§ 4.33 p.m.
§ Amendments reported according to Order.
§ Clause 1:
§ Right of Appeal
§ 1.—
§ (2) No appeal shall lie under this section except with the leave of the court below or of the House of Lords; and such leave shall not be granted unless it is certified by the court below that a point of law of general public importance is involved in the decision and it appears to that court or to the House of Lords, as the case may be, that the point is one which ought to be considered by that House.
§
LORD CHORLEY moved to add to subsection (2):
Provided that the foregoing provisions of this subsection shall not apply in relation to any appeal from a decision of a Divisional Court of the Queen's Bench Division in proceedings on a criminal application for habeas corpus.
§ The noble Lord said: My Lords, your Lordships will have observed that the subject matter of this Amendment is covered by an Amendment to Clause 15 in the name of the noble and learned Viscount on the Woolsack. My Amendment was put down before I appreciated that his had been put down. I have no doubt that he will think that his is better placed and possibly better drafted, and I do not feel very strongly about these matters. I should like to take this opportunity of thanking him, first, for meeting at any rate one of the points on which I have been arguing rather strenuously: that the qualifications in regard to the matter raising a point of law "of general public importance" should be removed from appeals in connection with matters of habeas corpus.
§ I have been fortunate on this occasion to have the assistance of a skilled draftsman in preparing my Amendments, so that I do not apologise for their amateurish quality—as I have had to do in the past when, in conjunction with my less skilled friends, I have moved Amendments to Bills in your Lordships' House. Indeed, on this occasion I rather feel that my Amendment is somewhat better drafted than that of the Government. In particular, I prefer 47 "proceedings on a criminal application" to the phrase "a criminal application". My noble and learned friend Lord Conesford is here and I am sure that he, on whom we have come to rely for lessons in the use of our native tongue, will agree with me that on this particular point, at any rate, my Amendment is possibly better drafted than the Government Amendment. I do not like the expression "criminal application". I am not at all sure that an application can be "criminal", but I suppose it is only a small point; and in order to have the views of the noble and learned Viscount I will formally move my Amendment.
§
Amendment moved—
Page 1, line 19, at end insert the said proviso.—(Lord Chorley.)
§ THE LORD CHANCELLOR (VISCOUNT KILMUIR)My Lords, I am grateful to the noble Lord, Lord Chorley, for his appreciation of the fact that we have met his point to a considerable extent; but the effect of the Amendment as drafted would be to give a right of appeal to the House of Lords from any decision of a Divisional Court of the Queen's Bench Division on a criminal application for habeas corpus free from the restrictions imposed by subsection (2), including even the need to obtain leave to appeal. This unrestricted right to appeal would be available to the prosecutor as well as to the applicant. Both sides would then be in a better position with regard to their right to appeal to the House of Lords than any other English litigant, for in all other cases, without exception, leave to appeal is necessary.
I do not believe that a case has been made for this far-reaching alteration in the law; and the argument as to the importance of the writ of habeas corpus is met by my Amendment to Clause 15 (Amendment No. 9). I believe that that goes as far as can reasonably be expected in the direction desired by the noble Lord, Lord Chorley. I think he will agree that I have tried very hard to pay the fullest attention to what has been said, and I hope that I have met the substance of the matter. For I believe that it would be wrong to ask the House of Lords to hear all appeals without the sieving done by the Appeal Committee, and I hope 48 that the noble Lord will not insist on it. Apart from that, if I may use the words of an old story, I should like to say that I realise his Amendments are beautifully cooked.
§ LORD CHORLEYMy Lords, I am not sure that all of your Lordships will quite appreciate the wit of the noble and learned Viscount's remark, but some of your Lordships, I am quite sure, appreciated it at its true value. I accept the substance of the noble and learned Viscount's argument, and beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 13:
§ Appeal in cases of contempt of court
§ (4) Subsections (2) to (4) of section one of this Act shall apply to an appeal to the House of Lords under this section as they apply to an appeal to that House under that section, except that so much of the said subsection (2) as restricts the grant of leave to appeal shall apply only where the decision of the court below is a decision on appeal to that court under this section.
§ THE LORD CHANCELLORMy Lords, perhaps I might discuss and put Amendments 2 and 3 together. These Amendments are almost entirely drafting. They result in a more logical arrangement of subsections (1) and (2) of Clause 13 and, in my view, introduce greater precision. I could go into the details, but I do not think your Lordships would want me to. If there is any point raised I shall be pleased to answer it. With your Lordships' consent, I will put these two Amendments together.
§ Amendments moved—
§ Page 8, line 9, leave out from beginning to ("shall") in line 11 and insert ("Subject to the provisions of this section an appeal shall lie under this section from any order or decision of a court in the exercise of jurisdiction to punish for contempt of court (including criminal contempt); and in relation to any such order or decision the provisions of this section")
§ Page 8, line 14, leave out from ("appeal") to ("and") in line 17 and insert ("under this section shall lie in any case at the instance of the defendant and, in the case of an application for committal or attachment, at the instance of the applicant").—(The Lord Chancellor.)
§ On Question, Amendments agreed to.
§ THE LORD CHANCELLORMy Lords, Amendments 4 and 5 go together and I will, with your Lordships' consent, 49 deal with them together. As subsection (2) of Clause 13 stands, appeals in contempt cases will lie from inferior courts to the Divisional Court of the Queen's Bench Division. The effect of the Amendments is to channel appeals from most of these courts, other than quarter sessions, to the Court of Appeal instead. The Amendments accord with the policy generally adopted in Clause 13: that appeals in cases of contempt should, so far as possible, follow the existing appeals procedure. I beg to move.
§ Amendments moved—
§ Page, 8, line 18, leave out ("other than a county court") and insert ("not referred to in the newt following paragraph")
§ Page 8, line 21, leave out from ("court") to ("having") in line 23 and insert ("or any other inferior court from which appeals generally lie to the Court of Appeal, and from an order or decision of the Chancery Court of a County Palatine, of a single judge of the High Court, or of any court").—(The Lord Chancellor.)
§ On Question, Amendments agreed to.
§ 4.43 p.m.
§ LORD CHORLEY moved in subsection (4), to leave out "(2) to (4)" and insert "(3) and (4)". The noble Lord said: My Lords, the next two Amendments are really designed to secure the same position in regard to contempt cases as that in relation to habeas corpus. It seems to quite a number of people that habeas corpus cases are really in a different category from ordinary criminal cases and the qualifications in Clause 1, which have been discussed so much, ought not to apply there any more than to habeas corpus. The noble and learned Viscount has indicated that he does not altogether accept this view. I feel that the argument about the sieve is not really very strong here because these contempt cases are not very common. I suppose that those that go any substantial distance are, on the whole, newspaper cases, and it may very well be that in regard to the newspaper cases there is a stronger argument for a qualification than in some other cases.
§ There is also the point which I have already made and which I am not quite sure the noble and learned Viscount has really dealt with: that in some, at any rate, of these contempt cases (possibly not the newspaper ones so much) it is not really a question of law, or the question of law is only partially the problem; it is 50 a question of getting new minds to work on a problem which is essentially one of discretion. In cases of that sort it has seemed to a number of people—and I know that my noble friend Lord Shaw-cross, who is still not well enough to be in his place this afternoon, feels very strongly on this point—that the qualification on the appeals in relation to contempt cases ought to be put on the same basis as that to which the noble and learned Viscount has agreed in the habeas corpus cases. I think that that is sufficient to explain the object of these Amendments, and I beg to move.
§
Amendment moved—
Page 8, line 38, leave out ("(2) to (4)") and insert ("(3) and (4)").—(Lord Chorley.)
§ THE LORD CHANCELLORMy Lords, the noble Lord has explained the purpose of the Amendments. There is the objection that they are defective in that they leave untouched lines 41 to 44 of subsection (4) of Clause 13, which qualify the circumstances in which subsection (2) of Clause 1 is to apply. But in any case, I think that the arguments that I used in relation to the noble Lord's last Amendment to Clause 1 apply even more strongly in the case of contempt. I do not think that there can be any justification for giving a right of appeal to the House of Lords without the need to obtain leave to appeal.
It might be convenient if I just said what the effect of the existing provision is, so that the noble Lord and his friends can consider it. The effect of Clause 13, as it stands, is that in contempt cases (a) there is one unrestricted right of appeal from an inferior court, a Chancery Palatine Court, a single Judge of the High Court (or person having the powers of a Judge of the High Court), with a further right of appeal to the House of Lords if the court appealed from certifies that a point of law of general public importance is involved in its decision and that court or the House of Lords gives leave to appeal; and (b) there is a right of appeal from a Divisional Court or the Court of Appeal dealing with a case of contempt at first instance, as well as from the Court of Criminal Appeal and the Courts-Martial Appeal Court, to the House of Lords with the leave of the Court below or that House.
51 I hope I have made it clear that there is this unrestricted right, and in the case of the Divisional Court, of course, the appellant has to get leave; but he has not got to show that it is a matter of general public importance where he is appealing from a decision of first instance. The principle, as I said, is to give one right of appeal which is either entirely unrestricted or, in the case of the House of Lords, requires leave from the first decision on the case; then, after that, in the case of a second appeal, the restrictions must apply. I feel that that gives all that can reasonably be required.
But I should like to put to the noble Lord and his friends, who I know have given so much thought to this question, that a multiplicity of appeals in contempt cases is undesirable; and, after full consideration (and I have been considering this matter for months), there does not appear to me to be any case for giving a second right of appeal except where a point of law of real importance is involved. The noble Lord was good enough to say on Committee stage—he has been very fair in his arguments—that he thought that more than one appeal in contempt cases will rarely be necessary, but he doubted whether I was right in laying so much stress on the newspaper cases. But in all cases the clause gives a general right of appeal against the finding of the court below; and, as it is proposed to be amended, it makes it clear that an appeal will lie at the instance of the defendant even where the court says that there has been a contempt but makes no order against him. That is the effect of one of my other Amendments. So, although I am aware that I have not given full satisfaction, I hope that the noble Lord will appreciate that I have tried to weigh his points, and I think he will agree that I have come a considerable way to meet them. I hope, therefore, that he will not press his Amendment to-day.
§ LORD CHORLEYMy Lords, I should like to say that, while I feel that we have not got 100 per cent. perfection in this Bill on this matter, we have obtained a very considerable improvement on the position as it exists in our law at present; and I am sure that every lawyer is very grateful to the noble and learned Viscount for what he has done in this 52 regard. I appreciate that in this world one can never, or very seldom, get 100 per cent. of what one is after, and in the circumstances I do not propose to press this matter any further. I beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ THE LORD CHANCELLORMy Lords, this, again, is mainly a drafting Amendment. There was some doubt as to whether subsection (5) carried out its purposes, and these doubts are allayed in the revised subsection which is now before your Lordships. I will willingly go into details, but I know that there is a lot of other Business before the House, and unless your Lordships ask for anything I will move with these words: I beg to move.
§ Amendment moved—
§
Page 9, line 1, leave out subsection (5) and insert—
("(5) In this section 'court' includes any tribunal or person having power to punish for contempt; and references in this section to an order or decision of a court in the exercise of jurisdiction to punish for contempt of court include references—
but do not include references to orders under section five of the Debtors Act, 1869, under any provision of the Magistrates' Courts Act, 1952, or under any provision of the County Courts Act, 1959, other than the sections referred to in paragraph (b) of this subsection and sections seventy-four and one hundred and ninety-five so far as they confer jurisdiction in respect of contempt of court.")—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Clause 15 [Appeal in habeas corpus proceedings]:
§ THE LORD CHANCELLORMy Lords, this is the Amendment which is really my substitute for Amendment No. 1, set down by the noble Lord, Lord Chorley. We discussed it when Amendment No. 1 was before the Committee. I think your Lordships are all acquainted with the point, and I beg to move.
§ Amendment moved—
§
Page 10, line 3, at end insert—
("() In relation to a decision of a Divisional Court on a criminal application for habeas corpus, section one of this Act shall have effect as if so much of subsection (2) as restricts the grant of leave to appeal were omitted.")—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Second Schedule [Modifications of Act in relation to Northern Ireland]:
§ THE LORD CHANCELLORMy Lords, this Amendment adds, as a further provision which is to apply to the Bill's application to Northern Ireland, a provision that any reference to an enactment is to include reference to an enactment of the Northern Irish Parliament My Lords, I beg to move.
§
Amendment moved—
Page 15, line 21, at end insert ("and any reference in this Act to any enactment shall be constructed as including references to an enactment of the Parliament of Northern Ireland").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLORMy Lords, might I ask your Lordships' permission to pass this Amendment with a verbal alteration to the Amendment as printed? That is to say, after "section six", about two-thirds of the way down the new subsection—"section six of the Debtors Act (Ireland), 1872"—there should be inserted "or section six A"? This Amendment is a Northern Irish adaptation consequential on the new subsection (5) of Clause 13, to which I have referred. I beg to move.
§ Amendment moved—
§ Page 17, leave out lines 41 to 45 and insert—
§ ("(2) For subsection (5) there shall be substituted the following subsection:—
§ '(5) in this section "court" includes any tribunal or person having power to punish for contempt; and references in this section to an order or decision of a court in the exercise of jurisdiction to punish for contempt include references—
- (a) to an order or decision of the High Court or a county court under any enactment enabling that court Ito deal with an offence as if it were contempt of court;
- (b) to an order or decision of a county count under section fifty-seven or section one hundred and forty-one of the County Courts Act (Northern Ireland), 1959,
§ On Question, Amendment agreed to.
§ THE LORD CHANCELLORMy Lords, Amendments Nos. 12, 13, 14 and 15 are drafting Amendments or consequential drafting. With your Lordships' approval, may I put them together and so save time? If any of your Lordships has any point on them, I shall of course be only too pleased to explain them more fully. I beg to move.
§ Amendments moved—
§ Page 18, line 7, leave out from ("to") to end of line 8 and insert ("prisoners or other persons suffering from mental illness or other mental disorder")
§ Page 18, line 7, leave out lines 46 to 48.
§ Fourth Schedule, page 21, line 9, at end insert—
| "45 & 46 Vict. c. 50. | The Municipal Corporations Act, 1882. | In section ninety-two, in subsection (6), the words from 'except' to the end of the subsection. |
| 47 & 48 Vict c. 70. | The Municipal Elections (Corrupt and Illegal Practices) Act, 1884. | In section twenty-eight, subsection (7).") |
§ Fourth Schedule, page 21,line 25, at end insert—
| ("12, 13 & 14 Geo. 6. c. 68. | The Representation of the People Act, 1949. | In section one hundred and fifteen, in subsection (6), the words from 'except' to the end of the subsection. |
| In section one hundred and forty-nine, subsection (10).")— |
§ —(The Lord Chancellor.)
§ On Question, Amendments agreed to.