§ Order of the Day for the House to be put into Committee read.
§ Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)
§ On Question, Motion agreed to.
§ House in Committee accordingly:
§ [The EARL OF ONSLOW in the Chair.]
§ Clause 1:
§ Appointment of legally qualified Chairman and Deputy Chairman of Quarter Sessions.
§ 1.—(1) It shall be lawful for His Majesty from time to time on the recommendation of the Lord Chancellor, made at the instance of the Court of Quarter Sessions for any county, to appoint a legally qualified person as Chairman and a legally qualified person as Deputy Chairman of that Court of Quarter Sessions.
§ (2) Where a separate Court of Quarter Sessions is held for any division or part of a county, or a Court of Quarter Sessions for a whole county is held in two or more divisions or parts of the county, the Lord Chancellor may recommend under the foregoing subsection the appointment of a Chairman and a Deputy Chairman of the separate Court of Quarter Sessions for the division or part, or, as the case may be, of the Quarter Sessions held in the division or part, and His Majesty may accordingly appoint such a Chairman and Deputy Chairman.
§ (3) Any Chairman or Deputy Chairman appointed under this section shall hold his office during good behaviour and shall, by virtue of his office, be a justice of the peace 333 for the county for which he is appointed and Chairman or Deputy Chairman, as the case may be, of the Appeal Committee appointed under Section seven of the Summary Jurisdiction and Appeals Act 1933, but he shall not act as Chairman or Deputy Chairman either of the Court of Quarter Sessions or of the Appeal Committee or as a justice of the peace until he has taken the oaths required to be taken by a justice of the peace for the county.
§ (4) In this section the expression "legally qualified person" means a person who is or has been a Lord of Appeal in Ordinary, a Judge of the Supreme Court, a Railway and Canal Commissioner, or a Judge of a County Court or of a superior court in any part of His Majesty's Dominions, or who is a barrister of not less than seven years' standing having such legal experience as to qualify him in the opinion of the Lord Chancellor to act as Chairman or Deputy Chairman of Quarter Sessions.
§
THE LORD CHANCELLOR (LORD MAUGHAM) had given Notice of an Amendment to leave out subsection (1) and insert:
.—(1) The Court of Quarter Sessions for any county may at any time apply to the Lord Chancellor for the appointment as Chairman or Deputy Chairman of the Court of a person who is or has been a barrister or solicitor of not less than ten years' standing having such legal experience as to qualify him in the opinion of the Lord Chancellor to act as Chairman or Deputy-Chairman of Quarter Sessions, and where such an application has been made A shall be lawful for His Majesty, on the recommendation of the Lord Chancellor, to appoint such a Chairman or Deputy-Chairman accordingly:
Provided that, before making any recommendation for an appointment under this section, the Lord Chancellor shall consider any representations which may be made to him with respect thereto by the Court of Quarter Sessions and shall take into account the expediency of recommending where practicable a person residing in or otherwise connected with the county in or for which the Court of Quarter Sessions is held.
§ LORD CAUTLEYBefore the Lord Chancellor begins, may I point out that an Amendment setting forth an absolutely new subsection (1) to Clause 1 was on the Paper this morning, and the Lord Chancellor, I understand, is about to move it. That new subsection (1) destroys, as far as I can see, some Amendments I have down to the old subsection (1) without providing for them. I wish to ask if the noble and learned Lord can tell me how they can be preserved.
§ THE LORD CHANCELLORI think the noble Lord, Lord Cautley, is right and 334 that the effect of the proposed Amendment by me will be that, technically, his three Amendments go with the old subsection (1). But I think it would be right to point out that he can easily get over that difficulty by some trivial amendment of his Amendments. Accordingly, I should be quite ready, subject to the ruling of your Lordships, to deal with his Amendments as though they were so amended that they might still operate, supposing that the House thought fit to accept them.
§ LORD CAUTLEYThat would quite meet my purpose. Perhaps a simpler way would be that I should move an Amendment to the first Amendment by the Lord Chancellor in Clause 1.
§ LORD RANKEILLOUROn a point of Order: would it not be possible to adopt in this instance the practice in another place; that is to say, to move only a certain number of words to stand part of the Bill? I cannot help thinking that that would be the simpler course.
THE LORD CHAIRMANThe Amendment is at page 1, line 7, to leave out subsection (1) and insert the new words. I think the best method would be that which is suggested by the noble Lord, that I should put the question that the first two lines of the subsection, lines 7 and 8 of page 1, shall stand part of the clause, and that we should take the discussion on that.
§ LORD CAUTLEYMight I make this suggestion? If upon the Lord Chancellor's Amendment to insert the new subsection I were to move that the Lord Chancellor might make the appointment, I should get all I want.
THE LORD CHAIRMANI think if the first two lines of the subsection are put then Lord Cautley could move his Amendment as a manuscript Amendment, and we can take the discussion on the first two lines. Therefore the Motion is to leave out subsection (1) down to the words "Lord Chancellor" at the end of the second line.
§ THE LORD CHANCELLORThe object of my Amendment is to meet, as far as possible, in the opinion of the Government, the various suggestions which were made by noble and learned Lords on the last occasion. The Amendment, as your Lordships will observe, 335 gives power to the Court of Quarter Sessions to apply to the Lord Chancellor for the appointment of a Chairman or Deputy Chairman who, in the Amendment, is said to possess certain qualifications—for example, that he has been a barrister or solicitor for not less than ten years—and the Lord Chancellor may appoint such a Chairman or Deputy Chairman accordingly; but it is not the intention of the Government, still less, may I say, is it the intention of the present Lord Chancellor, to do any such thing without having first considered with the greatest care any representations which may be made to him by the Court of Quarter Sessions before the appointment, and without taking into account the expediency of appointing someone who resides in the county and not somebody who, in the old days, would have been described as a carpet-bagger, though that is not the article now, from some other county.
It is thought that as a result of that the suggestions made by noble and learned Lords will then be largely met, though the objection of Lord Cautley, which is to be raised by him in a few minutes, and which makes it essential that every Chairman or Deputy Chairman of Quarter Sessions should be appointed by the Lord Chancellor, will, of course, have to be separately dealt with. Apart from that, the idea is to leave the present Quarter Sessions as they stand, if they desire to be left in that position, and to provide for the appointment of a Chairman and Deputy Chairman by the Lord Chancellor, after very carefully weighing any suggestions that may be made to him by the Quarter Sessions themselves. After that is done there will come into operation the other sections or subsections of the Bill, which will enable, amongst other persons, the Chairmen and Deputy Chairmen, appointed by the Lord Chancellor under these provisions, to exercise the extended jurisdiction which it is hoped many Quarter Sessions of counties will desire to have. It looks a little complicated as it stands, but really it is of the simplest possible character, and it is no more than a desire to carry out those suggestions that I have already named.
§
Amendment moved—
Page 1, leave out lines 7 and 8.—(The Lord Chancellor.)
§ LORD CAUTLEYSo far as I am concerned, the Amendment of the Lord Chancellor puts in better language Clause I of the Bill, but the objection that I have is that it still preserves in the Bill the provision that the Quarter Sessions are to decide whether the Bill is to apply to them or not. The Peel Commission having reported that it was essential to lighten the congestion of the High Court of Justice, decided that it was expedient to confer on Quarter Sessions in the counties a very large jurisdiction, but added this provision, that before that could be done provision should be made for the Chairman of a Court of Quarter Sessions in the counties to be a legally qualified lawyer. The extent of this reform is apparent if you look at the Bill. It includes an immense number of crimes hitherto only triable by a Judge of the High Court at Assizes or the Central Criminal Court. It includes bigamy, all sorts of perjury, all sorts of forgery, all sorts of conspiracy, and in fact if this devolution takes place the Criminal Courts, as administered by the Judges of the High Court, will have very little to do.
Therefore one can quite understand the requirement advised by the Peel Commission that provision should be made for the Chairman of Quarter Sessions being a legally qualified person, as provided in this Bill. But, recognising as they did the possible difficulty of finding such persons, they also recommended that he should be paid, in other words, that he should be in very much the same position as a Recorder. I venture to put to your Lordships with all the force that I can that this great reform, necessary for the administration of our public criminal law, is one of public importance, and it should not be made optional to any Quarter Sessions to have it or not as they please. Under the clause as it stands this devolution cannot take place unless a request is made to the Lord Chancellor to appoint a legally qualified person as Chairman under this Bill. As was said with great force by the noble and learned Lord, Lord Atkin, on the Second Reading, I think it is an unheard-of thing in this country that any Court should decide whether its jurisdiction should be increased or not. I go further and say that if the Bill is passed in this form it will practically become a dead letter.
337 May I point out to the Lord Chancellor one technical difficulty that I see in the wording of the Bill? I do not know by what machinery a Court of Quarter Sessions is to apply to the Lord Chancellor. I put this with some confidence, but not with absolute knowledge, that a Quarter Sessions can only act by the justices in Quarter Sessions assembled. They elect their Chairman, they elect a Chairman of the Appeal Committee or the Rating Committee, and the Chairman so elected Lakes his position as Chairman of the Court of Quarter Sessions. The Court of Quarter Sessions is undoubtedly a court of record, but is powers are limited to its original jurisdiction or to the jurisdiction that has been given to it by Parliament, and who is to make the requisition I do not understand. A Court of Quarter Sessions is constituted if it has only two magistrates. Can any two magistrates make the requisition? I venture to say that it should be made by a resolution of the justices in Quarter Sessions assembled.
But whoever does it, whether it be done in the way I suggest, or in the way suggested by the Bill, can you imagine any Court voting or passing a resolution that the work it has to perform should be increased? It would have the effect of putting many of them out of action altogether. I can quite see them saying, "Why should we do this? What is the county going to gain by it? We are content as we are. We have been able to get voluntary Chairmen. We are doing very well. Why should we go to this trouble and increase the work to this large extent? We are quite satisfied that these cases that are going to be put upon us should be dealt with by the Assize judge, and we like to see the Assize Judge coming to our county." Very many county magistrates are county councillors, and I can easily imagine their saying: "Why should we pay for this? Why should we saddle the rates with the cost of the salary of a paid Chairman with this extended jurisdiction, when we are getting the work as well done as it can be done by a Judge of the High Court, and paid for by the taxpayer?"
In the Amendment which I shall propose later—I shall not make a further speech—it will be provided that the Lord Chancellor may appoint a Chairman of Quarter sessions and a paid Chairman 338 if he pleases. The Lord Chancellor's office is well filled. He has plenty of means of getting information as to the amount of business there is at any particular Court of Quarter Sessions and as to whether it is desirable in the interests of the public that this devolution should be made to that particular Quarter Sessions. He alone would apply to the decision of that question, quite apart from local considerations of any sort, solely the question of the efficiency of the administration of justice, and he would appoint the necessary person. I think that would be a very much better system, and it would achieve the object, which is very desirable, of extending this jurisdiction in the widest form to Quarter Sessions. I should like to have seen it made compulsory and I first of all drafted my Amendment in that way; but I was struck by an observation made on Second Reading, I think by the noble and learned Lord, Lord Roche, that there are still in this country some small Quarter Sessions where the business is very small in spite of the Road Traffic Act, which of course throws much work on most Quarter Sessions.
§ THE LORD CHANCELLORThe truth about such suggestions as have been made by my noble friend must rest, I think, on this fact that counties in England vary to an enormous extent, both as regards the nature of their inhabitants and the sort of work that comes before Quarter Sessions. We have been given to understand that there are a number of counties which would prefer to be left to manage their affairs in their own way, and in particular to be able to run their Court of Quarter Sessions in the way they have been accustomed to do so for many years past to the satisfaction of the inhabitants. Accordingly, it was felt that it would be very unwise to try to thrust upon counties of that sort, whether they wanted it or not, the necessity, when any Chairman or Deputy Chairman is being appointed, of having to go to the Lord Chancellor for that appointment. For that reason we have deliberately and, as far as I can understand, with the consent of the great majority of persons who understand this business, decided to leave the Court of Quarter Sessions as it is now, free, so to speak, from interference; but, of course, if they are left as they are now, the extended jurisdiction would not extend to such Courts as desired not to 339 have it so extended and desired not to get appointments made by the Lord Chancellor.
There is very strong ground for believing that, at any rate in the first instance, it would be much better to leave that part of the clause as it stands, and not to attempt to make it a compulsory provision for all Quarter Sessions, still less, if I may say a word on that topic, to insist that every Chairman or Deputy Chairman should be paid. There are people of the greatest legal eminence who assist as Chairmen at Quarter Sessions, who do not in the least desire that they should be paid a salary, and who would very much object having to go to the county council when it is discussing, in what they might consider a somewhat humiliating manner, the nature of their remuneration for acting as Chairmen or Deputy Chairmen which they have been willing to do for nothing. Then the noble Lord asks: "How, then, to apply?" I am inclined to think the Court of Quarter Sessions would pass a resolution that the Chairman should make an application. I do not think there is any particular formality about applying to the Lord Chancellor. Of course I do not speak with any great experience, but, as far as I can make out, the Lord Chancellor is the easiest person to apply to in all England. Accordingly I do not think that difficulty is a very serious one.
The difficulty of paying all Chairmen is very largely this: There may be county councils who object to having a paid Chairman. Without elaborate machinery it is impossible for a Bill to provide that they should be paid, for the reason that the county council, if it does not wish to have a paid Chairman in the county or division of the county, might very well suggest a derisory sum as proper remuneration. The Government are not in a position to propose now an elaborate series of sections or rules which would provide means of determining what a Chairman should be paid, and without that it is impossible to have paid Chairmen in every case. Accordingly, though I am grateful to the noble Lord for the suggestions he has made, I have to ask the Committee to pass the proposal as it stands on the paper.
§ LORD RANKEILLOURBefore w e pass from this matter, might I ask the Lord Chancellor why he has brought in a solicitor in the present manner? On the face of it, it seems absolutely anomalous, when you are looking for a legal expert, that you should find one who normally has not been able to practise vocally before the Court over which he has to preside.
§ THE LORD CHANCELLORRepresentations were made to those in charge of the Bill that there are solicitors of experience, power, and ability who do now act as Chairmen of Quarter Sessions. The Lord Chancellor, of course, is not bound to appoint such a person if there is another person who fulfils the qualifications mentioned in the subsection, but it seemed to those in charge of the matter that if there was a suitable solicitor of not less than ten years' standing who had such legal experience as to qualify him, in the opinion of the Lord Chancellor, to act as Chairman, it would be right that power should be given to the Lord Chancellor to appoint such a person.
§ LORD CAUTLEYI do not now propose to move the Amendments on the Paper in my name.
§ On Question, Amendment agreed to.
§
Amendment moved—
Page 1, leave out lines 9 to 12 and insert the said new subsection.—(The Lord Chancellor.)
§ LORD ATKINWith great respect to the noble and learned Lord, Lord Cautley, I am not, and would not have been, a great supporter of his proposal because I consider it went too far. The Amendments which have now been put on the Paper by the Lord Chancellor meet a great many of the objections urged against the Bill in its original form. For instance, it is not now necessary, before you get an increase in the jurisdiction of Quarter Sessions, for Quarter Sessions to have a Chairman appointed by the Lord Chancellor. As I understand the effect of the Amendments which the Lord Chancellor has proposed to Clause 2, it is that if Quarter Sessions themselves have appointed a Chairman who has the qualifications mentioned in that clause, then the jurisdiction will at once be given to that Quarter Sessions. That removes one of the difficulties that some of us felt in the first instance.
341 But I am bound, though I have no Amendment on the paper in respect of it, to record my objection in principle to a system which still leaves some Courts of Quarter Sessions not presided over by a qualified Chairman. In that respect it is not a question of its being a small county or a large county, a populous county or an unpopulous county; it is a question of the administration of justice in the trial of particular criminals who come before that Quarter Sessions, whether these cases are rare or not. The general feeling of the profession has been for years that the criminal jurisdiction of Quarter Sessions ought only to be exercised by a Court presided over by a qualified lawyer. That was the feeling expressed by Viscount Peel's Royal Commission—that only persons so qualified should be eligible for appointment to Quarter Sessions. It is obvious, in view of the difficult cases that can come before Quarter Sessions, that it makes no difference whether many of these cases or only a few of them come. One is desirous that justice should be done to the criminal whoever he is, and there are cases now within the ordinary jurisdiction of Quarter Sessions that are just as testing cases for a criminal court as any that come before the High Court. I would cite the cases of obtaining money by false pretences and receiving stolen goods knowing them to be stolen—questions involving, very often, the most difficult points of law and involving the most careful trial by a competent lawyer.
I venture to suggest that it is quite illogical to say that you will extend the jurisdiction of Quarter Sessions only to those Sessions which have a qualified Chairman but you will leave the present jurisdiction, which is much larger and just as difficult, in the hands of people who are not qualified Chairmen, and I shall continue to make that protest. I hope very soon the matter will be put right. Quarter Sessions are now themselves doing a good deal in the required direction, and I noticed in the Report of the Royal Commission that out of sixty-seven Quarter Sessions forty-eight already have qualified Chairmen. I cannot understand why the remaining twenty should not be quickened up and told they must have a qualified Chairman. But that is not now the proposal. I only venture to think it was most unfortunate that it has not been made good.
342 As to the other matter, the extension of the jurisdiction, I agree that the jurisdiction ought not to be extended for the simple reason that I think no jurisdiction ought to be exercised except by a qualified Chairman, and if you have not got a qualified Chairman you ought not to give the extended jurisdiction. I think that the Lord Chancellor has cured a very important defect, because he has now left the existing qualified Chairmen where they are. They have not got to resign; they have not got to be reappointed; and the jurisdiction will go. From that point of view I think the thing is good but I venture still to express a hope that at some time or another, perhaps in another place, provision will be made for securing what has been a crying thing of the profession for years—namely, that no Court of Quarter Sessions should seek to exercise its very important jurisdiction without being presided over by a qualified Chairman.
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLOR moved, in subsection (2), after "may" ["the Lord Chancellor may recommend"], to insert "upon the application of the Court." The noble and learned Lord said: This is consequential upon the previous Amendment. The application of the Court of Quarter Sessions will be introduced by the new subsection, and after "may" we insert "upon the application of the Court."
§
Amendment moved—
Page 1, line 17, after ("may") insert ("upon the application of the Court").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLOR moved, in subsection (3), to leave out "during good behaviour" and insert "for such term as may be specified in his appointment." The noble and learned Lord said: The object of this Amendment is to prevent the appointment being necessarily for life and to enable an agreement to be made as to the length of tenure of the Chairman or Deputy Chairman who has been appointed, and it has no other object than that. If a paid Chairman is thought necessary in a particular county it may not be possible to get an efficient person to accept the position unless he has some security of tenure; that is to say, may wish to hold his post for some years. 343 Accordingly, we propose to insert certain elastic words to enable this matter to be taken into account and the Chairman will be appointed "for such term as may be specified in his appointment."
§
Amendment moved—
Page 2, line 6, leave out ("during good behaviour") and insert ("for such term as may be specified in his appointment").—(The Lord Chancellor.)
§ VISCOUNT BERTIE OF THAMEIt appears to me that if a person is appointed for five years he may still hold his position under the words of this clause, as now proposed to be amended, although he is not of good behaviour.
§ THE LORD CHANCELLOR"Of good behaviour" is a somewhat technical phrase used largely in respect of High Court Judges and others of that kind when they are appointed, and I do not think it is suggested here in any way that a person appointed for five years, or a longer period, could not be removed for some proper reason. But I think it would be unnecessary to add the words "during good behaviour." If he has in fact been appointed for a number of years, that would be unnecessary and perhaps not altogether polite to him.
§ LORD ATKINI do not know whether the Lord Chancellor has considered it, but it did occur to me that perhaps one way of meeting what the noble Viscount, Lord Bertie, has said would be this. Any Chairman would obviously have to be on the Commission of the Peace and the Lord Chancellor has very large powers of removing persons from the Commission of the Peace. In a case where there was obvious good cause for a man ceasing to be Chairman, probably the Lord Chancellor would have it within his own power to prevent him being any longer Chairman.
§ THE LORD CHANCELLORI am much obliged to the noble and learned Lord. I have no doubt that is the case.
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLOR moved, in subsection (3), to leave out "and Chairman or Deputy Chairman, as the case may be, of the Appeal Committee appointed under Section seven of the Summary Jurisdiction and Appeals Act, 344 1933." The noble and learned Lord said: It was originally proposed in the clause of the Bill which your Lordships have before you, that the appointed Chairman should necessarily be Chairman of the Appeal Committee. The Appeal Committee, as your Lordships are aware, is a Committee appointed by the justices in Quarter Sessions for the purpose of dealing with appeals from petty sessions, and it has been suggested to those in charge of the Bill that in some cases it would be convenient that the two offices should be held by different persons, a thing which, according to my information, is not uncommon in certain of the counties. Accordingly, it was thought better to leave out the words which made it necessary for the appointed Chairman also to be Chairman of the Appeal Committee.
§
Amendment moved—
Page 2, line 9, leave out from the beginning to the end of line 11.—(The Lord Chancellor.)
§ LORD ROCHEI should like to make one suggestion to the Lord Chancellor on this matter. The Amendment quite meets with the assent of my mind, but I suggest that it might be wise before Report stage to consider whether you should not have a provision in Clause 4 empowering the offices to be united and the matter to be taken into account in fixing a salary. I agree entirely that it is desirable to dissever any compulsory joining of the offices, but it may be wise, since you have mentioned the Chairmanship of Committees other than the Appeal Committee in Clause 4, such as the Rating Committee, to have a reference there permitting the joining of two offices and permitting that to be taken into account in assessing the salary that is to be paid.
§ THE LORD CHANCELLORThe matter is, I think, a little complex because Clause 4 deals with the question of remunerating legally qualified Chairmen. If they are remunerated there is already a section—it is Section 7 of the Act of 1934—which provides for the appointment of Appeal Committees. Under that Act—here I trust to my memory, I think it is in subsection 1 (b)—you will find that a paid Chairman has necessarily to act as Chairman of the Appeal Committee as well as Chairman of the ordinary Court of Quarter Sessions. Accordingly under the Bill as it stands 345 a person who is remunerated under Clause 4 will be under an obligation to act as Chairman of the Appeal Committee. I hope that explains the matter and takes away the force of the criticism of the noble and learned Lord. If he is unpaid the position is different. In that case the removal of the words which I am proposing to remove by my Amendment would prevent it being necessary for an unpaid appointed Chairman to act as Chairman of these two bodies.
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLOR moved, in subsection (3), to leave out "either of the Court of Quarter Sessions or of the Appeal Committee." The noble and learned Lord said: This is simply a consequential Amendment. I beg to move.
§
Amendment moved—
Page 2, line 12, leave out from the second ("Chairman") to ("or") in line 14.—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLOR moved to leave out subsection (4). The noble and learned Lord said: This subsection is no longer necessary for the reason that in the Amendment to which your Lordships have already agreed in Clause 1 we have inserted a qualification for persons to be appointed by the Lord Chancellor. When you come to the definition of legally qualified Chairmen, that will be found in a subsequent Amendment to insert a new subsection in Clause 2. On that ground this subsection is no longer necessary. I beg to move.
§
Amendment moved—
Page 2, line 27, leave out subsection (4).—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Clause 1, as amended, agreed to.
§ Clause 2:
§ Extension of jurisdiction of Quarter Sessions.
§ 2.—(1) At any session of a Court of Quarter Sessions presided over by an appointed Chairman the Court shall (in addition to such jurisdiction with respect to the trial of offences as is vested in Courts of Quarter Sessions at the commencement of this Act) have jurisdiction to try a person charged with any of the offences specified in the First Schedule to this Act.
§ (2) In this section the expression "appointed Chairman" means any of the following persons, that is to say:— 346
- (a) a Chairman and a Deputy Chairman of a Court of Quarter Sessions appointed under this Act;
- (b) a Chairman and a Deputy Chairman of Quarter Sessions appointed under Section forty-two of the Local Government Act, 1888, and a person appointed under Section two of the Quarter Sessions (London) Act, 1896, to act as Chairman or Deputy Chairman of Quarter Sessions;
- (c) a Chairman and a Deputy Chairman of Quarter Sessions appointed under the Lancashire Quarter Sessions Act, 1928;
- (d) a Chairman and a Deputy Chairman of Quarter Sessions appointed before the commencement of this Act under Section ninety of the Middlesex County Council Act, 1934;
- (e) a Recorder, a Deputy Recorder and an Assistant Recorder.
§ (3) Where at any session of a Court of Quarter Sessions having an appointed Chairman no appointed Chairman is present, the Court shall nevertheless have jurisdiction to try a person charged with any of the offences specified in the First Schedule to this Act if the court is presided over by a justice of the peace for the county deputed to preside at that session by an appointed Chairman of the Court with the approval of the Lord Chancellor:
§ Provided that this subsection shall not apply to the Court of Quarter Sessions for the County of London or to the court of the Recorder of any borough having a separate Court of Quarter Sessions.
§ THE LORD CHANCELLORMy Amendment in subsection (1) is only a matter of drafting. Instead of the words "an appointed Chairman" it is proposed to insert "a legally qualified Chairman of the Court" which is to have these extended powers. I beg to move.
§
Amendment moved—
Page 2, line 32, leave out ("an appointed Chairman") and insert ("a legally qualified Chairman of the Court:").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§
THE LORD CHANCELLOR moved to leave out subsection (2) and insert:
(2) For the purposes of this section a person shall not, in relation to any Court of Quarter Sessions be deemed to be a legally qualified Chairman of the Court unless he is—
§ The noble and learned Lord said: The purpose of this Amendment is to define people who will be legally qualified Chairmen of the Court and who therefore will have extended jurisdiction. It may be explained that there are in this Amendment two things of substance. First, it is provided in paragraph (a) that a legally qualified Chairman of the Court shall be "a Chairman or a Deputy Chairman of the Court of Quarter Sessions appointed under this Act." That is to say, if the Lord Chancellor on the recommendation of a county has appointed a person who has in the terms of the subsection your Lordships have already passed a legal qualification, such a person will be within the meaning of this Bill a legally qualified Chairman of the Court. Then there are a number of others who, though not appointed by the Lord Chancellor have, owing to their own merits, as we will suppose, been appointed to places of distinction, and who are defined in paragraphs (b) (c) (d) (e) and (f) as being already legally qualified persons.
§ To put the matter in concrete form, it does not seem to be necessary for a member of the judicial Committee of the Privy Council or for a judge of the High Court to go to the Lord Chancellor in order to be appointed so that he should become a legally qualified Chairman of the Court. There are these two classes—persons appointed by the Lord Chancellor, and a large number of persons, who I am glad to say often do help with the work of Quarter Sessions, 348 who already have special qualifications and therefore do not need any recommendation by the Lord Chancellor, We carefully considered the people who should be within that class. I am not prepared to say that we may not have omitted some person who should be within it. If there is such a person I shall be very glad to consider an Amendment for his inclusion.
§
Amendment moved—
Page 2, line 38, leave out subsection (2) and insert the said new subsection.—(The Lord Chancellor.)
§ LORD ROCHEI think this is the stage at which I should trouble your Lordships with the few observations I have to make on these Amendments. When the matter was before your Lordships' House on the Second Reading stage the noble and learned Viscount who then occupied the Woolsack most kindly and courteously undertook to consider certain views which were expressed by my noble friends and to some extent by myself. That kindness and courtesy has been continued by the noble and learned Lord who now occupies the Woolsack and these Amendments are the result. Let me say frankly that I think they very much improve the Bill. They get rid of the necessity that in order that Quarter Sessions may have this extended jurisdiction all appointments must be made by the central Government through the person of the Lord Chancellor making recommendations. The provisions of the Bill originally I thought would be very offensive to many great counties. The Bill with the Amendments which your Lordships have adopted and are asked to adopt leaves all appointments where there is to be payment in the hands of the Lord Chancellor. That I think is right because the Lord Chancellor has much better knowledge of the persons qualified and desirous of occupying these positions for remuneration than any one else, and it does away with the chances of lobbying and canvassing.
My complaint, so far as I have still a complaint to make, is that this list of persons who are to be deemed to be legally qualified is not quite extensive enough. I can quite understand that the noble and learned Lord may think it too much to assume that every solicitor of ten years' standing or every barrister of ten years' standing is legally qualified so as 349 to be capable without the Lord Chancellor's consideration to have the extended jurisdiction, but I venture to suggest that that view should not exclude the Law Officers of the Crown. I should like those words in, if for no other reason than that the Deputy Chairman to myself in my county is His Majesty's present Solicitor-General. Moreover, I should like the "Law Officers of the Crown" to include Directors of Public Prosecutions, and I will tell your Lordships quite frankly why. Directors of Public Prosecutions are very busy men, and when they retire they like some occupation. One of them, the most distinguished criminal lawyer, perhaps, in this country, Sir Archibald Bodkin, is Chairman of Devon Quarter Sessions, a great county, and I cannot help thinking that that county would feel—I will not say resentment, but would feel it very distasteful, to have to come to the Lord Chancellor to make representations that their Chairman should be appointed. I think no risk would be run by including in "Law Officers" Directors of Public Prosecutions.
I have one more suggestion, and it is a more important suggestion, to make: that His Majesty's Counsel should be deemed to be legally qualified. There are some 300 of them in the world, but after all, they are all appointed by the Lord Chancellor from the Bar. It may be said that they are not appointed for the exercise of criminal jurisdiction. Given the intelligence which has led to their appointment, and given their election by their fellows in their counties, I think that no risks would be run in allowing them to be deemed to be legally qualified. I earnestly press for that, because there are at least two, three, four or five important counties in England which at present have King's Counsel as Chairmen whom they value and about whom they would much rather not go cap in hand to the Lord Chancellor for reappointment. This proposal is, I think, justified as a matter of principle, and it is justified as a matter of experience. As a matter of principle, unlike my noble friend Lord Cautley, I do not want to see Chairmen generally paid. I want to see them go on doing their work as they have done it for centuries, unpaid, except in the busy and rather suburban areas. I do not think you will get that unless you indulge, as you may call it, the pride or the prejudice of the counties in allowing them to select 350 their Chairmen from a proper list of legally-qualified persons.
As a matter of experience, I have with the assistance of the Court of Criminal Appeal looked into the statistics for the last three years of the appeals to the Court of Criminal Appeal. I can give your Lordships the result in round figures in a few words. The Chairmen of Quarter Sessions, who, as my noble friend Lord Atkin has already said, as to two-thirds are already legally qualified persons, come better out of the comparison than the Recorders or the inferior Judges who are appointed by the central authority. There are about fifty successful appeals per annum, or 150 successful appeals for the last three years in question. The High Court, as you may suppose, comes best out of the comparison. Whereas they try nearly half the cases—certainly two-fifths of the cases—only one-fifth of the successful appeals are appeals against trials presided over by a Judge of the High Court. Two-thirds of the rest are successful appeals from Recorders and Judges short of the stature of High Court Judges sitting in the Central Criminal Court, London Sessions and so forth; and only one-third are appeals from trials held by the Chairmen appointed by the counties. For those reasons I venture to suggest that experience points where principle points: to the further extension of that which the Lord Chancellor has been good enough to propose in paragraph (b). I have only one other very meticulous point. I am not sure, but I think my noble friend Viscount Bertie would be the best judge of such matters, that the word "or" ought not to be inserted after paragraphs (a), (b), (c), and (d); but of that I confess I am not a judge and that he is a better one.
§ VISCOUNT BERTIE OF THAMEI do not profess to be an expert on grammar. An expert, I take it, is a person who talks enough, whether he knows anything about the subject or not. But with regard to the point raised by my noble and learned friend Lord Roche, I think it would be more usual to put an "or."
§ THE LORD CHANCELLOROn the question whether "or" should be put in, I venture to suggest it would be sufficient to put in "or" at the end of para- 351 graph (e) In other words, it would run "(a), (b), (c), (d), (e) or (f)." That would be sufficient to show that the words were alternative. That might perhaps be done at a later stage. With regard to the suggestion of my noble and learned friend Lord Roche, I will undertake that it shall be carefully considered before the matter comes up on Report. As at present advised, my view is that ex-Law Officers of the Crown, and Law Officers too, ought to be in the list of persons in subsection (2) who need not be appointed by the Lord Chancellor. I would say the same of Directors of Public Prosecutions. I would point out that as the subsection stands, the persons mentioned in (b), (c), (d), (e) and (f) are, almost without exception, being paid for services of a legal character rendered to the State. I do not think that will apply to past members of the Judicial Committee who may be unfortunate enough not to have a pension. Speaking generally, however, they are persons who are paid. The ex-Law Officers and the ex-Directors of Public Prosecutions would be in another class, in that they would be in receipt of nothing from the Crown in the ordinary way. It would, I think, as at present advised, be advisable to include them in the hope, as my noble friend said, that sometimes they will be able and willing to act as Chairman or Deputy Chairman of the Court of Quarter Sessions without any remuneration at all.
With regard to the class "King's Counsel," I am in a greater difficulty. I entertain considerable doubts at present whether the Government would be able to put them in the clause. It is to be noted that King's Counsel are often appointed who have never acted in connection with criminal matters at all and who therefore have no experience whatever in the sort of matters with which a Chairman or Deputy Chairman would have to deal at Quarter Sessions; and also they are, or may be, persons who have considerable distinction as jurists or something of that kind but who would be not all suitable as Chairmen of the Court which we are considering. It is not a sufficient answer to say that in that case they would not be elected Chairmen of Quarter Sessions, for this reason: that I know from experience that many laymen consider that if a man is a K.C. there is no branch of law at which he is not an 352 expert. There may be cases in which, under an addition of all past or present persons with the patent King's Counsel, somebody would be appointed as Chairman or Deputy Chairman of the Court who really was not in the least legally qualified to act as Chairman of that Court. However, I promise further to consider the matter, and it can be brought up on the Report stage.
§ LORD ATKINPerhaps the noble and learned Lord will forgive me adding one class of person, and I shall be quite satisfied if he will consider the matter. Difficulty seems to arise in this way. Quarter Sessions which have a Chairman qualified in this way will be a Court which will automatically have the increased jurisdiction. Suppose the Chairman retires or dies, and they then wish to appoint another man. They lose their jurisdiction if they appoint such a person as my noble and learned friend referred to—if they appointed Sir Archibald Bodkin or a retired Law Officer, or the Recorder of a large town in the county. It seems very remarkable that the Recorder of Birmingham, who presides over the Sessions at Birmingham, with an immense list, and immense experience, should not be qualified to preside over the Warwickshire Quarter Sessions. I think the position of Recorders might very well be considered.
§ THE LORD CHANCELLORI will undertake that the matter shall be very carefully considered before the Report stage.
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLORThe next Amendment is purely consequential.
§
Amendment moved—
Page 3, line 57, leave out ("an appointed Chairman no appointed") and insert ("a legally qualified Chairman no legally qualified").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLORThe next also is consequential.
§
Amendment moved—
Page 3, line 22, leave out ("an appointed") and insert ("a legally qualified").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Clause 2, as amended, agreed to.
§ Clause 3 agreed to.
353§ Clause 4 [Power to remunerate legally qualified Chairmen and Deputy Chairmen of Quarter Sessions]:
§ THE LORD CHANCELLORThe Amendment to this clause is purely drafting. Having regard to what we have done, it is now necessary to make that apply to the provisions of subsections (1) and (2), and therefore the Amendment is to insert "foregoing provisions."
§
Amendment moved—
Page 5, line 13, leave out ("provisions of subsection (1)") and insert ("foregoing provisions").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Clause 4, as amended, agreed to.
§ Clause 5 [Amendment as to power to cancel Assizes]:
§
LORD CAUTLEY moved to insert at the beginning of the clause:
In all cases of a criminal character heard at a Court of Quarter Sessions for a county presided over by an appointed Chairman including appeals to the Appeal Committee appointed under Section seven of the Summary Jurisdiction and Appeals Act, 1933, and appeals to the whole Court under its other jurisdiction if any the sentences or penalties imposed thereat shall be fixed and imposed solely by the appointed Chairman.
The noble Lord said: I would like to move this Amendment for the consideration of your Lordships. It is to alter the system by which sentences are fixed in the case of trials before the legally qualified Chairmen appointed by the Lord Chancellor. The object of appointing legally qualified Chairmen is that trials should be conducted in the most approved manner, as required by the Court of Criminal Appeal—an object most desirable in itself and one which I have been attempting to get applied to all Quarter Sessions in the country. When a trial is over, and a conviction has followed, the sentence, as any experienced lawyer or person who presides in these Sessions will tell you, is the most difficult part of the whole proceeding. Most lawyers have no difficulty in trying the criminal, but every Chairman or Recorder has the greatest difficulty in apportioning the sentence.
§ The sentence comes to be decided by the whole Court of magistrates who have attended during the trial. In some cases you may have twenty magistrates, or even more, with different views and different prejudices, all to apportion the 354 sentence, with the result that if the Chairman's views are not accepted it may lead to division of opinion and even a vote. I venture to suggest that it is extremely desirable that this system should be altered, and that where you have an experienced Chairman—my Amendment applies only to a trial taken part in by him—the apportioning of sentence should be decided by the Chairman who has presided, who has this knowledge of the law, which is the very reason for which he has been appointed. He is aware of the tendency and the actual decisions of the Court of Criminal Appeal, and so we may get the same tendency, not only in the proceedings of these Courts, but in the sentences given for similar offences all over the country. I think this may get rid of an evil which has continued for a very long time, and I beg to move the Amendment.
§
Amendment moved—
Page 5, line 21, at the beginning, insert the said new words.—(Lord Cautley.)
LORD RAGLANI hope the noble and learned Lord will not accept this Amendment, because it would render the appointed Chairman the sole member of the Court. The only part of the proceedings in which the magistrates, other than the Chairman, have to take a part, is in giving an opinion as to the sentence. The result of this Amendment would be that they would not come to the Court at all.
§ LORD ROCHEI agree with the noble Lord that this Amendment would render the Quarter Sessions inoperative. No one would attend. The jury would find the verdict, and the Chairman would give the sentence. I wonder whether the noble and learned Lord would be prepared to embody in this Bill, somewhere, a provision that the Chairman should have a casting vote? I do not think that matters often go to a vote—they very rarely do go to a vote—but such a provision appears already in Acts relating to rating matters, and it would be a moral assertion of the superiority of the Chairman, which would enable him, if he thought necessary, to exercise more severe jurisdiction over recalcitrant members of the Bench than at present he is able to do. I think it would be a right provision, and would mark the superiority of the Chairman without giving him that absolute sway which the noble Lord desires.
VISCOUNT MERSEYI would also wish to support what has been said by the noble Lord opposite. The effect of making the Chairman the sole deciding judge on the question of sentence would reduce the ordinary country magistrates to nothing at all. The country magistrates do a good deal of work, and they frequently come from petty sessions, where they know the first beginnings of the cases which are tried. As the noble Lord opposite is a Chairman of Quarter Sessions he knows that in fact the Chairman, especially if he is a legal Chairman, nearly always takes a prominent part. I do not remember a case of a vote being taken on a sentence, and I think it would be a very great mistake to take away from the ordinary justices the only raison d'être they have got.
§ LORD MARLEYI have known cases of a vote being taken, and really the whole procedure seems to be ridiculous when you have a large number of magistrates at a Quarter Sessions and they discuss among themselves this question of a sentence. The suggestion of a casting vote would be no help unless there was equal division among the magistrates. I cannot see that the casting vote would do more than give a chance of making a decision. I should have thought something might have been worked out in connection with an admitted difficulty, under which the advice of the Chairman should be taken in some way unless there was a good reason for going against it. But unless you desire that ordinary magistrates should not attend Quarter Sessions I certainly should not like this to remain as it is.
§ THE LORD CHANCELLORThough I am afraid I must appear rather unkind to the noble Lord, Lord Cautley, I am still quite unable to accept any of these Amendments. This Amendment is of a very drastic character, and would entirely revolutionise the position of the justices who are good enough to attend Quarter Sessions, because they would in effect have no voice in the really important part of the proceedings. I think it is impossible for that to be accepted by the Government. In regard to the question of a Chairman having a casting vote I shall be very willing to consider it before the Report stage. It is true that in rating matters a Chairman is given a casting vote. The reason, I think, why it has 356 never yet been provided that the Chairman of Quarter Sessions should have such a casting vote is that it is so rare, though it does occasionally happen, that there is any counting of votes at all. There is a majority one way or the other, and there is no necessity for the Chairman to do anything more than take the views.
§ LORD CAUTLEYI am quite aware that in proposing this Amendment I was in fact suggesting that the Chairman of Quarter Sessions when he was a legally appointed Chairman, and ultimately a paid man, as he will be, should be put on the same footing as a Recorder. After years of experience in the law of a certain kind, both as practising in the Recorder's Court and the Court of Quarter Sessions, and of administering the law in both, either as Chairman of Quarter Sessions or as a Recorder, I am firmly convinced that trials are better conducted and justice is more efficiently administered in the Recorder's Court than in the Court of Quarter Sessions. However, I have ventilated the subject, and I beg leave to withdraw.
§ Amendment, by leave, withdrawn.
§ Clause 5 agreed to.
§ Clause 6:
§ Amendments as to committal to Assizes or Quarter Sessions.
§ 6.—(1) The power conferred on justices by Section one of the Assizes Relief Act, 1889, to direct that a person charged with an indictable offence triable at Quarter Sessions shall be tried before a Court of Assize instead of at the next practicable Court of Quarter Sessions having jurisdiction to try the offence shall not be exercised unless they are of opinion that there are circumstances which make the case an unusually grave or difficult one, or that serious delay would be occasioned by committal to Quarter Sessions.
§ THE LORD CHANCELLOR moved, in subsection (1), after "delay," to insert "or inconvenience." The noble and learned Lord said: This is a very small point. The justices have power under the Assizes Relief Act, 1889, to direct that a person charged on an indictable offence and triable at Quarter Sessions be tried at the Court of Assizes if there are special reasons. It has turned out in practice that the justices treated that as entitling them to send the matter to Assize if Assizes were going to come on in a few days or a short time before the next Court of Quarter Sessions, and accordingly, the Peel Commission having greatly objected 357 to that practice, this clause was put in to say that the justices were not to take that course unless they were of opinion that there were circumstances that made the case an unusually grave or difficult one, or when serious delay would be occasioned. The suggestion now made is that the word "inconvenience" should be inserted after "delay," because consideration has shown that there are cases where there would not be great delay but there would be considerable inconvenience. I will only give one illustration. It might be that there were attendances of witnesses required at the Court of Quarter Sessions, which would cause considerable difficulty.
§
Amendment moved—
Page 5, line 40, after ("delay") insert ("or inconvenience").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Clause 6, as amended, agreed to.
§ Clauses 7 to 12 agreed to.
§ Clause 13:
§ Assimilation of proceedings on Crown side of King's Bench Division with other proceedings in that division.
§ 13. The enactments relating to the Supreme Court shall apply in relation to proceedings on the Crown side of the King's Bench Division as they apply in relation to other proceedings in the King's Bench Division, and so much of any provisions of the said enactments as specifically relates to the Crown side of the King's Bench Division shall cease to have effect.
§ THE LORD CHANCELLOR moved to leave out Clause 13. The noble and learned Lord said: Careful consideration seems to show that this clause is really unnecessary. One part of the clause was designed to justify the repeal of two passages in the Judicature Act, which are now repealed by the Second Schedule to the Bill. The other part of the clause, it was found, was unnecessary, and its terms appeared to have very wide implications that were not intended.
§
Amendment moved—
Leave out Clause 13.—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Clauses 14 and 15 agreed to.
§ THE LORD CHANCELLOR moved, after Clause 15, to insert the following new clause:
358§ Provisions as to appeals from the Mayor's and City of London Court.
§ "—(1) An appeal from proceedings in the Mayor's and City of London Court not within the jurisdiction of a County Court shall lie to the Court of Appeal in all cases in which such an appeal could have been brought if the proceedings had been in the High Court; and subject to rules of court, an appeal from any such proceedings may be heard and determined by the Court of Appeal in like manner in all respects as if the proceedings had been in the High Court.
§ (2) In this section the expression 'appeal' includes any motion for a new trial or to set aside a verdict, finding or judgment."
§ The noble and learned Lord said: This new clause is due to a consideration of the peculiar position in which appeals from proceedings in the Mayor's Court have been for a long time. The matter came before the Court of Appeal in quite a recent case, and Lord Justice Slesser was concerned to point out that the appeals from the Mayor's Court were in a very unsatisfactory position, because if they were matters which could have been brought in the County Court there would be an appeal in the same way as if it had been a County Court appeal; whereas, if the Mayor's Court had tried a matter which was beyond jurisdiction of the County Court, the appeals there were of a very curious nature. In the first place the suitor who wished to appeal under Section 8 of the Mayor's Court (Procedure) Act had to enter notice of appeal within two days. Well, that is a very short time. He then had in all cases to give security for costs, and if he were a defendant he had to give a security for the amount of the judgment. Of course that is entirely obsolete according to our modern ideas. Moreover, the language of another section which deals with the matter of appeals from the Mayor's Court is both archaic and obscure.
§ It was thought very necessary while this Bill was going through this House to make it clear that there should be an appeal from judgments or orders in the Mayor's Court and to define how they should stand. The present proposal is to add a clause to say that if the appeal is not within the jurisdiction of a County Court—a matter which perhaps will require a little further definition—there should be an appeal to the Court of Appeal just as if it were an appeal from a High Court decision, because, although I am rather glad to say the jurisdiction 359 of the Mayor's Court is not often strained in such a way, there is no pecuniary limit to the jurisdiction of the Mayor's Court, and it might be a matter which involved very many thousands of pounds. The new clause which I propose provides that subject to rules of court an appeal from proceedings in the Mayor's Court may be heard and determined by the Court of Appeal in like manner as if the proceedings had been in the High Court. In the second subsection "appeal" is defined to include what I suppose many people would think it would naturally include—motions for a new trial or to set aside a verdict, finding, or judgment. Your Lordships will agree that, with regard to appeals which are outside the County Court jurisdiction, it is most desirable that we should define the circumstances in which such appeals may be brought and the period, date, and so forth which ought to be applied to them. I beg to move.
§
Amendment moved—
After Clause 15 insert the said new clause.—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Clause 16:
§ Extension of jurisdiction of County Court.
§
16. The amounts by reference to which the jurisdiction of a County Court in actions of contract or tort or for money recoverable by Statute is limited by Sections forty and forty-one of the County Courts Act, 1934, shall be increased by two hundred pounds, and accordingly for references in those sections to one hundred pounds there shall he substituted references to three hundred pounds:
Provided that if the amount claimed exceeds one hundred pounds, the defendant may give notice that he objects to the action being tried in the County Court, and, where such notice is given, the Judge shall order that the action be transferred to the High Court.
§ THE LORD CHANCELLOR moved, in the proviso, after "may," to insert "within such time as may be presibed by County Court rules." The noble Lord said: This is an Amendment which is obviously necessary. It deals with the suggested power to increase the jurisdiction of the County Court in such a way under Clause 16 that the amounts by reference to which the jurisdiction is limited should be increased by £200, provided that if the defendant gives notice that he objects to the action being tried in the County Court, it automatically goes to the High Court. Nothing is said 360 about time, and accordingly it would be necessary in rules to prescribe the time. Here is the sort of point that appeals to lawyers but does not appeal so much to laymen. Doubts have been expressed whether a rule saying notice should be given within ten days would be intra vires or not. It is a small matter, but it is quite clear that such rules should be made, and, in order to remove doubts, it is thought the safer course would be to insert the words, "within such time as may be prescribed by County Court rules." I beg to move.
§
Amendment moved—
Page is, line 20, after ("may") insert ('within such time as may be prescribed by County Court rules").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ THE MARQUESS OF READING moved, in the proviso, before "the High Court," to insert ", and the action shall thenceforward proceed in all respects as if it had originally been commenced in,". The noble Marquess said: I am not by any means confident that the particular words I have put down are apt for their purpose, but I should be quite content if the Lord Chancellor would consider, before the next stage of the Bill, whether there be any merit in the point they are intended to make. I quite realise that Clause 16 is permissive as far as the defendant is concerned, but I want to be quite clear that the power given to him to refuse to have his case tried in the County Court, and to insist on its going to the High Court, is an unfettered one in this sense, that it shall not be open to the Judge who ultimately tries the case in the High Court to say to a successful defendant: "True, you have won your case in the High Court, but it was a case in which a very small amount was involved. I think you ought to have allowed it to stay in the County Court, as the plaintiff originally started it, and, having a discretion in regard to costs, I propose to exercise that discretion by only giving you, although successful, costs on the County Court scale." That would be a penalty which, in my submission, would be quite unjust within the framework of this clause, but it is a situation which is not provided for in the Bill as at present drafted. I beg to move.
§
Amendment moved—
Page 11, line 23, after ("to") insert ("and the action shall thenceforward proceed in
361
all respects as if it had originally been commenced in,").—(Marquess of Reading.)
§ THE LORD CHANCELLORMy noble and learned friend is quite right in thinking there must be some provision for the way in which an action shall then proceed if it has been begun in the County Court and, under the proviso in Clause 16, is transferred to the High Court. But there is, in fact, full power by rule to provide how the action is to proceed in the High Court, and the intention is, as soon as this Bill becomes law, to apply to have such rules made as will provide in all respects for the way in which such a transferred action shall proceed. Whether the Rules Committee will think fit to fetter the discretion of the Judge in the matter of costs is another question, but my noble and learned friend may rest assured that the whole matter of a transferred action will have to be considered in detail before the Rules Committee, and they will do their best to do what is just and proper in the matter.
§ Amendment, by leave, withdrawn.
§
VISCOUNT BERTIE OF THAME moved to add to the clause:
Provided always, that if the action is in respect of loss or damage caused by mining subsidence to a dwelling-house of which the rateable value does not exceed forty Pounds, the Judge may, if he thinks fit, having regard to the relative means of the parties, order that the action shall not be transferred to the high Court.
The noble Viscount said: As long ago as 1927 the Royal Commission on Mining Subsidence recommended that the principle embodied in this Amendment should be incorporated in an Act of Parliament, but it was not until seven years later, in 1934, that an opportunity, as I thought, presented itself in the County Courts (Amendment) Bill of that year. When I moved a similar Amendment to that now under discussion, the noble and learned Viscount, Lord Sankey, who then occupied the Woolsack, resisted the Amendment on behalf of His Majesty's Government on the ground t hat that Bill was not suitable for such a purpose, as it was introduced merely for the purpose of paving the way for the consolidation of the County Courts Acts. He suggested that the proper place for such an alteration in the law was a Coal Bill. Your
362
Lordships therefore may be somewhat surprised that I again venture to bring this matter forward in a non-Coal Bill.
§ I will make no apology for doing so for a very good reason. Recently in another place an honourable member tabled an Amendment to the Coal Bill to cover this point, but his Amendment was ruled out of order by Mr. Speaker, so the question now arises, what is the proper class of Bill which can remove this grievance? We are first told in 1934 that the opportunity is a Coal Bill, and when an attempt is made in a Coal Bill the point is ruled out of order. The people whose houses are injured by mining subsidence are nearly always in humble circumstances. They are mostly unorganised, which perhaps explains their inability to get justice done. They are often not in a financial position to apply to the High Court, and it is on their behalf that I now appeal to your Lordships, so that they may be enabled to have their cases tried in the County Court, providing the County Court judge thinks that, having regard to the relative means of the parties, the case ought not to be transferred to the High Court. I beg to move.
§
Amendment moved—
Page 11, line 23, at end insert the said new proviso.—(Viscount Bertie of Thame.)
§ THE LORD CHANCELLORThis is an interesting Amendment which raises a point of some little difficulty, but I am unable to accept the Amendment for reasons I shall hope to indicate. The object of the Amendment is that an action, if it is an action due to mining subsidence of a dwelling-house of a particular value, must necessarily remain in the County Court presumably although the defendant wishes to go to the High Court. I am afraid this is a matter in which I must plead guilty to a great deal of experience, although in regard to many matters which have been dealt with to-day I have had to receive my information from others. Subsidence actions, as some of your Lordships will be aware, are often of the very greatest difficulty. They are often, I agree, expensive; they require expert evidence which has got to be tested by all the means open to counsel of eminence; and it may be impossible to dispose of them under a number of days of argument. There was a time when I appeared 363 constantly in these actions, and I am afraid I know what a terrible time they often involve.
If such an action as that was brought in a County Court the difficulty which I foresee is not that the County Court judge is not quite able to deal with it so far as his competence is concerned, but that very few County Court Judges can proceed with a case de die in diem if it is a case of any length or difficulty or which involves a prolonged period, and nothing can be more fatal from the point of view of the litigants on both sides, and the witnesses, whether they be expert or lay witnesses, than that a case tried or begun in a particular Court in a particular time should have to stand over for a week at the end of part of a day, to be continued at another County Court, then to be stood over a short time to go to a third Court, again to be stood over and for a fourth time to come back to the original Court and so be dealt with in a piecemeal fashion. It is far better and far cheaper in the end in such a case for the parties concerned that it should go before a Judge who can deal with the case de die in diem and get rid of it straight away. That is the reason why, in my opinion, it is impossible to say that every one of these cases ought to remain in the County Court.
§ VISCOUNT BERTIE OF THAMEMay I interrupt my noble and learned friend? I understand he thinks that it automatically remains in the County Court, but that is so only if the County Court Judge thinks the relative means of the parties require that it should remain in this Court.
§ THE LORD CHANCELLORI may have been guilty of a slip of the tongue, and if so I apologise for it. I was well aware it was in the discretion of the Judge, but I am pointing out that there are good reasons why a number of such cases ought to go to the High Court, and, having regard to that, I venture to think it is unwise to place this action for subsidence, which is an action in tort, in quite a peculiar position with regard to jurisdiction. I was going to add another thing. The action may be in respect of a particular dwelling-house in a particular village, but it may be a test action and may be intended ultimately to provide for, we will say, fifty or one hundred 364 houses which, it is alleged, have been damaged or as to which it is alleged that damage is probable from subsidence. In that case, again, it would be most desirable that the action should be tried once for all in the High Court. I am unable to see anything in the nature of an action for mining subsidence which makes it necessary to give the judge a special jurisdiction to say that in fact he must keep the action in his Court. I take the contrary view. I think there are very few such actions which can ever be properly brought in the County Court, and if a plaintiff should sometimes think fit to start such an action in the County Court I think the defendant should have the right, given by the proviso to the clause as it stands, to say he objects to that, and the action should then go to the High Court.
§ VISCOUNT BERTIE OF THAMEI am disappointed naturally with the reply of my noble and learned friend. I will not press the Amendment, but I will have it negatived.
§ On Question, Amendment negatived.
§ LORD CARNOCK moved to leave out Clause 16. The noble Lord said: I feel it rather impertinent on my part, after these two Amendments have been moved, to move my Amendment, which is to delete Clause 16 altogether. The reason I do so is that, in my opinion, the alteration of the jurisdiction of the Court from the sum of £100 to £300 is a very serious alteration. £300 may not seem a large sum to many of your Lordships here, but it is a very large sum to many poor people who deal with the County Courts. I do not want to bore your Lordships with the history of the County Courts but to those of your Lordships who are interested in legal history they are an interesting subject. Lord Brougham, who was sitting on the Woolsack in 1830, proposed that County Courts should be instituted. There were other courts in existence at that time to deal with small amounts, but he proposed the introduction of County Courts. Your Lordships' ancestors threw out the Bill owing to the eloquence of Lord Lyndhurst. In course of time Lord Lyndhurst himself was elevated to the Woolsack and he found it necessary to introduce the County Courts Act.
§ County Courts were then introduced. Their jurisdiction in those days was only 365 for £20, but they were immediately popular, and they were popular for this reason, that they were simple and cheap. There were no pleadings, the procedure was quick, and poor people found in them something which they wanted. Since then the jurisdiction has, of course, been increased. It went up from £20 to £50, and I think in 1903 it went up to £100. There were members of your Lordships' House who objected to this increase for the same reason that I object to the increase which is now proposed. But the matter is a little different now. The tendency of modern legislation is for the State to take over more and more control. The consequences are that almost yearly Bills are passed and become Acts which are dealt with by the County Courts. I will mention a few. County Courts have to deal with the Agricultural Holdings Act, with the Rent Restrictions Acts, with the Tithe Acts, with the Workmen's Compensation Acts, with Landlord and Tenant Acts, and, in addition, with the ordinary common pleas of the poor people.
§ I have been able to get a number of figures which I believe are correct. There are 500 Courts in the country, and in 1935 they dealt with 1,200,000 cases. I do not say that all those cases were actually fought in the Courts, but they were cases dealt with by the County Court Judges and their Registrars. The cases that were actually heard numbered 30,000. My submission to your Lordships is that the County Court Judge and his Registrar do the main work of the law, and to put the additional burden on them of dealing with cases which will involve quite a different type of person than the person now using the County Court is unfair, and I say it is a physical impossibility. My point is that cases which involve a sum as large as £300 will not only bring in a different type of plaintiff and defendant but also a different type of counsel. Expensive, important counsel will come to the Court, and the wretched solicitor who is appearing for a poor labourer with a case involving perhaps two or three pounds may—I do not say he will, but there is a danger that he will—find the more important case getting priority. The poor man may find himself not treated with that courtesy and respect which he now receives. I do not see the necessity of it. Perhaps the noble and learned Lord will say 366 there is some reason. I do not pretend to know. Are the people who deal with sums as large as £300 unable to come up to London or to go to the High Court? Is the work so tremendous in the High Court that it has to be put on the already over-burdened shoulders of the County Court Judge? I beg to move.
§
Amendment moved—
Leave out Clause 16.—(Lord Carnock.)
§ THE LORD CHANCELLORAlthough I do not entirely agree with what the noble Lord has said, I do think that the question of raising the jurisdiction of the County Court by Clause 16 is a matter of considerable seriousness and I think he is perfectly justified in raising the question before your Lordships. In the opinion of all your Lordships, and certainly in the opinion of anyone who is experienced in the law, it is right to say that the County Courts are poor persons' courts and that the work done in settling the difficulties that arise between poor persons—dealing with judgment summonses, the collection of small debts and so on—ought to be done by the County Courts and in a sense as far as possible should have priority over work involving larger sums. If I thought that this clause was going in any way to affect the efficiency of the County Court Judges in dealing with poor persons' work I would have myself nothing in the world to do with it. But the effect of it is not going to be, as I am advised, anything like so important as my noble friend seems to think. My noble and learned friend Viscount Hailsham dealt with this matter on Second Reading, and he told your Lordships that the increase of cases which it was thought would be tried by County Court Judges under Clause 16 as it stands was estimated at 750 for the whole country. If there are 500 County Courts that is only one and a half for each Court, which ought not very seriously to interfere with their work.
But I agree that this is of the nature of an experiment. I am, as I have already said, most unwilling to put upon the County Courts as a speculation or an experiment anything that is going to affect their efficiency in dealing with work concerning the poorer class of litigant. If my noble friend would think fit on the Report stage to move an Amendment reducing the figure of £200 where it first stands to £100, I would give it the most 367 careful consideration, and I might be able to accept it, but the clause as a whole I am convinced will be all to the good. It is a clause which was proposed by the Peel Commission after hearing a large number of County Court Judges and others who gave evidence, and I am quite unable to accept the proposed Amendment to strike it out. I have gone as far as I possibly can in saying that on Report I should be very glad to consider an Amendment somewhat modifying the effect of the clause.
§ LORD CARNOCKAfter what the noble and learned Lord has said I beg leave to withdraw my Amendment, and I will take his advice.
§ Amendment, by leave, withdrawn.
§ Clause 16, as amended, agreed to.
§ Remaining clauses agreed to.
§ First Schedule:
- FIRST SCHEDULE. cc367-74
- ADDITIONAL OFFENCES TRIABLE AT QUARTER SESSIONS. 2,577 words