to move a new clause that involves such a substantial increase in public expenditure?

§ Mr. Clarke
I am sure that this has implications for public expenditure. I was concentrating on the inevitable consequences for the administration costs in the courts. I have illustrated how protracted proceedings in magistrates' courts can be rendered abortive by one defendant raising one point that requires an adjournment for several months so that the 633 county court can determine the question. One of the problems arising from the tremendous backlog of work in the courts is the additional burden on administration costs in trying to sort out court lists and to grease the wheels to get justice done.

§ Mr. Clegg
When a case in which legal aid has been granted at the magistrates' court is referred to the county court, would a fresh application for legal aid have to be made, especially bearing in mind that one court has criminal and the other civil jurisdiction? What sort of delays could this problem cause?

§ Mr. Clarke
The legal aid authorities will have to consider whether to grant legal aid for such proceedings. They are novel, and one would expect that a legal aid certificate granted to the defendant in the magistrates' court would not cover related proceedings in the county court. I have not dared to dwell on the cost. What I have described are the protracted proceedings that will be conducted by the prosecution and the defence in the magistrates' court and the county court. The proceedings will be conducted, probably at public expense, in the context of the ludicrous procedural tangles that the hon. Member for Handsworth is trying to create to frustrate the purpose of Clause 2.

§ Mr. Gow
My hon. Friend has raised a new matter, upon which we might require the presence of a Treasury Minister. This is the question of public expenditure. My hon. Friend will recollect that in the famous letter of 15th December last to the Managing Director of the International Monetary Fund, Dr. Witteveen, the Chancellor of the Exchequer committed himself to a deficit in the current financial year of no more than£8,700 million. Can my hon. Friend say whether the borrowing requirement will be increased above that figure by what is proposed here, and, if so, what the effect will be on the talks going on at Downing Street? Might we have Dr. Witteveen coming here as a refugee and possibly squatting in my constituency?

§ Mr. Deputy Speaker
Order. I must point out that the hon. Member's questions go rather wide of the clause.

§ Mr. Gow
With respect, Mr. Deputy Speaker, this is a very serious matter, indeed. The Chancellor of the Exchequer 634 wrote in the most solemn terms to Dr. Witteveen, the Managing Director of the IMF, committing the Government, during the current financial year, to borrow no more than£8,700 million. My hon. Friend said that there could be an increase in the total costs if the clause proposed by the hon. Member for Handsworth were accepted. This is a very serious matter, and it goes to the heart of the Government's economic strategy. With respect, it is legitimate for my hon. Friend to advance arguments to keep within the guidelines laid down by the Chancellor of the Exchequer. We are trying to help the Government in the matter of public expenditure.

§ Mr. Clarke
I shall try to keep within the confines of your ruling, Mr. Deputy Speaker. I was not proposing to venture at length into the precise figure—

§ Mr. Kilroy-Silk
Will the hon. Gentleman give way to allow me to put the record straight?

§ Mr. Clarke
If the hon. Gentleman will allow me to continue for a moment, I shall give way. I was not proposing to advance a precise figure for what this would cost. I merely argue that the cost could be considerable. The extra administration would be an additional burden on the already overloaded administrative system of the courts.
The hon. Member for Handsworth is quite casual about these issues. He is mindless of the cost that he will create. He is mindless about listening to the debate and about the burdens that will be placed on the courts. The whole matter is proposed casually by him and then he leaves the Chamber, no doubt hoping that others will sort out the tangle that he has left behind.

§ Mr. Kilroy-Silk
I only wanted to say to the hon. Member for Eastbourne (Mr. Gow) that this is not my clause. I want nothing to do with it. It was put forward by my hon. Friend the Member for Birmingham, Handsworth (Mr. Lee).

§ Mr. Clarke
One almost wishes that it was the hon. Member for Ormskirk (Mr. Kilroy-Silk) who was proposing the clause, because he has been present throughout a good portion of the debate. He has opinions on the matters to which this procedure is directed, and he might give us the benefit of his views in due course.

§ Mr. Fairbairn
I direct my hon. Friend's attention to subsection (1), which is not concerned with the county court. As I understand the procedure in England, a person cannot be committed to the Crown court unless the full procedures are carried out by the magistrates' court. At any stage the defendant may ensure that the procedure of the magistrates' court is frustrated merely by saying "I am not a trespasser". Am I right in understanding that a person may avoid trial by saying that at any point so that he cannot properly be committed to the Crown court? The subsection provides that it is for the Crown court to try the defendant, yet it cannot do so if the magistrates' court procedure may be frustrated by the claim that he is not a trespasser.

§ Mr. Clarke
So far in my contribution to the debate I have tried to deal with subsection (2)—this business of summary trial in the magistrates, referral to the county court, adjournment and then, presumably, referral back to the magistrates' court for final determination, but I find subsection (1) as baffling as does my hon. and learned Friend. Again, it seems that if in the proceedings under Part II of the measure the defendant claimed that he was not a trespasser, the trial would have to be committed.
That seems to contemplate the possibility of the trial being committed to the Crown court without the ordinary committal proceedings being undertaken. With respect to my hon. and learned Friend, I do not think that the subsection means that the defendant could avoid a trial ever taking place. I take it to mean—although I accept that it is ambiguous and arguable and that the purpose of the clause is seemingly to give people the opportunity of arguing procedural points at great length, which no doubt they would—that the defendant could not be committed to the Crown court without the usual provisions being made for depositions, for example, and the other preparatory work that normally takes place at the magistrates' court before committal.
If the defendant says before the court at some stage that he is not a trespasser, he is committed to the Crown court in the unusual position, as is everybody else 636 taking part in the proceedings, of having no depositions from the witnesses. That would be an undesirable procedure. As I have said, the procedure under the summary proceedings under subsection (2) would be undesirable, lengthy, and costly. It is important to realise just how lengthy and costly it could be.
Before I gave way to some interesting interventions I had reached the stage of dealing with the first procedure at the magistrates' court, the stage at which the matter is adjourned to the county court. The way in which the county court would prepare itself to deal with the special question referred to it and the way in which it would adjudicate upon the special question is of some interest, the county court being seized of only one special question as a result of the proceedings being adjourned from the magistrates' court. Presumably the issue would be returned to the magistrates' court after the proceedings had taken place at the county court.

§ Mr. Robert Cooke
Before my hon. Friend reaches the next stage in the proceedings, perhaps he will consider the position of the owner of the property that has been trespassed upon. Surely the owner will lose patience during these proceedings. That is more than likely. It is likely that the owner will take to strong-arm tactics to get rid of the trespassers. The clause will positively incite violence. No reasonable person, not even a dear old lady, would put up with this procedure. There would be bands of people throughout the country offering themselves to do the job that the courts could not do—to get the trespassers out of properties. I hope that my hon. Friend will address himself to that before he goes on to describe the circuitous court process.

§ Mr. Clarke
I agree entirely with my hon. Friend. In dealing with Part II of the House should have in mind the necessity to deal with the process that faces residential owners who have squatters in property to which they, the owners, are lawfully entitled. They know that the criminal law does not give them protection. The process that I have described would frustrate the performance of Part II and intensify frustration generally. Public order would be at risk. Personal misery would be suffered by would-be 637 occupiers of property who were kept out of their own homes.
The frustration of the months of waiting for the first magistrates' court procedure to take place, for the county court to adjudicate and then for the reference back to the magistrates' court would not be the end of the matter. Upon the county court having determined the answer to the special question referred to it, the case would have to be sent back to the magistrates' court and there would be the process of trying to find time, in a crowded magistrates' court list, for the adjourned proceedings to be resumed and brought to a useful conclusion.

§ Mr. Graham Page
I have been waiting patiently for my hon. Friend to get to the third stage. What happens if one of the original magistrates has died in the meantime? Does it have to start all over again?

§ Mr. Clarke
I am grateful to my right hon. Friend the Member for Crosby (Mr. Page) for that intervention. I am sure that the process would have to start all over again. In a not insignificant number of cases, given the preliminary steps that I have described in the procedures set out by the hon. Member for Handsworth, it is possible that a number of members of the magistracy would have died before the cases came back to the magistrates' court.
That raises the question of which magistrates should deal with the third stage when the case comes back from the county court, the special question having been answered. These are adjourned proceedings. It is possible that the case will go back into the ordinary list in the magistrates' court. It may be that, because of the time that it has taken, it takes its chance in the list and comes before a fresh bench of magistrates. But I do not think so. That is not how I interpret adjourned proceedings. My right hon. Friend the Member for Crosby shakes his head. I am sure that he agrees that, as these are adjourned proceedings, they will come back before the original magistrates' court, which is still seized of the matter and has to complete the process that it began many months before.
The hon. Member for Handsworth has provided many remarkable opportunities 638 for delay. This procedure will give rise to many problems.
In addition to the problems that I have described of getting the case into the magistrates' court list at all, it is especially difficult with an adjourned hearing because the people engaged in the first part of the case have to be reassembled. It must be precisely the same bench of magistrates. Of course, magistrates do not sit on the same bench each day. They sit in different combinations of magistrates. The original magistrates will have to be disengaged from any other sittings and brought back together again. Presumably, and preferably, the same clerk who sat with the original magistrates will be required to continue with the complex proceedings. A date must be found that is convenient for the advocates who took part in the first magistrates' court proceedings and the county court interim proceedings to attend the magistrates' court to resume the hearing.
These are not inconsiderable problems. I am sure that my right hon. and hon. and learned Friends know that any case in a magistrates' court that is adjourned part heard is adjourned not, as in the Crown court or the High Court, automatically to the following day, but to a future date that may give rise to difficulties and complexities of reassembling the legal and lay personnel involved in the first proceedings. Again, the hon. Member for Handsworth has created a timing problem that will enable criminal squatters to protract the proceedings still further.
The difficulties involved in coming to any adjudication in such circumstances are staggering. These are adjourned proceedings. I have already described how they might be adjourned because a defendant, after the whole of the prosecution case and after he has given evidence in reply to the last question in cross-examination claimed to be a trespasser.
How can there be a proper adjudication when the magistrates' court has to try to come to a conclusion on the case in the light of whatever further evidence may be called by the defence? Again, we are contemplating a defendant who is trying to delay, so he will no doubt use the intervening months to assemble more evidence to call before the magistrates.
639 The magistrates, having heard that further evidence, have to retire and seek to come to a conclusion, doing their best to recollect the evidence that they heard months before when the case first came before them. In any proceedings, the delay between the events and the giving of evidence on them is one of the principal problems for witnesses. If to that delay is added a huge adjournment before more evidence and adjudication are given, that lapse of time serves only to heighten problems for the magistrates and the witnesses. I could not think of a more unsatisfactory way of deciding guilt or innocence than if defendants were to take the opportunities that the clause would give them for creating interminable delay.

§ Mr. Edward Gardner
Under the new clause there would have to be a change from criminal to civil jurisdiction and a similar change in procedure. In addition, there would be a change in the burden of proof. Will my hon. Friend consider what will happen where a defendant instructs a solicitor who specialises in the criminal courts and then has to instruct someone who is experienced before the county court? Would that mean a change of solicitor and counsel, with the inevitable delay that that would entail?

§ Mr. Clarke
It almost certainly would. Only a limited number of advocates combine magistrates' court and county court advocacy. Many magistrates' court solicitors never see inside the county court from one year to the next, and the converse is true. I see my right hon. Friend the Member for Crosby shaking his head, but I suggest to him that few solicitors used to handling undefended divorces in the county court find themselves before a magistrates' court representing a client accused of a criminal offence, let alone an offence under Part II.
There is also the question of the burden of proof. The clause fails to make it clear whether, if the question is referred to the county court, the court will have to determine the question by applying the civil or criminal burden of proof. If the former, is the magistrates' court bound by that, or does it have to determine whether the county court finding should be regarded merely as a prelimin- 640 ary finding? On the second occasion, should not the magistrates' court, before determining the verdict, still hear whatever evidence there was of whether the defendant was a trespasser. Procedural delays could be intolerable. The first magistrates' court hearing, the intermediate county court hearing and the final magistrates' court hearing would be so lengthy that any proceedings under Part II could last for more than 12 months.
2.15 a.m.
The new clause is clearly an attempt to frustrate the purposes of Part II by the methods which are best loved by many of the more professional squatters—those of the barrack room lawyer trying to exploit the procedures of the ordinary courts, trying to exploit delay and trying to stop the protection of the courts being given to the victims of their squatting.
The range of offences to which Part II and, therefore, the new clause applies are of a kind where it would be unthinkable for any such delay to take place, and it is clear when one considers who are the likely victims that they are people who would be deterred from taking advantage of the remedy of Part II if these protections were given to any defendant by the hon. Member for Handsworth.
Clause 7 of the Bill is the offence of adverse occupation of residental premises. Any person on premises as a trespasser is guilty of an offence if he fails to leave those premises on being required to do so by or on behalf of the displaced residential occupier of the premises. That is meant to give a quick and easy prospect of relief to a displaced residential occupier who finds that some squatter has occupied his premises. If he requires a trespasser to leave and he does not, that trespasser may be guilty of a criminal offence. Of what purpose is that if a displaced residential occupier who wants to take advantage of it is warned that he need not think, just by requiring the person inside to leave, that necessarily criminal proceedings will take place? A displaced residential occupier would need to take legal advice about whether there was likely to be any success in a court of law in the foreseeable future in establishing that the person he was about to require to leave was actually a trespasser for the purpose of this provision.

§ Mr. Mayhew
Does not my hon. Friend think that there is another equally unsatisfactory feature about the new clause in that it slightingly implies that magistrates are not capable of determining whether the person concerned is a trespasser? The purpose of the clause seems to be to take that away from them. It goes to the Crown court or to the county court. Surely a magistrates' court is well capable of investigating a matter of that nature. Is it not dangerous to add to any movement that there may be to derogate from the capacity of magistrates in this respect?

§ Mr. Clarke
I quite agree. The whole proposition is based on a most disparaging view of the capacity of magistrates to determine who is a trespasser.
Of course, magistrates can get these matters wrong, but so can county courts, and a matter upon which I have not dwelt is the right of appeal if they do. Presumably this will be an unusual offence in that one's right of appeal will lie with different courts during different stages of the proceedings. An appeal will go to the divisional court from the magistrates' court on a question of law, to the Court of Appeal on a question of fact, and to the Court of Appeal from the county court on the adjudication on trespass. I have confined myself to all the procedural problems of going through the courts of first instance at these various stages, but clearly the right of appeal of any accused person lies under Part II of the Criminal Law Bill as it does under any section of the criminal law, and the delay that could be incurred by appealing from any decision of the county court would be very considerable.
Clause 7 would place a displaced residential occupier in the position of having to take legal advice about whether someone was a trespasser before he went any further. Clause 8 involves trespass with a weapon of offence. The purpose of that could be frustrated, because it would be necessary to determine whether the person who entered premises, having with him without lawful or reasonable excuse any weapon of offence, was a trespasser. If he chose to challenge whether he was a trespasser, the whole purpose of the protection of Clause 8 would be defeated.
I have dwelt on the delays in procedure which this new clause would cause. I do 642 not apologise for having done so. If I have taken a little time, I have inflicted upon the hon. Member for Handsworth the kind of delay that he is proposing to inflict upon the victims of squatting. He is ensuring that they do not get the legal remedies that we believe are overdue.
I have dealt with the problems posed for the courts, administration and lawyers. But they are not uppermost in my mind. I am worried about the problems for those unfortunate people who return from holiday to find that someone unauthorised has occupied their property. I am concerned for those who might vacate their premises in order to carry out repairs and who find that squatters have moved in. There are many other distressing cases.
The lack of a criminal remedy against squatting causes grave social problems in London. The problems are not so great in my constituency, but the possibility of their spreading has given rise to fear. I have received many letters from people expressing fear about what could happen if they left their homes. Clearly, new criminal remedies are necessary.
The new clause is a serious, underhand, roundabout way of trying to frustrate the purposes of Part II by giving a field day to the worst type of lawyers at the expense of those who are deprived of their homes.

§ Mr. Gow
The Government recognise that the law relating to trespass is in urgent need of reform and yet the new clause seeks to frustrate the Government's purposes. It is nothing new to observe that hon. Members below the Gangway are anxious to frustrate the objectives of their Government. But in seeking to frustrate the purposes of the Government, it is remarkable that the hon. Member for Birmingham, Hands-worth (Mr. Lee) who is not in his place, is seeking to extend and prolong the process of the law. The hon. Member for Handsworth is a barrister. Nobody who has heard him address the House could accuse him of being particularly sympathetic towards the legal profession.
One of the extraordinarily mischievous consequences of New Clause 18 would be to put more money into the hands of lawyers. If ever there was a cause which should not be dear to hon. Members below the Gangway it is to put more 643 money into the pockets of the lawyers. But that is what the new clause would do.
My hon. and learned Friends know that the fees that a re marked upon their briefs in the Crown court tend to be larger than the fees that are marked upon their briefs when they appear in the magistrates' courts or county courts. An astonishing side effect of the new clause would be a prolongation of the legal processes and an increase in the fees marked upon the briefs of my hon. and learned Friends.
That is not the only mischief of New Clause 18. One of the principles of English justice is that it should be as speedy as possible—that we should bring to trial and to either conviction or acquittal as soon as we can those against whom a charge is preferred. Yet violence is to be done to that principle. I cannot believe that the hon.. Member for Hands-worth, with his long experience at the Bar, could intend to incorporate into the Bill a new legal procedure that makes the administration of justice more prolonged, more protracted and more costly.
A third piece of violence to the Government's declared policy is the cost to public funds. The clause would not only pour additional money into the pockets of lawyers, whom Labour hon. Members below the Gangway profess to despise, but would add to public expenditure. I am mindful of your rebuke to me a few minutes ago, Mr. Deputy Speaker, but I think that it is legitimate to inquire what would be the additional cost to public funds if we were to extend the defendant's rights to go out of the magistrates' court, out of the county court and into the Crown Court.
We are entitled to consider how many people will take advantage of the new procedures in the clause each year. Some of my hon. and learned Friends who practise in the magistrates' court, the county court and the Crown court will be able to give the House an estimate of the increased cost of moving from the magistrates' court to the county court and from the county court to the Crown court. We need such an estimate before we can decide on the merits or otherwise of the new clause.
I remind the House of the clear and unambiguous terms in which the Chancellor of the Exchequer laid down the public sector borrowing requirement 644 target for the current year on 15th December, when he said: The latest forecast prepared before the measures showed a PSBR of£10½billion in 1977–78 and£11½billion in 1978–79. These forecasts embodied unrealistically favourable assumptions on several important points. Even so, the PSBR figures were unacceptably high —I underline those words— and the immediate objective of the measures which I am announcing this afternoon is to reduce the public sector borrowing requirement to about£8.7 billion in 1977–78."—[Official Report, 15th December 1976; Vol. 922; c. 1525.] We must bear in mind what happened last month, when Labour Members who sit below the Gangway increased this year's public sector borrowing requirement by an amendment to the Finance Bill in Committee upstairs which meant a reduction in income tax. That increase amounted to£450 million. Since that has happened we must look even more closely at the financial effects of the clause.
At this very moment, for all we know, there is a gathering at No. 10, Downing Street. There is a gathering taking place round that famous table with the leaders of the TUC who will be anxious, in the pay negotiations, not to increase the public sector borrowing requirement. At least, we assume that. How would it be if the House of Commons, at the moment when the negotiations are talking place, were to include in this Bill a provision which involves an increase in public expenditure? We have therefore to take that factor very much into account.
2.30 a.m.
Those are some of the great principles involved in New Clause 18. Now we can turn from the principle to some of the details. My hon. Friend the Member for Rushcliffe drew the attention of the House to some astonishing features of this new clause. I take them in reverse order and will start with subsection (6). Here we find astonishing proposals from a lawyer from below the Gangway. He wishes to give extra power and privilege to a Lord Commissioner of the Treasury, the very man—or even to the hon. Lady the Member for Bolton, West (Mrs. Taylor)—now on the Government Front Bench. I am not sure whether the hon. Lady is a Lord Commissioner or a Lady Commissioner. The proposal that we should give special power to a 645 Lord Commissioner of the Treasury is quite beyond my comprehension.
It would be right at this stage to allow some of my hon. Friends to deal with other aspects of New Clause 18. There are five other subsections which have to be considered in greater detail when the matter is next considered.