HL Deb 21 November 1963 vol 253 cc447-53

3.16 p.m.

THE LORD CHANCELLOR (LORD DILHORNE) rose to move to resolve, That on consideration of a Cause Lords may deliver their Opinions in writing. The noble and learned Lord said: My Lords, the Motion which stands in my name on the Order Paper will involve, if your Lordships agree to it, a departure from the traditional manner in which this House exercises the powers of the High Court of Parliament.

As your Lordships will be aware, the practice of your Lordships' House, when sitting as the final appellate tribunal for the United Kingdom, differs very little from the procedure that is followed when the House is disposing of its ordinary legislative business. In particular, it is the custom that every Lord hearing an appeal gives his reasons orally, in the form of a speech before the House, for allowing or dismissing that appeal, as the case may be. My judicial colleagues and I have, however, lately been considering whether it is right that this practice should continue.

The volume of litigation, and thus of appeals to this House, has been constantly increasing over the past few years, and this has made it necessary to examine what methods are open to your Lordships to ensure that appeals continue to be heard and disposed of as expeditiously as possible. Although there is naturally a certain fluctuation in the number of appeals which are brought before your Lordships each year, I find, upon examination, that, on an average, a total of three full weeks tends to be taken up each Session solely for the purpose of delivering judgments in this House. Every morning of the week before Whitsun this year, for example, was taken up in this way, with the result that those of your Lordships who were concerned in those appeals were unable to devote any of the time to other judicial work.

My legal colleagues and I have come to the conclusion that it would accelerate the administration of justice if the practice of delivering oral judgments in appeals to this House were the exception rather than the rule. If your Lordships agree to the present Motion, I envisage that the new scheme will work as follows. On the day fixed for delivery of judgments copies of the speeches will be made available to counsel who are appearing in the appeal at least one hour before they are delivered. I envisage that, as a general rule, the House will meet for delivery of judgments at 10.30 in the forenoon, and the oral judgments delivered will do no more than state that, for the reasons which are contained in the speeches of which copies are available, this House either dismisses or allows the appeal, as the case may be, and gives any consequential directions which may be necessary.

My Lords, I shall be arranging for copies of the speeches to be held available for purchase by the public from the Official Shorthand Writer. In addition to this, one copy of each of the speeches will be available for inspection by any member of the public who wishes to consult them, at the Judicial Office of your Lordships' House as soon as the judgments have been delivered.

I should particularly like to make it clear that the power to dispense with oral speeches will be no more than a discretionary one, and it will always be open to any of your Lordships, should he wish to do so in any case, to deliver his speech orally in the House, as in the past.

My Lords, the proposals which I put before your Lordships are not entirely novel, since those Members of this House who sit to hear appeals in the Judicial Committee of the Privy Council will know that it is the almost invariable practice of the Board there to deliver its advice in writing, no oral Opinion being read. Nevertheless, I am deeply conscious of the break with the tradition of your Lordships' House which is involved in my proposals, and my colleagues and I gave long and very careful thought to them before deciding to recommend this Motion to the House. We are satisfied, however, that not only will appeals be thereby disposed of more swiftly, but the dignity and the authority of your Lordships' House will in no way be impaired. My Lords, I beg to move.

Moved to resolve, That on the consideration of a Cause, Lords may deliver their Opinions in writing.—(The Lord Chancellor.)

3.20 p.m.

LORD SILKIN

My Lords, I am sure that the House will approve of any steps which can be taken to speed up the Judicial Business of your Lordships' House. It has become—I will not say a "public scandal", but at any rate the delay in receiving the decisions of your Lordships' House on matters which come to it in Judicial Business has been a matter of great public apprehension and is causing hardship in many cases. Any step that can be taken to expedite this business will be welcomed, and this new procedure looks as if it might help materially. There are one or two questions that I should like to ask the noble and learned Lord the Lord Chancellor about the way it will operate.

As I understand it, normally decisions will be given at half past ten o'clock in the morning, and if counsel appearing for the respective parties are to get copies at least an hour earlier, they will presumably have to be available at half past nine or earlier. This might impose some hardship on some counsel, who have to come a long distance and who normally are accustomed to appearing at half past ten. Moreover, in some cases, though probably not in a majority, there will be as many as five different Opinions, and some of them may be lengthy. Presumably they will be more lengthy because the case is a difficult one. Again, it would be rather difficult for counsel, within the time available, to absorb the contents of five Opinions. I imagine that it may be said that, in any event, there is not much that counsel can say about the Opinions. Nevertheless, if it is to be of real value for counsel to know what is being said, I think they ought to have ample time to digest the effects of an Opinion and that it should not be left to the last moment. Therefore, I wonder whether it would be possible somehow to give counsel rather longer notice and an opportunity to see the Opinions at a more convenient time than is suggested here. For instance, it might be possible for these judgments to be given at 2.30, so that counsel could have them in the morning, and have adequate time to study the various Opinions before they are actually presented

There is also the question of the litigant who appears in person. I presume that he, equally, will have the Opinions made available to him. He would need at least as long a time as counsel to digest the effects of the decision. I know of cases in criminal appeals where a decision has been given on the spot and the reasons for the decision were given much later. In particular, there was one case where the person was actually executed before the reasons for the decision of the House to dismiss his appeal were made known. I hope that that kind of thing will not happen in future, but, as I say, there is one case on record where that has happened.

Finally, I should be glad if the Lord Chancellor would explain in what circumstances he envisages that a noble and learned Lord would exercise his discretion to give his Opinion orally. I should have thought that if this new procedure is decided on it would be followed pretty universally, but perhaps the noble and learned Lord can say whether he has in mind any particular kind of case where an oral Opinion would be delivered, as against a written one. Subject to these points, I think that this is a very great improvement on our Judicial procedure.

LORD MANCROFT

My Lords, if this proposal is going to speed up the administration of justice, then, of course, we must acquiesce. I believe that the noble and learned Lord, the Lord Chancellor has made an unanswerable case. But I think that we ought to take note of the fact that this proposal is going to accentuate still further the divergence between your Lordships' House sitting in a Judicial capacity and your Lordships' House sitting in a political or Parliamentary capacity. I myself deplore this growing distinction. I agree that in this case it is inevitable, but we ought to take note of the fact that it is one more widening of the breach, which I feel is a pity.

LORD CHORLEY

My Lords, it seems to be that we might take advantage of this procedure to write out our speeches and hand them into the Hansard Reporter.

3.25 p.m.

LORD REID

My Lords, I should like to add a few words. I hope that those of us who support this change are not thought to be disrespectful of the traditions of your Lordships' House. Indeed, I think that this will be a rather more respectful method than has been adopted recently, because at the present moment the reading out of these speeches is a pure formality—and not a very edifying formality at that.

Your Lordships may be aware that, in practice, we all circulate our printed speeches long before the date of judgment and we all know what the others are going to say. We have all made up our minds how we are going to vote, and all that happens is that a speaker gets up and reads his Opinion as rapidly as possible (and I am afraid that I must plead guilty sometimes to rather gabbling my speeches), because, if we spoke at the same speed at which we speak when addressing the House as at present, I am afraid that we should take not only three weeks, but nearer six weeks, to deliver all our judgments. So I do not think that this new procedure will diminish in any way the traditions of the House.

May I add a few words about the need for this change? Your Lordships may be aware that in recent years additional criminal jurisdiction has been conferred on us; and, much more important than that, there is now Legal Aid, where the litigant can qualify for it, which, again, has added very substantially to our work. I personally welcome very warmly this provision of Legal Aid in House of Lords appeals. Not only has it proved to be an advantage to the litigants, but it has also proved to be of great public advantage, because a number of very important cases have come before us, in which the parties—sometimes both of them—have been legally aided. The cases have raised issues which it was very important should be decided and which might not have been decided for a very long time if we had to wait for some unassisted litigant to bring them before us.

I am glad that arrangements are to be made for prints to be available. I regard that as extremely important. The public are entitled to come and see what is being done by this House in the administration of justice, and if we are not to read out our speeches, they must be available—I hope at a nominal price —to anybody who wants them immediately after the decision, whether the people who want them are purely private individuals or members of the Press, and I very much hope that, when we proceed to put this procedure into operation, there will be no hitch of any kind about that.

Finally, my Lords, if I am not delaying the House, there is good reason for the optional provision. To begin with, it used to be the habit, certainly in the days of Lord Halsbury, half a century ago, to give judgment extempore at the end of an argument. That has not been done during the fifteen years that I have been a Member of your Lordships' House, but it is quite possible that in future there may be a case when noble and learned Lords who ate sitting may think that a desirable thing to do. Of course, we cannot do it when we are sitting in Committee. We can do it only when we are hearing an appeal sitting in this House, as we do whenever we can—that is to say, whenever we can get a full day and your Lordships do not wish to sit in a political capacity on that day. Although extempore judgments have never been given in the last fifteen years, I remember two occasions, when I was engaged as counsel in your Lordships' House—over 30 years ago, I am afraid—when that was in fact done. So it is not entirely archaic.

We cannot foresee what the effect of this change will be, but I trust that it will prevent the accumulation of any arrears. I can say that at the moment the position is not too bad, but it might easily get worse. Further than that, I very much hope that this will enable us to shorten materially the interval which at present normally elapses between the hearing of a case in the Court of Appeal and the hearing in this House. I think that the period is too long, but unless we do something of this kind I can see no possibility of shortening it.

LORD JESSEL

My Lords, as this procedure obviously admits the fact that there are considerable delays, will the noble and learned Lord the Lord Chancellor consider the possibility of advising Her Majesty to appoint additional Lords of Appeal in Ordinary so that retired Lords of Appeal will not be continually called upon to sit?

THE LORD CHANCELLOR

My Lords, that is another question, and one that I keep under consideration the whole time. Perhaps I may reply shortly to the various points which have been raised. The noble and learned Lord, Lord Reid, really replied to the last point put by the noble Lord, Lord Silkin, as to the need for preserving the power to deliver speeches giving reasons. The noble Lord, Lord Mancroft, thought that this new proposal would mean an increasing divergence between the procedure of this House in a Legislative capacity and its procedure in a Judicial capacity. I do not think there is much substance in that point, for the simple reason that the real difference here will he, as the noble and learned Lord, Lord Reid, pointed out, the difference between speeches being read fairly fast and prints of those speeches being circulated, but at the end the Motion being put that the Lords are "Content" or "Not Content" with a proposal that is made.

One point was raised by the noble Lord, Lord Silkin, to which I should refer, and that is the question of copies of Opinions being available to counsel. My experience is not so very long, but I have never known of an occasion where counsel have had any reason to say anything after the speeches giving the views of your Lordships have been delivered. I should have thought it was a considerable improvement that there should be available to them, if they want to see them, prints of the speeches at least an hour before the Sitting, rather than that they should merely listen to the speeches as they are read out fast. They will have plenty of time thereafter to consider at their leisure what is said.

I commend this proposal to your Lordships, because I think it will lead to the acceleration of the disposal of Judicial Business and, indeed, may make it unnecessary to follow the suggestion put forward by the noble Lord, Lord Jessel.

LORD KILLEARN

My Lords, before my noble and learned friend sits down—

SEVERAL NOBLE LORDS: Order, order!

LORD KILLEARN

I cannot raise a point from this Bench. I am sorry.

On Question, Resolution agreed to.