ADMINISTRATION OF JUSTICE BILL [H.L.] (Hansard, 23 May 1960)

HL Deb 23 May 1960 vol 223 cc1108-23 1108

§ 2.48 p.m.

§ Order of the Day for the House to be again in Committee read.

§ THE LORD CHANCELLOR (VISCOUNT KILMUIR)
My Lords, I beg to move that the House do now resolve itself into Committee.

§ Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)

EARL ST. ALDWYN
My Lords, through the usual channels the second day of the Committee stage was fixed for to-day, to meet the convenience of noble Lords opposite who still had some Amendments to move, on the understanding that the arrangements made for the subsequent stages of the Bill should not be disturbed. It had been proposed that the Report stage should be on Thursday next and the Third Reading 1109 on Monday next. However, I think your Lordships will agree that it may be for the convenience of the House for a slightly longer interval to lapse between the conclusion of the Committee stage and the Report stage. I therefore propose that the arrangements for the further stages be revised so that the Report of Amendments will be received on Monday next and the Third Reading on Thursday, June 2.

§ On Question, Motion agreed to.

§ House in Committee accordingly.

§ [The LORD MERTHYR in the Chair.]

§ LORD CHORLEY
moved, after Clause 13 to insert the following new clause:

§ Procedure on application for attachment or committal

§ ". Provision shall be made by rules of court:—

(a) for the hearing in public of any application in the High Court to attach or commit any person for contempt of court;
(b) for enabling any person whom it is sought to attach or commit for contempt of court in the High Court to give oral evidence in the proceedings, if he so desires."

§ The noble Lord said: This is a point which I raised on the Second Reading. I said then that it was really a Committee stage point, but as I was not sure that I should be able to be present at the Committee stage I felt that it might be possible to deal with the matter by means of getting a suitable assurance from the noble and learned Viscount. The point is in relation to these contempt cases where there are applications for attachment or committal of the party who is in contempt. I pointed out that in the Bill of the noble and learned Lord, Lord Shawcross, which did not get very far because of the Government's Bill, this matter was provided for on the basis that rules of court should make provision for the hearing in public of any application in the High Court to attach or commit any person for contempt of court. Your Lordships will see that the Amendment down in my name this afternoon is taken directly from that Bill.

§ I felt that I had to go on with this, because although the noble and learned Viscount was helpful he was helpful only up to a point, if I may say so. In effect, he said that this matter could be dealt with by rules of court, and he went on to say, in effect, that there would be cases where it was not in the public interest that the matter should be dealt 1110 with in open court. I can quite understand that that might be so exceptionally, but it seems to us that the basic principle that these matters should be dealt with in public when an application is made ought to be written into the Act itself, and that such rules of court as are drawn up—and of course they will have to be—should deal with any exceptional cases that there may be, rather than leaving it on the rather big basis which at present exists. I have no doubt that the noble and learned Viscount would see to it that the rules of court are quite reasonable in this regard, but I feel, and those with whom I have been having discussions about this matter feel, quite strongly that it is important that this provision should be written into the terms of the Act itself. That is the reason why I have put this Amendment down for your Lordships' consideration this afternoon.

§ I add a second point, which your Lordships will see in paragraph (b), that the rules should also deal with the problem of enabling a person whom it is sought to attach or commit for contempt to give oral evidence in the proceedings if he wishes to do so. These cases, are, as your Lordships know, quite often dealt with on affidavit, and, normally speaking, I think there is no particular difficulty about that; the parties in question are quite content that they should be handled in that way. Probably if an application were made for oral evidence to be given by the party the court would accede to it. But here again it seems that it is just as well that this rather basic right of the citizen should be written into the terms of the Act itself, and therefore I have put this subsidiary amendment down as well as the other one. I beg to move.

§ Amendment moved— After Clause 13 insert the said new clause.—(Lord Chorley.)

§ THE LORD CHANCELLOR
I think it would be convenient if I said something on this Amendment at this stage, because I am very anxious that the matter should be properly considered. Therefore I will ask your Lordships' indulgence if I set out the procedure so that not only the noble Lord, Lord Chorley, but those who have been consulting with him will have a chance of considering it and perhaps applying their minds to the particular point.
1111 The noble Lord mentioned that this was in the same terms as Clause 3 of the Bill of my noble and learned friend Lord Shawcross, but of course it does not include paragraph (c) of that clause, which reads as follows: (c) for enabling applications in the High Court to attach or commit any person for contempt of court to be heard in camera where the interests of infants are concerned, save as to any judgment attaching or committing any person. I will return to the fact that Lord Shaw-cross's Bill did provide for exceptions in a moment. The noble Lord made it quite clear that the Supreme Court Rule Committee already has full power to deal with this point, and I hope that he will not insert a provision making it compulsory for the Rule Committee to take any line until the Rule Committee have had a chance of considering all the problems that are raised by this Bill.
Except in cases of contempt in face of a court, in which the practice is not regulated by rules and the contempt is punished without formal application, applications for attachment or committal differ according to whether the application is made in the Queen's Bench Division or in other of the High Court Divisions. In the Chancery Division the application is made by motion and in the Probate Divorce and Admiralty Division by summons to a Judge in court; but in the Queen's Bench Division (except in cases to which Order 59, Rule 26, applies) the application is made by summons to a Judge in chambers. As the noble Lord is aware, Order 59, Rule 26, applies to proceedings before the Divisional Court; secondly, to criminal proceedings and all proceedings in the Queen's Bench Division, except where the contempt is committed in facie curiœ or consists of disobedience to an order of the court; and thirdly, in proceedings in an inferior court.
In all these cases the procedure is the same as on application for an order of mandamus, so that where leave has been granted to apply for an attachment the application must be made by notice of motion to the Divisional Court. So far as contempt consisting of disobedience to an order is concerned, it is true that it is not easy at the present day to justify the distinction between the procedure in the Queen's Bench Division, on 1112 the one hand, and that in the other Divisions, on the other. Mr. Iwi drew attention to this distinction in a letter to the Economist in May, 1957, and the matter was considered by my noble and learned friend Lord Goddard when he was Lord Chief Justice with a view to inviting the Rule Committee to alter the rules so as to require that, except in cases where Order 59 applies, applications for attachment or commital should in all cases be dealt with by motion to a single Judge sitting in court. The matter was not proceeded with owing to the complicated nature of the distinction between attachment and committal, which is surrounded by historical anomalies.
It is clear, however, that the practice ought to be reconsidered in the light of the new approach which the Bill provides towards the whole of the law of contempt. But it would be undesirable, in my opinion, to accept Lord Chorley's new clause because, as indicated by Clause 3 of Lord Shawcross's Bill, there may be cases in which it would be undesirable to give full publicity to the proceedings on an application to attach or commit for contempt, and this applies to the other Divisions just as much as to the Queen's Bench Division. Indeed, in my view it is doubtful whether Lord Shawcross's Bill goes far enough, for there may well be cases similar to those mentioned in Clause 12 of the Bill, and in the speeches in Scott v. Scott, [1913] Appeal Cases—for example, cases affecting the interests of a mental patient or involving a secret process—where publicity would be undesirable and where the court should have power to sit in private.
Therefore, on the first part I hope that, on reflection, the noble Lord and those who are consulting him will agree that it is better that the Rule Committee should have complete discretion to reconsider the matter and come to the decision which they think is right. I would remind the noble Lord that on the Rule Committee there are not only the leading Judges of the various Divisions and other Judges, but members of the Bar and of the solicitors' branch. I can assure him that it is anything but a shelf for unpleasant problems. We are working extremely hard, and it is my hope that the rewriting of all the Rules, which is one of the problems on which I 1113 am particularly keen at the moment, will make great progress this year. So I assure the noble Lord that I shall see that the matter is thoroughly considered.
As regards the second limb of Lord Chorley's new clause, the position is that in cases before the Divisional Court of the Queen's Bench Division, to which Order 59, Rule 26, applies, anyone who wishes to be heard in opposition to the motion is entitled to be heard, whether or not he has been served with notice of the motion. The noble Lord will find that in Order 59, Rule 7. But as I indicated, Order 59, Rule 26, does not apply to proceedings in the Chancery Division, or to civil contempts or contempts in facie curiae committed in the Queen's Bench Division. The procedure in these cases is governed by Order 38, Rule 1, which provides that on any motion evidence may be given by affidavit, but the court may order the attendance of a person for cross-examination. It is true, therefore, that there is no absolute right in these cases for a person to give oral evidence, but it is not clear to me what objections to the present practice Lord Chorley has in mind, particularly as on an application for attachment for disobedience to an order the facts are usually not in dispute and any question which the person sought to be attached would normally wish to raise would probably go to mitigation rather than be a matter of evidence.
I want to make it quite clear to the noble Lord that, in my view, it is obvious that the procedure needs further examination by the Rule Committee. Again I give the noble Lord the undertaking that the whole procedure will be re-examined, after the Bill becomes law, in the light of the new provisions. I am sorry to have taken so long but I thought it would be useful to the noble Lord if I were to show the procedure in Hansard. I give him my personal undertaking that the matters will be considered. I would ask him to consider between this stage and the Report stage whether it would not be right to leave the Rule Committee unfettered in the matter.

§ LORD CHORLEY
I am most grateful to the noble and learned Viscount for the great care which he has taken over this problem. Perhaps I may ask him just one question. The first part of my 1114 Amendment was not really concerned to make it obligatory in all cases that the Rules should provide for hearing in public, and if that is the correct reading of the clause as it stands I quite agree that it ought to be withdrawn. It was intended to establish a principle from which the Rules might, for good reason, make exceptions. I quite agree—indeed, I think I made it clear that I agreed—that there should be cases where these matters should not be dealt with in public. Lord Shawcross dealt with one of them in his own Bill, and we were not in any way intending to depart from that; we felt that that was one of the matters which should be dealt with in the Rules.
I quite appreciate that these matters need looking at very carefully, and that they are, in fact, being carefully looked at at the present time. The noble and learned Viscount has referred to the great care which is being given at present to this problem. As one of my oldest friends at the Bar, one of the masters, has been very much mixed up with this matter, I have from time to time had the advantage of hearing about what is going on and have greatly appreciated the anxiety and care which is being taken over the matter. Therefore, I would ask your Lordships' permission to withdraw this Amendment, although I should like to consult further with my friends on this subject with a view to putting down something on slightly different lines on the next stage. I am grateful to the noble and learned Viscount for what he has said about paragraph (b). I had not myself appreciated that the present Rules go quite so far as they do.

§ Amendment, by leave, withdrawn.

§ Clause 14 agreed.

§ Clause 15.

§ Appeal in habeas corpus proceedings

§ 15.—(1) Subject to the provisions of this section, an appeal shall lie, in any proceedings upon application for habeas corpus, whether civil or criminal, against an order for the release of the person restrained as well as against the refusal of such an order.

§ 3.6 p.m.

§ LORD CHORLEY
moved, in subsection (1) after "lie" to insert "to the Court of Appeal". The noble Lord said: I rather think that this Amendment is concluded by what the noble 1115 and learned Viscount said in answer to an earlier Amendment of mine during the first phase of this Committee stage. I will move it formally, however, because I am not quite sure how far the provisions for appeal in these habeas corpus proceedings actually go under the clause as it at present stands. I should be most grateful if I could have the noble and learned Viscount's exposition on that matter. Your Lordships will remember that I was attempting to get the Court of Appeal substituted in connection with appeals from the Divisional Court, but the noble and learned Viscount was not sufficiently sympathetic to that proposal and I withdrew it. Of course, this Amendment concerns the same matter, and I think that probably the noble and learned Viscount will say that what he said then must be an answer to-day. But I should be grateful to him if he would give us an exposition of the arrangements as they will exist under Clause 15 of the Bill.

§ THE LORD CHANCELLOR
I wonder whether it would be convenient for us to have a discussion on the noble Lord's next Amendment, No. 15, at the same time, as they are cognate.

§ LORD CHORLEY
Yes. Amendments Nos. 14 and 15 go together. It would have been sensible of me to indicate that. They are all part of the same attempt. Possibly Amendment No. 15 carries the matter a little further. With your Lordships' permission, perhaps we could deal with Amendments Nos. 14 and 15 together, and then the noble and learned Viscount can explain the position to us.

§ Amendment moved— Page 9, line 44, after ("lie") insert ("to the Court of Appeal").—(Lord Chorley.)

§ THE LORD CHANCELLOR
The reason I asked the noble Lord whether he would agree, subject to the permission of the Lord Chairman, to our discussing these two Amendments together, was that the first of the Amendments would send appeals on criminal applications for habeas corpus from the Divisional Court to the Court of Appeal, and not direct to the House of Lords as proposed by Clause 1 of the Bill; and the effect of the second Amendment is to remove the restrictions occasioned by Clause 1 so that there would be a right of appeal 1116 from the Divisional Court to the Court of Appeal in every case without leave.
On the first Amendment, as the noble Lord has anticipated, I maintain my view that there seems to be no justification for channelling an appeal in a criminal matter to the Court of Appeal, who are not constituted with a view to hearing such matters and whose lists are already overburdened. But apart from that, speed and finality are important considerations in applications concerning the liberty of the subject; and the Amendment would insert an additional tier in the structure of appeals, for there would have to be a further appeal from the Court of Appeal to the House of Lords.
The arguments for or against allowing an appeal in criminal habeas corpus free of any restriction as to the general public importance of the point involved, as I frankly admit to the noble Lord, Lord Chorley, are more evenly balanced. On the one hand, the restriction does not seriously derogate from the principle generally adopted in the Bill, that there should always be one appeal as of right but that any further appeal thereafter should be confined to important legal issues; because I believe that the noble Lord, and also my noble and learned friend Lord Goddard, would agree that, in all but a few exceptional cases, the Divisional Court hearing an application for habeas corpus in a criminal matter are acting in a quasi-appellate capacity in scrutinising the decision or jurisdiction of an inferior court. Also, it would be unfortunate in our relations with foreign courts if extradition, or the surrender of fugitive offenders, were delayed by unmeritorious appeals.
On the other hand—and I believe this is the point which the noble Lord, Lord Chorley, wanted clarified—an appeal as of right already lies in civil application for habeas corpus; and there is a case for giving such a right of appeal from a decision which, on the face of it, at any rate, is that of a court sitting in first instance. At the same time, there must be no risk of overburdening the House of Lords by the volume of appeals. The noble Lord will remember what was said in the debate on Second Reading, and I do not want to repeat that to-day. The result of this is that there is therefore a case for taking further time to investigate fully the implications of a change 1117 in the direction desired. I shall do that, and I will undertake to let the noble Lord, Lord Chorley, know the outcome of my consideration in time to let him raise the point on the Report stage, if my view should be against him.
I believe there has been some confusion between the actual number of applications and the number of those who write to the court. I am glad to say that when people write informally to the court the letter is always considered, and in proper cases the matter is referred so that the point can be raised on legal advice. I understand that those with whom the noble Lord, Lord Chorley, was consulting had that distinction in mind: that although numerous letters were written, the number of applications was not so great as had been rather conveyed during the debate on Second Reading. I should like to assure the noble Lord that I have considered that point very carefully, and it is because of that that I should like a little more time to consider the matter and discuss it with the Lord Chief Justice and my colleagues in the House of Lords, so that I can form the most accurate view possible on the likelihood of congestion. I hope that the noble Lord will allow me that extra time and will not press his Amendment to-day. As I have said, I undertake to let him know in time to raise the matter on the Report stage if he should think that necessary.

§ LORD CHORLEY
Naturally, I am very gratified that the noble and learned Viscount is looking at this point so carefully, and has been induced, so to speak, to see that there is a difficulty here in relation to the difference which exists between civil and criminal cases. There is also the point which I made the other day and which is very much in the mind of the noble and learned Lord, Lord Shawcross. In this type of case, and also in the contempt type of case, the appeal is, in a sense, concerned not so much with a point of general public importance as with the question of whether it is desirable that the whole matter should be looked at by a higher tribunal; because the point of law is only one element in the situation in which contempt or habeas corpus is concerned. There are very often questions of broad policy involved, and I hope that, in looking at the matter, the noble and learned Viscount will also look at that side of it. I am very grateful 1118 to him and ask your Lordships' permission to withdraw my Amendment.

§ Amendment, by leave, withdrawn.

§ Clause 15 agreed to.

§ Clause 16 [Power of High Court to vary sentence on certiorari]:

§ 3.16 p.m.

§ LORD GODDARD
This Amendment is really a drafting Amendment. This subsection in the Bill as printed deals with the power of the High Court to examine and quash by an order of certiorari a sentence which has been passed but which was not authorised. The draftsman had inserted the words: may, instead of quashing the sentence, pass on the applicant… The High Court does not quash the sentence. It quashes the conviction and there has arisen, therefore, a point which I have often pressed: that this subsection should be amended so that the court, instead of quashing the conviction, should have power to vary the sentence. I understand that the Amendment is agreed by the noble and learned Viscount on the Woolsack. It is a formal Amendment but one which can give very useful power to the High Court.

§ Amendment moved— Page 10, line 18, leave out from first ("the") to ("any") in line 19 and insert ("conviction, amend it by substituting for the sentence passed").—(Lord Goddard.)

§ THE LORD CHANCELLOR
I accept the Amendment, and should like to express my gratitude to my noble and learned friend Lord Goddard for calling attention to the point.