CONSTITUTION OF COURTS (Hansard, 19 May 1978)

§ Dr. Summerskill

I beg to move, That the clause be read a Second time.

The clause is intended to deal with a practical problem which arises in matrimonial cases causing difficulties for the courts and distress to the parties.

I introduced a new clause for the same purpose in Committee. Certain reservations were expressed about the effect of that clause and I withdrew it in order to see whether we could meet the points which had been raised. We have now revised the new clause to take account of those points, and I hope that the revised clause will be accepted by the House.

The new clause provides that, where a court has reached a decision on an application under Clause 1 and then adjourns to consider some further matter arising, if for some reason it is not possible for the same court to continue with the case, a differently constituted court may resume the hearing. At present, if the same court cannot continue—for instance, if one of 1042 the justices has died or is ill—the new court has to hear the entire proceedings afresh. This may cause considerable delay and distress.

The new clause contains three safeguards, two of which were not in the new clause which I moved in Committee. The first is that the parties must consent to the reconstituted court continuing with the case. That provision was suggested by the Magistrates' Association. I think that it introduces an extremely valuable safeguard for the parties.

The second new safeguard was suggested in Committee—namely, that at least one justice of the reconstituted court should have been a member of the court which originally heard the case. This safeguard is now included in the new clause.

Finally, the new clause contains a further safeguard which was in the original version of the new clause and which we have retained. This is a requirement that the court which resumes the hearing, before it makes any order in the case, must make such inquiries into the facts and circumstances as will allow the justices who were not members of the first court to be fully acquainted with the case.

These three safeguards will, I think, ensure that the power conferred by this clause will operate fairly and reasonably. We have consulted interested bodies about this proposal, as I undertook to do, and they have responded favourably to it. The Magistrates' Association proposed that we should insert the further safeguard of the consent of the parties, which we have done. As regards information as to what happened at the previous hearing, it will of course be open to the parties to remind the court of what facts which are relevant to the fresh issue emerged at the previous hearing, and the requirement that one of the justices should be present on both occasions is an extra protection.

§ Mr. Sims

The clause is certainly an improvement on the clause that we discussed in Committee. I am grateful to the Minister for taking it back and representing it in this form.

There is obviously a problem here. One has to strike a balance between the problem of reconstituting exactly the same 1043 bench, which, for the reasons indicated, may not be practicable, and at the same time ensuring that an adjourned hearing in no way prejudices the positions of the parties involved.

I am aware that some reservations have been expressed by some justices' clerks on the practicability of the operation of the new clause, but my view is that it is a reasonable way to proceed. This is just about the right balance. I am pleased to support the clause.