HL Deb 17 November 1964 vol 261 cc535-46

4.21 p.m.

Debate resumed.

LORD SILKIN

My Lords, the temperature is now reduced to normal, so we might go back to the Administration of Justice Bill. I should like first of all to congratulate the noble and learned Lord who sits on the Woolsack on having introduced his first measure in such admirable terms. This is not an easy Bill to follow. I myself have tried to understand it, but until I heard the noble and learned Lord Chancellor's explanation of it I did not really get to the point of understanding what was the main purpose of this Bill.

It is, of course, unfortunate that when people want to understand what this Bill is about and try to interpret it they will not he able to use the noble and learned Lord's speech here in evidence. Certainly, if any question arises on the Bill it will stand or fall on the language of the Bill itself. I do not want to pursue this, because I said something of this kind in my speech last Wednesday in connection with the gracious Speech. But I hope that it will be possible to resolve this difficulty so that when one comes to try to interpret the Bill one will be able to get such help in interpreting it as may be available without having to try to understand the necessarily complicated and difficult language in which a Bill of this kind is phrased.

I understand that the main, though not the only, purpose of this Bill is to deal with a difficulty which has arisen over the years—namely, the difficulty of money in court depreciating in value to the detriment of the person on whose behalf the money has been placed. I am content to accept the fact that the noble and learned Lord who sits on the Woolsack believes that it will do so, that his predecessor accepts it also and that the Bill is based upon a Report of another noble and learned Lord who is now sitting in this Chamber. But I would repeat that if one tried to ascertain this for oneself by reading the Bill, one could never come to that conclusion.

As the noble and learned Lord, Lord Dilhorne, told us, there is not very much in the Bill that is controversial. I, too, find myself in some difficulty about Clause 19. I understand fully the objection that the noble and learned Lord, Lord Dilhorne, made to the clause, but I am not even sure that I come eventually to his conclusion. As I understand it, money may be paid into court on behalf of a widow either for herself alone or for herself and dependent children. Sometimes there is a separate award for the dependent children. As the clause stands, I think it operates in either case. The noble and learned Lord, Lord Dilhorne, eventually came to the conclusion that he could accept Clause 19, because the money paid into court to a widow with children also included a certain amount for the maintenance of the children. It may not always be so; the children may have been awarded separate amounts on their own account.

LORD DILHORNE

My Lords, I think it is the practice to award separate amounts. But it is also the practice in such cases to award a substantial part to the widow having regard to the fact that there are children as well.

LORD SILKIN

My Lords, I do not want to argue this too closely just now, but I did want to show what was my own difficulty. I think, as I am at present advised—and nobody wants to be dogmatic over matters of this kind—that I should prefer to take the risk and let the widow have the amount of money which she has been awarded in the same way as if she were a spinster or as if she had no children. But I think we could deal with that mere adequately on the Committee stage. There may be instances where a widow has been awarded a sum of money and has a child of one year of age, and she may have to wait for twenty years before she can utilise the money that has been awarded to her unless she can satisfy some official of the court that she needs the money for some good purpose. I am not sure that that is the right approach in the case of a woman who has been awarded a sum of money.

There is only one other thing that I should like to say and, again, it is on the form of the Bill. It is, of course, inevitable that where you provide for the repeal of a number of Statutes and for the amendment of others, the provisions for the amendments appear at first sight to be obscure to the person who reads them. For instance, I see that there are 24 amendments to the Land Clauses Act, 1845. I have no doubt that the Land Clauses Act, 1845, needs amending, but this strikes me as a very cumbersome and inconvenient way to do it. It almost amounts to a revision of the whole Act. To the legal practitioner it must be most inconvenient to have to look up, perhaps in a few years' time, the Administration of Justice Act, 1964, to find out what, if any, amendment has been made to the Land Clauses Act, 1845. There are an enormous number of Acts that have been repealed, and i t is difficult to know later on whether these Acts are in existence or not. I would ask the noble and learned Lord who sits on the Woolsack to give very special consideration to this question of repeals and amendments, and to see that they are done in a way which is fairly convenient for the practitioner both at the Bar and in my own branch of the profession.

It is not always easy to ascertain whether or not a particular provision now has legal force. There may be some way to overcome this. For instance, is it possible to reprint the Land Clauses Act, 1845, in the way in which it will be in force after this Bill becomes law? That may not be a practicable suggestion, but I would appeal to the noble and learned Lord who sits on the Woolsack to give some consideration to this problem because it is a problem for practitioners in both sides of the law. Subject to that, I am sure that this Bill is a good Bill. It is submitted under the most excellent auspices. It is almost a bipartisan Bill, and I hope that it will soon come into law.

4.30 p.m.

LORD CHORLEY

My Lords, to take up this debate after the excitement which we have just been having is rather like coming to the tapioca pudding course after a hot Madras curry in the early stage of a repast. Probably the noble and learned Lord, Lord Dilhorne, would not particularly welcome any congratulations from me for having got this Bill ready, but I certainly think he deserves congratulation.

LORD DILHORNE

My Lords, I am sorry the noble Lord thinks that. I should welcome any congratulations the noble Lord might give to me at any time.

LORD CHORLEY

This is the first time I have spoken in the same debate as the noble Lord, when I have had the pleasure to find him agreeing with me. My criticism of the noble and learned Lord and his Government would be that they took much too long to bring this in. The Pearson Committee were appointed early in 1957 and issued their Report about twelve months later, which was a very smart pace, and we had to wait five or six years for the Bill—and even then the noble and learned Lord's Government did not bring it in. We have brought it in, and I think that the noble and learned Lord who sits on the Woolsack is entitled to a great deal of congratulation for having taken the initiative and for having given us this Bill as our first piece of legislative work in this Session.

I would add my own personal appreciation of the work that was done by Sir Colin Pearson and his Committee. It was an expeditious piece of work. All those who have had the friendship of that distinguished lawyer and know well his command of details his judicious approach to these problems and particu- larly, perhaps, his sympathy for the underdog in litigation and in the world at large, would expect from any Committee over which he presided a Report of this value.

If I may, I would refer to one passage in the Report as symptomatic of his outlook. He deplored the continuance in some county courts of the inquiries into widows' means in open court. When I was a young barrister, that was pretty well universal, but during the intervening years it has become much less general. A judge usually has the parties visit his room. Especially in small country towns, where so many of these county courts are, an open inquiry is very embarrassing to litigants. I mention this point only as being symptomatic of the sympathetic outlook of this distinguished lawyer, which those who have known him since his early days at the Bar would expect to find in the Report of a Committee over which he presided.

It must have given great pleasure to the noble and learned Lord on the Woolsack to present even this Bill, because, although it does not make the radical reforms in the law which we are all expecting to have under his occupancy of the Woolsack, it makes important proposals. Two types of matters are dealt with. One copes with the inflation which has been allowed to run on in this area of legal administration far too long, and, as the noble and learned Lord pointed out, has had serious financial repercussions on many young people, and on older people as well.

It is significant that this should have come so late in the day. Trustees under the Trustee Acts, who were finding it very difficult to provide reasonable in- comes for their beneficiaries, were given power a number of years ago to begin investing in equities. The private sector comes first. Those who, in effect, are wards of the community have had to wait until now. Even after the Pearson Committee had worked so quickly to bring out this admirable Repot t, it will be six years before their recommendations are passed into law.

The Bill also introduces a number of reforms in the law which are desirable and long overdue. Obviously, these reforms should be brought before Par- liament and carefully and properly canvassed before they are passed into law and become operative. The first reform, which merely brings the legal position into line with the inflationary conditions that have grown up in this country over the last years, ought not to require a Pearson Committee every time. There ought to be some permanent machinery. Over the last few years Parliament has had Bill after Bill—to put up fines from 40s. to £10, or whatever it may be; to put up the limitation in an action against a shipowner whose ship has caused damage; to deal with all sorts of grievances arising from inflation, very often very late in the day, which have been quite obvious to everybody for a long time.

There ought to be some permanent machinery and I am very glad that the noble and learned Lord did glance at this problem, in passing, and suggested that, instead of having to wait for ten or fifteen years for another Pearson Committee and another Bill, some machinery might be established by which, if inflation goes on, from time to time the situation can be put right. Two or three years ago, in the Merchant Shipping Act, which brought £15 per ton of shipping into relation with the modern world, the Minister of Transport was given power to review the situation from time to time, and to establish a new ceiling when it was required. I hope that the noble and learned Lord will pursue this matter and evolve some machinery which will enable alterations to be made at the proper time.

This Bill not only deals with the particular difficulty of funds in court but also in Clause 20, which has been referred to by more than one speaker, brings the £50 minimum debt for a bankruptcy petition into relation with the requirements of the modern world. It is really quite ridiculous that a man can be made bankrupt on the basis of a £50 debt. That was no doubt all right at the time of Queen Victoria, but that this should continue until 1964 and be left to this particular Bill to put right is quite ridiculous. The threat of bankruptcy is a very strong form of blackmail, and it is very easy for a man to be in debt for £50. I doubt very much whether the sum of £100 provided in the Bill is high enough and there will be time in Committee stage to put this up to £200 or £300.

I think that everybody will agree that the proposal of the Pearson Committee, which has now been more widely extended in this Bill, that all these sums should be paid into one fund and the fund properly invested in the light of a modern investment policy, which has been used in all sorts of other spheres of economic activities over the last years, is a very proper one. I agree that the Public Trustee is the obvious person to be entrusted with the charge of this onerous and quite difficult public duty. No doubt, as one would expect, he will take expert advice in the investment of the fund, but what I am a little worried about is that he is not required to do so. I think that it might be well to tighten that up. It might be possible to give the noble and learned Lord, the Lord Chancellor, or some other Minister, the power to issue some sort of regulations or directions, specifying the sort of advice the Public Trustee should take.

I happen to be very much concerned with one of the largest national charities, which has funds going into millions of pounds and which was for a long time, like so many other charities, very much handicapped by the strait-waistcoat of the old trustee investment arrangements. Now, of course, we are much freer. But we have benefited enormously from the expert advice of one of the best investment firms in the City of Lot-Icon. I am sure that other noble Lords know much more about these matters than I do, but it is astonishing what a difference that can make to the prosperity of a national charity. If you get—as you can quite easily, because we have them in the organisation I am thinking about—really knowledgeable people from the City who come up and form a finance committee, they will discuss these matters with the investment experts in the City——

LORD DILHORNE

My Lords, I think the noble Lord may not be aware that the Public Trustee has a high-powered advisory committee on investment policy consisting of eminent people in the City.

LORD CHORLEY

My Lords, I am obliged to the noble and learned Lord for that intervention. I prefaced these observations with the remark that I had no doubt that the Public Trustee did take advice. What I was anxious about was that it should be stated in the Bill that he should be advised in this way. It is sometimes as well in an Act of Parliament not to rely entirely on the discretion of a particular public official.

The other matter on which I should like to say a word is the question of the control of widows' damages. I was glad to hear the noble and learned Lord on the Woolsack say that this was still, to him, a rather open question. It is obviously a difficult question. I hope that an Amendment will be put down on the Committee stage which will enable us to have a full debate on this problem. The noble and learned Lord the Lord Chancellor pointed out that the Law Society, representing the solicitors, were in favour of retaining the present arrangement. But, as the Pearson Committee points out, the Managing Clerks' Association, who presumably have the same sort of experience, as the solicitors themselves, or possibly even more, take the other view. It may be that some sort of compromise could be reached by which the widow without children would be prima facie entitled to have the money, unless for good reason the judge who handled the case directed that an investigation should be made and a possible qualification applied.

Many people who have had a good deal of experience of matters of this sort take the view that the mere fact that women are controlled in this way, while men are not, is in itself a factor in building up habits of mind which enable them to be cheated: that they would not be cheated so much if they were not coddled. That is obviously a point of view to which attention ought to be given. It must be very irksome and upsetting to many women to feel that they are being treated in this way, whereas men are not. After all, there are many men who are not capable of looking after substantial sums of money which they may obtain in actions at law; who are equally as feckless and unable to take sensible financial decisions as any woman.

I have often thought that it would be useful (perhaps the Lord Chancellor would consider this suggestion in connection with this law reform programme) if we introduced the status of spendthrift, which is known in a number of Continental systems—in France, for example. Where, from experience in the family and among friends, it is found that a man or woman is, without being non compos mentis, incapable of looking after his or her finances in a sensible and sound way, he or she can, in effect, be subjected to a certain amount of control under the status of a spendthrift. Such a system could be introduced here, both for men and women, and could perhaps be applied to an elderly widow who has had no experience. A spinster, after all, usually gains a certain amount of experience in looking after her own affairs. But the rather elderly woman who is likely to be involved in a case of this kind has often had no experience, because the husband has attended to all the financial matters; and therefore she is to a larger extent at the mercy of sharks and people who come round and try to sell her bankrupt businesses and that sort of thing.

There are obviously on both sides difficult and important problems to be solved before we finally reach a decision on this matter. If we could find some sort of compromise, going a little further towards the protection of these women than the present Bill goes, then I, for one, should be glad to help in working it out. I hope that when we come to the Committee stage we may be able to improve this Bill in the way I have indicated.

LORD CAWLEY

My Lords, before the noble and learned Lord the Lord Chancellor replies, I should like to ask a question. Clause 24 provides that Chancery registrars shall now be qualified to become Chancery masters. I wish to ask whether it is now to be primarily from the ranks of Chancery registrars that Chancery masters should be selected.

4.47 p.m.

THE LORD CHANCELLOR

My Lords, we have had an interesting short discussion, and I should like to say at the outset, in reply, how grateful I am to the noble and learned Lord, Lord Dilhorne, for the tribute he paid to the Public Trustee. I am sure that it is well deserved. I think the reason why it is not anticipated that this work will add anything substantial to the staff of the Public Trustee is because in the ordinary case the Public Trustee is a trustee of a particular settlement: he has to consider its terms and the position of the beneficiaries; and there may be other trustees as well. But what he will do here is to constitute and carefully supervise one or more unit trusts. As has been made plain, the only shareholder will be the Accountant General, and therefore he will not be concerned with matters of detail. As the noble and learned Lord, Lord Dilhorne, pointed out to the noble Lord, Lord Chorley, the Public Trustee does not act without advice. He has an honorary investment advisory committee, which includes stockbrokers, bankers and managers of investment trust companies, all of whom are well-known people of the highest standing in the City. So far as Clause 19 is concerned, we will certainly take into account the two points which the noble and learned Lord, Lord Dilhorne, was good enough to raise.

The noble Lord, Lord Silkin, also raised two points. The first was a point that he raised recently in your Lordships House—namely, that it seems unreasonable to expect a judge to understand what an Act is supposed to be doing when he is not told anything about it but is simply given the Act to read. I have some sympathy with that point of view. What we do, in this country is, of course, most unusual. In nearly every European system of law the first thing that happens when an Act of Parliament is passed is that the Government issues a White Paper explaining what the Act is intended to do, and the reasons which have led to its being passed. But here, when a judge has to construe an Act, this is the first thing at which he looks. The one thing he is not allowed to know is why the Act was passed, or what it is supposed to do. I have great sympathy with the noble Lord, Lord Silkin, who does not think that that is very sensible. In fact, sometimes the courts almost seem to take a delight in so construing an Act of Parliament as to produce exactly the opposite result to what we all know Parliament in fact intended. I have always thought that a construction of Acts of Parliament ought really to be a sort of partnership between Parliament and the courts—the object of the courts being so to construe an Act as to give effect to what Parliament intended.

It is almost accidental that we act as we do, because the old Preamble was like the sort of White Paper which most countries issue. Indeed, as your Lordships know, some of the Preambles of the old Acts are extremely interesting from an historical point of view. I remember the Preamble to the Act which deals with Gretna Green. It explains in detailed horror all the awful things that used to go on at Gretna Green, exactly what the blacksmith did, and how essential it was that this should be put a stop to. It is because we have no Preamble that the judges are no longer allowed to know what Parliament's real reason was.

Secondly, the noble Lord, Lord Silkin, raised the question of repeals, and the general way in which Acts can he amended and amended, and the difficulty which even lawyers have in finding out what the effect of some later amendments in other Acts are. There, again, personally I entirely agree with the noble Lord. As we know, the Statute Book is in the unfortunate position that amendments and amendments are made by later Acts, and to look at one subject only you may have to look at 60 different Acts of Parliament which amend and amend one another. It may be that ultimately we shall reach a stage in which we do not allow any Acts to be amended, but that when we want to amend an Act we repeal it and re-enact it with the proposed amendment. In that way we should always have one Act of Parliament, and one only, dealing with any one subject.

In answer to the noble Lord, Lord Chorley, may I point out that £50 is not raised to £100; it is raised to £250 which, I am told, is a little more, if anything, than a figure which corresponds to what £50 was.

LORD CHORLEY

Is that the same as presenting a petition in bankruptcy? I thought it was £100 in that case.

THE LORD CHANCELLOR

I was referring to the administration order. It may well be—and again, I sympathise with him when he expressed the view —that it should be possible to devise some way in which financial figures in Acts of Parliament may be varied other than by an Act of Parliament. I think I have suggested that, in effect, myself.

Then, with regard to the Chancery master or district registrar, the object 6f Clause 24 is to enable a Chancery or district registrar to be appointed a Chancery master, and a district or county court registrar to he appointed a taxing master. At the moment, eligibility of the appointment is limited, because under the present provisions he must be a practising solicitor of not less than ten years standing, and one of the difficulties is that a young man may become a district registrar before he has practised for that period. What is desired is to enlarge the qualifications so that a wider choice may be made. How the choice will be made must depend on the circumstances of the particular case.

I, too, hope, with the noble Lord, Lord Chorley, that an Amendment will be put down with regard to widows' damages, so that the matter may be discussed at the Committee stage. If somebody likes to put down a "spendthrift" Amendment of the nature indicated, there would, of course, he no objection. One could perhaps consider that at the same time. But this question of the widow's damages, which is obviously of importance to a substantial number of people, is not at all a political, and still less a Party political, point; it is a matter of opinion. It is just the sort of point on which two heads are better than one, and the sort of point on which it is unlikely that if it is considered by a substantial number of your Lordships in Committee, they would be wrong. I shall await to see what Amendments are put down and the discussion which will then ensue.

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