HL Deb 26 April 1923 vol 53 cc936-51

Order of the Day for the Second Reading read.


My Lords, this is the second of the three Bills dealing with legal procedure with which I threatened your Lordships at the beginning of the Session. The first Bill dealt with procedure in criminal cases and the third, which I hope shortly to introduce, will deal with county courts. The present Bill deals with procedure in civil courts. The greater number of the clauses in the Bill are of a somewhat technical nature and probably will only interest those of your Lordships who are acquainted with the procedure in our Courts. Those clauses aim at remedying a number of defects more or less important, a number of difficulties more or less great, which have been discovered in the course of the administration of justice in our Courts. They will tend, I think, to simplicity, to the saving of time, and to the saving of money.

I shall be glad at any time to discuss these clauses in Committee, but I do not think I should help your Lordships if I went through them one after the other to-clay. There are only three matters to which I desire specially to refer. One is the clause dealing with rules. There are seventeen or eighteen Statutes under which rules relating to procedure can be made. Those Acts have got into a tangle. They are long and difficult to follow, and we propose in this Bill to pass one clause in the place of all of them giving power to the new Committee to make these rules.

The second point which I want to mention is that which deals with trial by jury. I think most of us who have had experience attach great value to our ancient system of trial by jury. In the course of the late great war, in order to save the time of jurors who were otherwise employed, an Act called the Juries Act was passed which greatly cut down the rights of litigants to have their causes tried by jury. That was all right in war time, but at the end of the war it was desired to get so far as possible back to the old system, and there was a section in the Administration of Justice Act passed in the year 1920 which to some extent restored the right to trial by jury. But that section has not proved satisfactory. It did not go far enough, and, what is more important, it was not clear or intelligible even to lawyers. The result is that doubts have arisen as to the cases in which a party to a cause of action is or is not entitled to have his case tried by jury. We propose in this Bill to repeal that section and to put in its place Clause 2 of the present Bill, which I hope will prove easy to understand.

We propose that in all cases which are to be heard in the Chancery Division there shall be no right to trial by jury. There is no such thing as a jury in the Chancery Court. On the other hand, there are cases of a certain nature in which we propose to give an absolute right to a jury. Those are cases in respect of libel, slander, malicious prosecution, false imprisonment, seduction, or breach of promise of marriage. Fraud is not included because there may be cases of fraud which can quite well be tried in the Chancery Division. It is also provided that in other cases the parties shall have the right to make application to be tried by a jury. It gives them a primâ facie right to a jury; unless in the opinion of the Judge it is more fit to be tried without a jury.

The only other clause I want to mention is the most important. It is Clause 1, dealing with assizes. For many years there has been a good deal of discussion as to the number of assizes held at certain towns in the country and as to the number of the cases which are tried there. At present the rule is that there shall be four assizes in certain counties, in some three, and in others two, where there is not enough business to occupy the Judges or to justify their presence there more often. The matter may be illustrated if I give your Lordships one or two figures dealing with certain assize towns—the number of cases, both civil and criminal, heard at certain assizes during the last eleven years, from 1911 to 1921 inclusive. At Flint the average number of cases is 1.9 per year, or less than 1 per assize. At Dolgelly the number cases is 1.5; at Presteign, in Radnorshire, one case in the year, and two assizes are held there each year. There is one place where the number of cases is 4 per year; that is, less than half a case per year.

No one has more respect and affection for our old circuit system than I have, and although it has been suggested to me, as it was to a good many of my predecessors, that the time has come to make a list of places where no assize need be held, I have been, and am, most reluctant to take that course. I know how much these ancient towns, fallen perhaps in numbers but which have not lost their local patriotism, are attached to the privilege of having an assize Judge in their town. They have been accustomed for centuries past to see the Red Judge with all his appanage pass through their towns. It lends importance to the place, and it is of advantage to the administration of justice that the whole apparatus of justice should be brought to their doors.

The question is what can be done. The matter was referred to a strong Committee over which Mr. Justice Rigby Swift presided. That Committee presented a Majority and a Minority Report. The Majority Report recommended two things first, that there should be power, by an Order in Council to direct that at certain towns assizes should no longer be held; and, secondly, as an alternative or in addition, that there should be power for the Lord Chief Justice as the head of the King's Bench Division to look into the list before the commencement of any session and, if he found there were not enough cases to justify sending a Judge, that he should be entitled to say that on that occasion only the assize should not he held in that town, and that in case there was a prisoner to be tried, or a case to be heard, it should be heard in the adjoining assize town.

The first remedy was a drastic one. It involved the abolition of certain assizes. The second is far less drastic, and it means that if in a particular instance there are no cases to be tried, or not more than one or two, that for that occasion only the assize should not be held and the cases tried elsewhere. The Minority Report was signed by two members of the Committee, one of whom was the late Mr. Disturnal, whose premature death was a great loss to his friends and to the Bar. It recommended that the second course only should be taken; that there should be no power to abolish an assize town, but that there should be this power to direct that assizes should be held during any particular session at another town. After thinking the matter over very carefully I think it is right for the Government to take only the second and more restricted proposal, and, therefore, we have put in this Bill a clause enabling the Lord Chief Justice, if during the session he finds that at any place on the circuit there is no business, or no substantial amount of business, to be transacted at the assize, to direct that an assize shall not on the occasion of that circuit be held at that place. I think that is a reasonable solution of an old difficulty. I do not want to abolish assizes in any particular town, but these towns must be reasonable and I do not think they can object to a proposal of so limited a character as this. At all events, that is the proposal before your Lordships and I hope you will accept it.

Moved, That the Bill be now read 2a.—(The Lord Chancellor.)


My Lords, this is one of the Bills which we owe to the tireless zeal and industry of the noble and learned Viscount who sits upon the Woolsack. No Lord Chancellor has exhibited a greater sense of his duty with regard to details. If the details that have to be dealt with have been hitherto neglected because they have been uninteresting, there is the greater merit in the noble and learned Viscount in taking them up. He has now introduced a Bill that is a very useful Bill so far as it goes. In his speech he showed his very conservative tone in these matters. This is a period when things go gently, and I have little doubt that the noble and learned Viscount will find that this Bill will pass the more easily on account of its moderation. But I am not sure that he will find it possible to stop at what he has done here.

There are three points with which the Bill deals, and I will take them in the order in which they appear. The first is the point regarding assizes. There are a great many occasions, as he told us, on which the Red Judge goes to a town where there is no business to be transacted. No doubt the result is very gratifying for the inhabitants of that town, but it involves a waste of public money. I say "waste" for this reason. We have been told, and we have it impressed upon us by the Government, that there is no money' available for anything in the nature of luxury. On that plea we have been deprived of numerous small sums, which, in our view, are essential for necessaries of life. At every turn money has been cut off because it is said that we cannot really afford these things, desirable as they are. But when we come to these extra assizes, the cost cannot, indeed, be a great sum, but it is something, and if the Government are really in earnest about their principle they should express it in a form which renders it intelligible.

The Lord Chief Justice may take steps to say that an assize is not to be held at a particular town if there is no business, or no substantial business. What is meant by "no substantial business"? Suppose there is one prisoner to be tried. There are those who will say that this is very substantial business because a prisoner ought to be tried in his own district. This is said to be saving expense and to be merciful to the prisoner. I do not altogether agree with that. I think that with a little provision towards the costs to which the defence is put you could much more economically transfer the trial to a neighbouring and more convenient spot. In this case I think that the extreme conservatism of my noble and learned friend has led him to put this provision in words which practically make this power which is given to the Lord Chief Justice very nearly nugatory, but I accept it as a recognition at last accorded to the fact that the unlimited circuit system that we have inherited can be reformed.

It could not be reformed easily because so many Members of Parliament were backed by their constituents, their town clerks and other people to object to any change which would take away the spectacle to which they conceived them- selves entitled because they have always enjoyed it. My noble and learned friend has at last done something by introducing, not a thin edge but a microscopic edge. And yet a microscopic edge may in the end prove valuable. There is a principle in this clause, and for that I express myself grateful.

Then I come to the second point, the question of trial by jury. There, I believe, the noble and learned Viscount has done quite right. He proposes to restore the system to what it was before the war. On that and on the point to which I have just alluded I leave matters in the watchful custody of my noble and learned friend Lord Parmoor, who is even more conservative than the Lord Chancellor. Lord Parmoor, I do not doubt, will watch this clause closely, and he is not the man to allow himself to be deflected from a prized tradition merely by a few words put into a Bill.

I now come to what interests me more than either of these two things—I refer to the clauses from Clause 15 onwards; that is to say, the last part of: the Bill. The Lord Chancellor there proposes certain administrative reforms in regard to the machinery of the Courts. The Judges are one thing, but the execution of the Judges' decrees is quite another thing. It requires a vast amount of administrative machinery, which exists to-day, but the difficulty is that there are no adequate opportunities for getting at its defects. The Lord Chancellor cannot supervise it with any closeness. No man is more industrious than the noble and learned Viscount on the Woolsack, but it is beyond the power of a human being to supervise efficiently the enormous mass of administrative work with which he has to deal in connection with the immense staffs of the Courts, of the county courts, of the bankruptcy system and of the various things which have to be taken into account before you can ever complete the administration of justice.

This Bill proposes to make certain changes. So far as I can judge they are improvements, but I cannot tell, and I venture to say that the Lord Chancellor himself cannot adequately tell. I occupied for three years the office which my noble and learned friend now fills, and I satisfied myself that, it was wholly impossible for the Lord Chancellor to get through more than one third of the work which is put upon him. He can get through it, but as the late Lord Herschell said, it was never really possible to do more than one third of it properly, because there is not time enough in the clay to superintend the vast variety of things for which the Lord Chancellor is responsible.

When one comes to this administrative side of justice, the difficulty is, I think, greater than in any other regard. That is why some of as have long felt that a reform must come which will distribute the work of a Minister of Justice between two Ministers of Justice, the Lord Chancellor, who will always be the constitutional adviser of the Government and responsible for the higher judicial appointments, and another Minister, it may be the Home Secretary, who will take charge of the machine and will see that thorough investigations are made before changes are introduced. Such investigations can be made only if you have a staff adequate to make them. My noble and learned friend has a most able and competent Principal Secretary to the Lord Chancellor, but he again has no staff adequate for his work. I know something of administration and what it means. I have had a great deal to do with the Civil Service, and have a great deal to do with it to-day in a semiofficial capacity, and I realise that it is becoming clearer and clearer that in the distribution of business between the various Departments you get into confusion unless you have your principles worked out and know the details of the lines on which you are going to operate.

The later part of this Bill raises questions of that kind, not in an acute form, but yet in a form which to the practised eye renders it clear that there are questions which ought to be very carefully sifted and administered before you can say that they are disposed of. I am saying that, not by way of raising any objections to this Bill. So far as I can judge, these later clauses of the Bill introduce very useful reforms, but it is living from hand to mouth to reform in this fashion, and I feel that at some later stage, perhaps not in my time, much more complete change will have to be made before the reforms at which these clauses aim can be carried out. For the rest, I think the Bill is a valuable Bill and I hope your Lordships will pass it.


My Lords, I make no apology, although I am not a lawyer, for intervening in this debate, for the reason that this is not a question which ought to be confined to lawyers and their views as to the best way of administering justice. We have heard a great deal of the question to-day, and on previous occasions, from the point of view of very distinguished lawyers, but there is also the point of view of the citizen, and I ask leave to say a few words, because I have had the privilege of corresponding with the Lord Chancellor on the question, and I have been charged by those whom I represent, in the County of Wiltshire, to urge that the reforms with respect to the holding of assizes should not be of too drastic a character.

Viscount Haldane says that the visit of a Red Judge to a town where only one case has to be heard may be interesting to the people who witness the arrival and departure of the Judge, and also of importance to certain people who have vested interests. I can assure your Lordships that the petitions which have been addressed to me as Lord Lieutenant of the County of Wiltshire, with regard to this question, have not come from interested parties at all. The Lord Chancellor, in introducing the Bill, told your Lordships that undoubted advantage is gained from the visit of a Red Judge to a town, not only because it is a stately ceremony, reminiscent of the past, but also because it conveys to the minds of the people in that town, and the neighbourhood, something of the reality and majesty of justice, of which they otherwise would have no conception.

I remember the late Lord Wolseley telling me that he believed in the existence of Reserve Forces, not because he attached, personally, any great value to them as fighting forces—that was long before the great deeds of bravery and gallant action both in South Africa and the late war—but because he believed that the existence of Reserve Forces kept alive the martial spirit of the people of this country. So it is with the visit of a Judge to a county like mine. It impresses upon the people the majesty of the law, and teaches them something of those who are called upon to administer the law in its highest form. I thought, as I listened to the Lord Chancellor, that he indicated that the powers of the Lord Chief Justice would probably be exercised not only in instances where there were no cases for trial, but also in those where there might be only one, and that seemed to me to answer the question put by the noble Viscount who preceded me. But surely the people who have to be tried have something to be said for them, when they claim that they have a right to be tried in their own part of the country, and not to be deported to a great distance.

As regards the question of expense, I do not know enough about it in detail to say on which side the balance would fall, but I submit that in cases where there are a great many witnesses, to be drawn from different parts of the county, to have to deport not only the prisoner, but all the witnesses, to the assize town in another county, which in the case of Wiltshire would mean to deport them to a considerable distance, would involve considerable expense. There may be more expense involved in the attendance of the Judge, but his salary has to be paid in any event, and so also have the salaries of his staff. Moreover, some of the expense is borne locally, as your Lordships know, by the High Sheriff and local people. Therefore, what actual extra expense is involved in the visit of a Red Judge for the purpose of assize I cannot see, but there is no doubt that, if you have to move not only the prisoner but a great many witnesses (in serious cases sometimes as many as twenty-five or thirty), the expense would be very considerable, and I cannot help thinking that in some cases it would be more than the actual extra expense which falls upon the public taxpayer in connection with the visit of a Judge.

I am as strongly in favour of economy as the noble Viscount, Lord Haldane. I realise, as much as he does, that the present pressure of taxation is keeping all the springs of industry down, and that until that heavy burden is lightened there can be no real return of good trade or prosperity and employment. Therefore, I advocate economy with all my heart, but there is something, even in these sad days, which ought to come before economy, and that is the recognition of the rights of the people, and their convenience, so far as possible. I submit that to move a large body of people, frequently some of them old and none too well, right away from their own homes to a strange town, and to call upon them to lodge there for two, or three, or possibly four days, is to expose them to grave inconvenience, to which they ought not to be exposed. I desire to thank the Lord Chancellor for the earnest and careful consideration that he has given to the representations which have reached him, I have no doubt, from many others besides myself, and so far as I am concerned, and those whom I have the privilege to represent, we are entirely satisfied by the decision at which he has arrived. We believe that it is not only wise, on a difficult and complex question, but that it recognises the full rights and interests of the people of the country.


My Lords, I entirely support what has been said by the noble Viscount., and I should like to confirm him in the view he has expressed, that the present system does not lead to waste either of money or time. I dare say he has not had the opportunity, which no doubt the Lord Chancellor has had, of reading the Minority Report, on which the Bill is founded, and which gives two very illustrative figures. As regards the, question of time, in 1912, on the whole of the circuits other than the Western and Welsh circuits (I suppose no statistics were available), the extra hours worked by the Judges on the circuit system, as compared with the hours they would have worked if they had remained in London, number 409. Therefore, so far from there having been any waste of time, 409 extra hours were actually worked, which would not have been utilised by the Judges if they had remained in London. I think that is a figure which everyone should bear in mind.

There can be no doubt that what the noble Viscount has said on another point is also true. If you have to move witnesses a long distance the expense is very great indeed. I go further and I say that in the cases of poor persons they might really suffer because they could not get to a distant town the witnesses who ought to be there in order that their case may be fully considered. In addition to that, in the Minority Report it is pointed out—and this is quite in accordance with my own experience, which has been derived from quarter sessions—is important when you come to sentence a prisoner that you should be able to get local information, and you cannot get local information if you centralise the assize system too much.

On the question of expense let me give a figure which comes from the Minority Report. It is a very simple case, and therefore the amount involved is not large, but it is sufficient to show the tendency. In the statistics which were given before the Royal Commission in 1913 the average cost of trying a Dorset prisoner in Dorchester—that is, according to the local principle—was £16 12s.; whereas to try him at Winchester cost £31 2s. That is as simple a case as you could possibly have in which the expense is doubled because you have taken a man away from his natural centre and from the most convenient centre for trial. I hope those figures will fortify the noble Viscount, both on the question of the time of Judges and on that of expense.

On the larger question also I am entirely in agreement with the noble Viscount, but I think that the provisions in the Bill deserve every support. The Majority Report which, as the noble and learned Viscount on the Woolsack has explained, goes further than he is going, points out that from time immemorial each county has been visited twice in the year for assize purposes. The Majority Report, which has quite properly not been followed, says this: The circuit system is an integral part of the machinery for the administration of justice in this country. And so it is. You cannot displace the circuit system in this country without really displacing the whole basis on which our administration of justice is carried on outside the head centre in London.

And, although the Majority Report goes further in the direction than the noble Viscount desires, I admit that, if it had been introduced in that form, personally I should have given it every possible opposition. My own county is a small county, but we have considered the question several tames, and everyone, on each occasion, has been opposed to anything like leaving our county out of the circuit system. I understand that the noble Viscount finds that the same views are expressed in his county. It is not, as the noble Viscount, Lord Haldane, seems to think, a case of the borough Members in Parliament; I believe it is those who are associated with the local administration of justice, who feel the essential necessity, in the interests of the litigants, in civil cases and of the prisoner in criminal cases, of preserving the local administration of justice. And, after all, the question of judicial time can be readily adjusted; there is really no loss at all.

At the present time where, five days before holding an assize, there is no prisoner, or no case to be tried—I forget exactly which it is—under the Act of 1908 the assize need not be held. That is perfectly reasonable, but it has been found that it is not always convenient to wait so long before a decision is reached. And therefore the first part of Clause 1 does nothing more than allow the Lord Chief Justice, at any time when it appears that there is no business, to say that the assize shall not be held; whereas, at the present time it is limited to five days before the time fixed for the assize. That is merely a matter of administrative machinery.

On the other question, which is new—namely, the case of an assize for which there is no substantial business—though I do not like that provision, I submit to it. It is obviously reasonable to say that if there is really nothing to be done the Judges ought to be relieved of the necessity of going to a place on circuit. But I understand that the meaning here is, in accordance with the Minority Report, that in certain circumstances, even one case might be interpreted as substantial business, and the assize would be held. I entirely agree with what the Lord Chancellor has said, from all his experience in these matters, that it is of the very greatest importance for the fair administration of justice in this country that there should be no interference whatever with the general principle of holding assizes twice a year in all our counties throughout the country. That general principle is only to be departed from in special cases. When we come to the Minority Report I should like to say that I had marked the Minority Report as the one which I hoped would be followed, and the Lord Chancellor has told us that it has been followed.


I did not say that the Minority Report has alone been followed. The same recommendation is in both Reports.


Of course, I agree that you find the same recommendations in the Majority Report, but they go further. The first recommendation of the Minority Report (which is, I think, in accordance with the recommendation of the Majority Report) is that the judicial business of the country should, subject to certain modifications, be arranged and distributed according to divisions of counties; that is, you are to maintain the county unit for assize purposes. That is, to my mind, an extremely important principle. The Minority Report goes on to make the suggestion, contained in this Bill, that the Lord Chief Justice and the Lord Chancellor, after certain consultation, should have the power, in a particular ease, of saying that an assize is not to be held.

I hope—and there I differ from the noble and learned Viscount, Lord Haldane—that this will be a settlement of this vexed question. There has been a series of Committees and a large number of recommendations, and therefore I trust that this will be taken as a settlement. I say that because the noble Viscount suggested that it was like opening the door, and that you might wish to open it wider on some future occasion. I hope that this Bill will not be accepted in that spirit. It is a difficult point, and we ought to he assured that, subject to this particular measure, our assize system will not be interfered with. That is my bedrock as regards the administration of justice in this country. So far as concerns the Regulations dealing with trial by jury, I am entirely in accord with that proposal; and, as for the other matters, personally I hope that the administration of justice will remain under the Lord Chancellor and that we shall not have a Minister of Justice. I cordially support the Bill as it stands.


My Lords, there is only one point that I should like to make, not from the point of view of the Judges, but from that of the High Sheriffs. I have had some experience in connection with county government, and I am glad to say that when I was Chancellor of the Duchy of Lancaster, Lord Alverstone very kindly, at my suggestion, invited the Judges to come together and consider the expenses which were then being incurred by the High Sheriffs in the county. I found in Lancashire that it was very difficult to secure the right men to take the position of High Sheriff. The expenses in connection with the position were so great that none but the nouveaux riches were capable of really undertaking the duties connected with the position, and I thought it was important that the leading and eminent men in the county should occupy the position of High Sheriff irrespective of a wealth qualification.

The expense in Lancashire was curtailed by several thousands of pounds, and I believe in other counties the Judges were prepared to make reductions in the expenditure which they had previously required. I still feel, however, that a certain amount of the pomp for which the High Sheriff has to pay out of his own pocket might be avoided, and I believe that this expenditure would be reduced by the proposal in this Bill that where it is unnecessary, owing to there being no cases—I put it in the plural—to be tried at an assize, the assize need not be held. In that way a considerable reduction might be effected in the expenditure incurred. The expenditure involved may be regarded as falling into two categories. There is, firstly, the expenditure on the necessities for the holding of the assize, which is incurred by the State. We all realise that it is important that the State should set an example to the community of economising wherever it is possible. But there is also the other expenditure to which I have alluded, and I believe that this Bill will help in securing the appointment of the right men as High Sheriffs. It is a step in the right direction and, therefore, I welcome it. In regard to the transport of one prisoner and of witnesses, I would point out that, at any rate to-day, the transport from one assize town to another is not a very complicated matter, and that the expenses incurred in that way would never be anything like the expenses connected with the holding of the assize in an assize town.


My Lords, I desire to deal very shortly with one point which has been mentioned in this debate—namely, the decision of the Government in regard to the holding of assizes in assize towns. Your Lordships may have noticed that when the Lord Chancellor gave three towns as illustrations of the smallness of the number of cases coming before Judges at assizes, those three towns happened to be in Wales, and, although I am entirely in favour of reducing so far as possible all unnecessary expenditure, it also happens that during the time I have been in Parliament I have had many opportunities of knowing how very tenaciously these small towns cling to the distinction and privilege connected with the holding of assizes within their boundaries. I desire to express my personal satisfaction at the provision in the Bill which expresses the decision of the Government on this particular point. And I feel sure that, on the one hand, it will be the means of saving, where it is possible and practicable, unnecessary expenditure and, on the other, that it will not inflict on these towns which think so highly of the privilege of the holding of assizes in their midst, what they regard as an injury.


My Lords, I shall only trouble your Lordships with a very few words in reply to the debate. I think the Government have no reason to be otherwise than very well satisfied with the reception given to the Bill. I feel particularly grateful to my noble and learned friend, Lord Haldane, for his sympathetic observations on the attempt that is here made to amend the law. I am also very glad that the conservative mind of my noble friend Lord Clwyd, who has just spoken, is not offended by the proposals of the Government. The proposals made specially affect the Welsh Circuits, and if the noble Lord is satisfied, I am sure that Wales, as a whole, will be satisfied.

The first observation I will make on points raised in the debate is this. I should not like it to be thought that the proposals in Clause 1 are taken from the Minority Report of the Committee as against the Majority Report. That is contrary to the case. The majority of the Committee recommended this very thing. True, they recommended something more, but they strongly recommended this very thing, and the proposal comes from them. The majority included the leaders of most of our circuits and others who are very well versed in the law, and I feel extremely grateful to them for the trouble they took in making their Report.

My next observation is this. Both my noble friend Lord Long of Wraxall and my noble and learned friend Lord Parmoor referred to the proposal that where there is no substantial business to be done the Lord Chief Justice should have power to direct that an assize need not be held. I think that means exactly what it says. If it were found in a particular instance that although there was only one case to be heard, a number of witnesses had to be called, I am sure that the Lord Chief Justice would take that particular fact into consideration in giving directions to those concerned in the matter. He is directed by the clause to have regard to all the circumstances of the case. That is one of the things which I am sure he would have to consider and would be certain to consider. But this is the kind of case which I have in my mind. It often happens that there is one case put down for an assize. Should there be none the law already provides that no assize need be held; but if there is only one case, sent there possibly by some zealous clerk to the magistrates who does not want the assizes to be entirely blank, the Judge has to go down to the assize town, the assize has to be held, and time has to be spent not only in holding the assize but in travelling to and from the assize town. The case may last a quarter of an hour, or twenty minutes, or half an hour and the whole assize may then be over. A great deal of money is wasted in that way. That is the kind of thing that I had in mind.

On Question, Bill read 2a, and committed to a Committee of the Whole House.