§ 4.30 p.m.
§ THE LORD CHANCELLOR (LORD GARDINER)My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD JESSEL in the Chair.]
§ Clauses 1 to 11 agreed to.
§ Clause 12 [Grant of certificate by trial judge]:
§
VISCOUNT DILHORNE moved Amendment No. 1:
Page 6, line 40, leave out ("decision") and insert ("final judgment").
§ The noble and learned Viscount said: I beg to move the Amendment standing in my name. In the hope that it may relieve anxieties in certain parts of the Committee, may I say that this is the only Amendment standing in my name which I propose to move, despite the large number that there are on the Order Paper. The reason why I am not moving them is that the Amendments tabled in the name of the noble and learned Lord the Lord Chancellor substantially meet to my satisfaction, and I think to the satisfaction of my noble friends, the questions which were raised during the Second Reading.
49§ I should like to thank the noble and learned Lord the Lord Chancellor for answering in correspondence one point on an earlier clause which has made it unnecessary for me to raise anything on that earlier clause; and also for the explanation which he sent me with regard to Part III of the Bill. I said that we should require a full explanation of Part III, but now that I have had such a full explanation I would not seek to occupy the time of the Committee by asking more on I hat point.
§ With regard to this Amendment, there is a small point which I think not wholly unimportant. It is this. Under this Part there will be what we lawyers call "leapfrog" proposals. Clause 12(1) provides that it shall apply, "Where the trial judge is satisfied". That seems to me to imply (particularly when you look at the definition of "trial judge"; a judge who is hearing the case and determining) that that determination will almost invariably end in judgment for one party or the other. The language here used is different. In line 40 you find a reference to "his decision in those proceedings"; and not to his "judgment" in those proceedings. It puzzles me to know why in this Bill (this is not the only place) despite the reference to the determination being by the trial judge or the commissioner appointed in lieu of a judge, the decision is the matter referred to and not the judgment.
§ I think that the Amendment which I have tabled is wrong in that I have suggested the words "final judgment". I think it ought to be "judgment" simpliciter. That would mean that the judgment given at the hearing would be subject to this "leapfrog" procedure. It would, as I understand it, rule out any "leapfrog" procedure in relation to interlocutory matters. I cannot help thinking that that is what is intended, but I am not at all clear; and I do not think it is very clear whether the words "decision in those proceedings" is of wider ambit than "judgment in those proceedings". If it is not "judgment" seems to me the preferable word to use. If you use the word "decision", it may cause some doubt.
§ I do not want to take up time pursuing this matter. I ask the noble and learned Lord the Lord Chancellor to look at it sympathetically. I can tell him that I ant not alone in feeling some 50 anxiety about the use of the word "decision" and the consequences that may ensue. It may be that he was thinking of a case where a demurrer was raised and that the decision was upon a point raised, say, upon the pleadings. I would apprehend that if the decision by a judge was that the statement of claim disclosed no cause of acion, that would be followed by judgment for the defendant. Then the "leapfrog" procedure would apply. If the judge did not take that course, the case would go on until judgment was given one way or another, and then again the "leapfrog" procedure might apply. I cannot see the need for the word "decision".
§ That is the only point I wish to raise. I do not know whether the noble and learned Lord the Lord Chancellor wishes to deal with it to-day, but I should be very content if he said that he would look at it. This is not meant to be a wrecking Amendment in any way. May I say "Thank you" to him for the trouble he has taken to meet the points of view expressed by me and by others during the Second Reading debate? I beg to move.
§ THE LORD CHANCELLORI think that there are really two separate points here. One is entirely a question of terminology and the other is the question whether interlocutory decisions should be excluded. On the question of terminology, one can argue about words for a long time. But regarding the words in the Bill, the word "decision" is used to refer to what the judge decides, upon which an order is drawn up. The word "judgment" is applied to that which in substance is usually a document, containing the reasons why he makes his decision. Because of that I suggest to the noble and learned Viscount that in line 40 on page 6 the word "decision" is right because that is what is referred to there. And so on page 7 in the second line:
…it is expedient that an appeal should lie from that decision…So in line 19;…a point of law of general public importance is involved in that decision…When we come to line 20 it,relates wholly or mainly to the construction…and has been fully argued in the proceedings and fully considered in the judgment…51 That is the place where he gives the reasons for his decision. The same thing, I suggest, applies in line 36, aperiod of fourteen days beginning with the date on which that judgment is given…If a judge says, "Well, my decision is so-and-so, and I shall give my reasons in my judgment at a later date", it is often impossible adequately to advise clients whether or not to appeal until you know the reasons for his decision. That is why that date is, I suggest, quite properly taken from the date of the judgment. That is on the technical question of which word is appropriate to be used.On the other question, it is not intended to exclude interlocutory decisions. As the noble and learned Viscount knows, in view of the opinions which he and other noble and learned Lords expressed on Second Reading, I had the advantage of discussing questions which arose with the other noble and learned Lords. I am sorry that the noble and learned Viscount was unable to be present. I think I am representing the general views properly if I say that it was generally felt that there was, in substance, a choice. Noble and learned Lords were apprehensive that there might be too many cases to which this procedure might be aplied and, broadly speaking, that that could be dealt with in one of two ways: either by making more strict the criteria or limiting the conditions governing the cases in question; or by leaving to the Appeal Committee of this House the last word as to whether in a particular case this procedure should he applied or not. I think the general feeling was—it is reflected in the Amendments which I have since put down—that there was no need to limit or restrict the cases further than they were already limited or restricted, provided that the last word was left with the Appeal Committee which my Amendments now do.
Of course, I quite agree that there would be few interlocutory cases in which a judge and the Appeal Committee itself would both think should be subject to this procedure. But there may be some (Donoghue v. Stevenson was a Scottish case) which were decided on a demurrer by way of interlocutory proceedings. The only one I can remember I was in myself; it was Michael Foot v. Lord 52 Kemsley, which also went to your Lordships' House, not as a case on the question whether a statement of claim disclosed a good cause of action but whether the defence constituted an arguable defence. In view of the decision of your Lordships' House, it never became necessary for the case to be heard. What the Court of Appeal, and subsequently your Lordships' House, were supposed to be considering was whether there was an arguable case. The Court of Appeal said that it was an arguable defence, and went on to say that as they had heard the law on both sides, it was unfortunate that they had to leave it to the trial judge. They might as well have said that it was a good defence. Your Lordships' House subsequently took the same course and expressed the same opinion.
Therefore, I should regret it if it were an object of this Amendment that those cases, though they may be few, should be deliberately excluded from the benefit of the "leapfrog" provisions, particularly having in mind that they are likely to be few and that this procedure will not he applied to them unless the judge is of the opinion that they should be and the Appeal Committee is of the same opinion. I am sorry that the noble and learned Viscount had no opportunity of discussing these matters with us but I understand that he had other engagements. I hope that having heard what I have said, and if the noble and learned Lords concur, he will consider withdrawing this Amendment.
§ VISCOUNT DILHORNEI am grateful to the noble and learned Lord for what he has said. I do not entirely agree on the interpretation he places on the word "judgment", because often there can be a judgment delivered, in the sense of giving the reasons, ending up with the order that judgment be entered for the plaintiff for £X, £Y or £Z. The judgment is in the form of an order. The word can be used in both senses. I have raised this point because it did not seem to me clear, from the language used and in particular the conjunction of the reference of the decision to the trial judge, whether it was intended to apply to appeals from interlocutory orders, which might be made by persons who in no circumstances could be regarded as trial judges. Perhaps the noble and learned Lord will look at that. I do not want to 53 take up time, but I think there is a difficulty between these two constructions.
I think that there would seldom be any "leapfrogging" in interlocutory proceedings. The noble and learned Lord referred to Donoghue v. Stevenson, which was a Scottish case. After the litigation came to this House, at the end of the day, when it went back for trial, the snail was not found in the ginger beer bottle and the question was whether the manufacturers would have been liable had the snail been there. That was an example which rather shows the danger of "leapfrogging", but I would not oppose that. I will gladly withdraw this Amendment, in the hope that the noble and learned Lord will look at the language of this subsection, because I think that the use of the words "trial judge" might lead to difficulties in the future.
§ LORD CHORLEYI want to underwrite what the noble and learned Viscount has just said about the expression "trial judge". It is a long time since I practised at the Bar, but at that time there were a certain number of interlocutory cases which decided matters of great importance, and though there might be an appeal to the judge who would uphold the master, it could hardly be said that he was the trial judge. The noble and learned Lord quoted the Scottish case of Donoghue v. Stevenson. If I put some of my students on to research, I think that we could find a few others. I think it would be unfortunate if on a matter of construction these cases were excluded from this procedure. If a wider form of words could be found between now and the next stage, it would be very helpful.
§ VISCOUNT DILHORNEI gave way to the noble Lord thinking that he was going to ask me a question. I would gladly give way to him at any time I could count on his supporting me.
§ LORD CHORLEYI did not think I should be entitled to speak if the noble and learned Viscount had already withdrawn his Amendment. I had to get in while there was a chance.
§ VISCOUNT DILHORNEI ask leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
54§ 4.46 p.m.
§
THE LORD CHANCELLOR moved Amendment No. 3:
Page 7, line I, leave out from ("expedient") to ("and") in line 2 and insert ("to enable an application to be made for leave to appeal under this Part of this Act ").
§
The noble and learned Lord said: This is in the nature of a paving Amendment for the new clause to be inserted after Clause 12. Under the Bill as drafted, the decision to allow a case to go directly to the House of Lords rests with the trial judge. If he certifies, first, that the relevant conditions are fulfilled; secondly, that it is expedient that an appeal should lie direct to the House of Lords and, thirdly, that all parties consent to the grant of a certificate, the case will by-pass the Court of Appeal and go direct to the House of Lords. The Evershed Committee, for reasons which they gave, thought that the trial judge was the person to determine, these things, and added:
there is no doubt that by so leaving it to the trial judge the greatest saving in costs is achieved. Moreover, the trial judge will necessarily be fully seized of all the facts and circumstances of the case and will therefore require no further or separate application to be made".
§ During the Second Reading debate a number of noble and learned Lords strongly urged that an application for a "leapfrog" certificate should be made to the Appeal Committee of the House of Lords instead of to the trial judge. Since the Second Reading debate there have been discussions with the Lords of Appeal which have made it possible for the Government to accept this suggestion. They agree that the final decision whether a case should go direct to the House of Lords should rest with the Appeal Committee, on the understanding that they would deal with the matter on the papers, without a hearing The trial judge would still have to give a certificate but it would simply show that in his view the case was a proper one in which an application might be made. The parties would be able to apply to the Appeal Committee accordingly and this Amendment effects the necessary alterations in Clause 12(1)(b). I beg to move.
§ LORD MORRIS OF BORTH-Y-GESTMay I raise one point with regard to this Amendment, only with the desire to help 55 in regard to the wording? May I take this opportunity of associating myself with what the noble and learned Viscount, Lord Dilhorne, said in expressing our gratitude to the noble and learned Lord the Lord Chancellor for giving such careful consideration to all the points that have been raised? The point that I wish to put forward in regard to paragraph (b) is purely in regard to the language, because I am in entire agreement with the line which the noble and learned Lord is proposing.
The trial judge would hear an application and would have to be seized of three matters. First,
that the relevant conditions are fulfilled in relation to his decision in those proceedings…that is in paragraph (a); second,that all the parties to the proceedings consent to the grant of a certificate under this section,…I think that these words, which appear in paragraph (c), are quite clear. But then the new paragraph (b) would read:that it is expedient to enable an application to be made for leave to appeal…The point I put for the consideration of the noble and learned Lord the Lord Chancellor is whether the trial judge would fully understand what he is asked to do under this new language. One judge may think, "I am asked to form a judgment as to whether I think it is expedient that the case should be heard by the House of Lords direct, assuming that the Appeal Committee approve." Another judge might think, under the present language, "All I am asked to do is just to be satisfied that it is expedient that an application should be made, without my applying my mind at all to the question whether I think it is expedient that an appeal should go direct to the House of Lords." It occurs to me that if the trial judge thought: "No, I do not think this is the sort of case that ought to go to the House of Lords", that might be an end of the matter.I am not quite sure from the present language whether the intention is that the trial judge should still give his personal consideration to the question of whether it is expedient that there should be "leapfrogging" under paragraph (b), or whether all he has to consider under paragraph (b), in the new language, is 56 whether it is reasonable to let the parties ask the House of Lords: because he might say: "Well. conditions (a) and (b) are satisfied, and if both parties want to apply to the House of Lords, by all means let them apply." I only put that point for the consideration of the Lord Chancellor, lest there be any room for doubt. If there is no room for doubt, I am only too happy.
§ THE LORD CHANCELLORThere is no difference between us as to what is intended. If the trial judge thinks it is a case for granting leave, then that is that. It is intended that he shall give a certificate only if he is satisfied that the relevant conditions apply; that all parties consent and that it is expedient that "leapfrogging" should apply and not merely that there should be application for leave to appeal. I should like to consider between now and the Report stage whether there is any doubt—and if the noble and learned Lord, Lord Morris of Borth-y-Gest, feels that there is some doubt, I feel that there must be. I will consider the wording before the Report stage, and perhaps propose a further Amendment if I think it necessary to do so.
§ On Question, Amendment agreed to.
§
THE LORD CHANCELLOR moved Amendment No. 4:
Page 7, line 16, at beginning insert ("Subject to any Order in Council made under the following provisions of this section.").
§ The noble and learned Lord said: It may be convenient to consider with this Amendment Amendment No. 8. The purpose of both Amendments is to enable alterations to be made by Order in Council in the categories of points of law which must be involved in the trial judge's decision in order to fulfil the relevant conditions. As drafted, the Bill requires the point of law to relate wholly or mainly to the construction of a statutory provision or to be one covered by a previous decision. These provisions were recommended by the Evershed Committee (in paragraph 503 of their Report) as a first experimental step which should be reviewed after a period of three to five years. During the Second Reading debate it was suggested. notably by the noble and learned Viscount. Lord Dilhorne, and by the noble and learned Lord, Lord Denning, that the Bill was 57 drawn too widely and would let in a number of cases which were not suitable to go direct to the House of Lords.
§ As I have said, this point has since received consideration. We all recognise, I think, that this matter should be experimental. If, as the Government now propose, the Appeal Committee of your Lordships' House is given the final word, that Committee will be able to prevent any unsuitable cases from going direct to your Lordships' House. But experience may show that the categories of points of law in respect of which a leapfrog application can be made have been drawn too widely or too narrowly. It may be found, for example, that the Appeal Committee is being overburdened with applications to leapfrog in cases in which the point of law of general public importance is only a minor issue. It may, on the other hand, be found that the scheme is too restrictive, and that it would be desirable to extend it to points of law on common form contracts of insurance, bills of lading and such like.
§ In order to make it unnecessary to come back to Parliament for the scheme to be altered, the Amendments enable alterations in paragraphs (a) and (b) of Clause 12(3) to be made by Order in Council, subject to the Negative Resolution procedure. As these paragraphs merely define the categories of points of law of general public importance which must be involved in the trial judge's decision, it will not he possible for an Order in Council to bring within the scheme decisions which do not involve such points. I beg to move.
§ LORD WILBERFORCEMay I say a word on this Amendment, because it may have originated, in part, from a suggestion which I took the liberty of forwarding in writing to the noble and learned Lord the Lord Chancellor after the Second Reading. Personally, I am greatly obliged to the Lord Chancellor for its acceptance, at any rate in part. The only observation I would make at this stage is this. I wonder whether the power to alter by Order in Council which appears in Amendment No. 8 is not a little too narrowly drawn and whether one might not benefit from making it a little wider. As at present drawn, if noble Lords will look at Amendment No. 8 they will see that all that it does is to enable amend 58 ments to be made in Clause 12(3)(a) and (b), either by amending those or adding fresh clauses: in other words, to tinker about, if I may be allowed to use that expression, with the relevant conditions. That, I think, is very useful.
The only thing I am wondering about is whether it might not be more useful if the power to amend by Order in Council applied to the mechanism for obtaining leave to appeal to the House of Lords, the details of which at present appear in Amendment No. 10. There is a certain amount of detail there that has been introduced since the Second Reading. I should have thought that it fell within the expression "experimental" as used in the Second Reading debate. Experience may show that some of the conditions and regulations there may be worth changing, and it would be simpler to do it by Order in Council rather than by a fresh Act of Parliament. I am not moving any Amendment. I am grateful to the extent to which the Order in Council procedure has been applied, but I just ask whether it might not be still more usefully extended in the direction I have suggested.
§ LORD DENNINGSome of us were nervous about the width of subsection (3)(a), or, in the earlier part, whether a point of general public importance was involved. If there is power, or if lower can be given, to amend it by Order in Council, I think that may meet the objections which we had before. It is unusual procedure, I believe, to have an Act of Parliament amended by Order in Council in this way, but perhaps in these exceptional circumstances it may be desirable so to do.
§ LORD CHORLEYThe noble and learned Lord, Lord Denning, has just commented on this unusual procedure. It seems to me that it is a very valuable introduction which might be extended to other areas. Everybody knows how difficult it is to get a new Bill through Parliament. The noble and learned Lord the Lord Chancellor has been remarkably successful during his incumbency of his office, and a tremendous amount law reform has taken place for which many of us have been hoping for a long time. If there were some sort of procedure, such as the new procedure which is brought in here, which could make 59 matters more flexible and easy, I think it should be welcomed. I hope that this method will be borne in mind in connection with similar projects.
§ THE LORD CHANCELLORI was grateful to the noble and learned Lord, Lord Wilberforce, for his suggestion. It is possible, I suppose, that Parliament might have gone further. But Parliament is a little jealous of, in effect, allowing Ministers to alter Acts of Parliament by Orders subject only to the Negative Resolution procedure, and I thought that probably this would be as far as I should be allowed to go. But, encouraged by what your Lordships have said, I should like to think this over again before the next stage of the Bill.
§ On Question, Amendment agreed to.
§ LORD AIREDALEAmendment No. 7 is a purely drafting Amendment, put forward in the interests of good grammar. I beg to move.
§
Amendment moved—
Page 7, line 26, after ("and") insert ("which").—(Lord Airedale.)
§ THE LORD CHANCELLORWe are now in grammatical difficulties again. I must say that when I first looked at this Amendment I thought that the noble Lord, Lord Airedale, was right. But, as we all know, questions of construction and grammar are not all that easy. The Amendment is, I suppose, designed either to improve the clarity of Clause 12(3)(b) or to correct what the proposer regards as a grammatical error in it. It is not justified on either ground. The subject of the verb "was fully considered" in line 26 is "that point of law" in line 19. The relevant conditions are that the decision involves a point of law of general public importance that "that point of law" (a) relates to construction et cetera or (b) is one covered by a previous decision and was fully considered in the previous proceedings. Paragraph (b) is therefore grammatically correct and unambiguous. If the word "which" were inserted before "was fully considered", it would not improve the grammar and it might make the paragraph ambiguous. There might be a doubt which noun was the antecedent of "which"; that is to say, whether it was the point of law which must have been 60 fully considered or the previous decision of the Court of Appeal or the House of Lords which must have been fully considered. Therefore, I would suggest that the Amendment is not necessary. The sentence is grammatically correct as it stands, and if you simply put in the word "which" it may itself raise a doubt which is not there as the sentence now stands. I hope that, with that explanation, the noble Lord may be prepared to reconsider this matter.
§ LORD AIREDALEI entirely accept what the noble and learned Lord the Lord Chancellor says. I think the difficulty is simply the way in which the wording is set out on the printed page. If line 26 stopped at the word "proceedings", and the subsequent words started afresh on a new line, that would make the sentence perfectly easy to understand. It is the fact that line 26 does not end at the word "proceedings" but runs on which causes the difficulty here. I hope that perhaps that may be considered before the next stage. In the meantime, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ THE LORD CHANCELLORI have already addressed your Lordships on Amendment No. 8. I beg to move.
§ Amendment moved—
§
Page 7, line 39, at end insert—
("( ) Her Majesty may by Order in Council amend subsection (3) of this section by altering, deleting, or substituting one or more new paragraphs for, either or both of paragraphs (a) and (b) of that subsection, or by adding one or more further paragraphs.
( ) Any Order in Council made under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.")—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ On Question, Whether Clause 12, as amended, shall stand part of the Bill?
§ LORD CONESFORDBefore we pass from this important clause on which agreement has now been happily reached between the Law Lords and the noble and learned Lord the Lord Chancellor, on which I heartily congratulate him, I should like to remind the Committee of a great judgment of the Court of Appeal from which this reform springs. It was I given in 1933 in an appeal by the Inland 61 Revenue and is reported under the title Board of Inland Revenue v. Haddock in Uncommon Law, which has an introduction by the late Lord Atkin. May I cite a few sentences from that celebrated judgment of the then Master of the Rolls:
The point appears to be short and simple, but this court does not intend to consider it…Whatever our decision, it is certain that an indignant appeal against it will be directed to the supreme tribunal, the House of Lords, since the resources of the Crown are as inexhaustible as its impudence, and the blood of Mr. Haddock is evidently up".From a subsequent part of the judgment, I should like to read a few further words:At the end of certain hotly contested cases, decided only by a majority in both the Court of Appeal and the House of Lords, the weary and impoverished litigant, adding up the number of judges who have voted for and against him in the various courts, has found that, per capita, His Majesty's judges were equally divided on the point in dispute. It is not surprising, then, if many appellants present themselves to that House in a reckless or at least a speculative mood, as a gambler who has backed a succession of losers still hopes to recover all by a wild wager on the final race. The Court of Appeal, to one in this mood, must represent a minor handicap taking place at 3.30. It is not desirable that our great tribunals be regarded in this light: but at present it is inevitable.Later he goes on to foreshadow in essence the reform that is now being made:For all these reasons we recommend that either this Court or the House of Lords (as a Court of Appeal) be abolished; or, in the alternative, that the House of Lords retains its appellate functions as a specialist body for the settlement of questions of exceptional difficulty, such cases to be referred to them upon the order of a High Court judge. As for the present case, we decline to discuss it. It will go to the House of Lords in any event, so let it go at once.As the Explanatory Memorandum to this Bill reminds us, this Part of this Bill is derived from the Evershed Committee's Report. The learned editor of the report I have just read, Alan Herbert, was a member of the Evershed Committee and that is no doubt how this reform comes into being. As on many other occasions, "A.P.H." was 35 years in advance of his time.Clause 12, as amended, agreed to.
§ 5.8 p.m.
§ THE LORD CHANCELLOR moved Amendment No. 10:
§ After Clause 12, insert the following new clause:
§
Leave to appeal to House of Lords
§ The noble and learned Lord said: This is the new clause which provides for an application to be made to the Appeal Committee for leave to appeal directly to the House of Lords where the trial judge has given a leapfrog "certificate. It also ensures that the matter is dealt with cheaply, informally and expeditiously, so as to remove the objections which the Evershed Committee found to applications to the House itself. Subsection (1) provides that where the trial 63 judge has granted a "leapfrog" certificate, either party may, within one month or such extended time as the House of Lords may allow, apply to the House for leave under subsection (2). The period of one month is the same as that prescribed by Standing Order II for applications for leave to appeal from the Court of Appeal to your Lordships' House. It is clearly desirable that some time limit should be laid down so that the parties may know their position. The subsection enables either party to apply for leave, because, although the application would normally be made by the would-be appellant, the other party might also wish to ensure that, in the event of an appeal, the case would go direct to your Lordships' House.
§ Subsection (2) enables the House, on an application under subsection (1), to grant leave for an appeal to be brought directly to the House if it considers it expedient to do so. The Appeal Committee will thus have a complete discretion to refuse an application in an unsuitable case. Subsection (3) requires applications to be determined without a hearing. An application for leave to appeal from the Court of Appeal to your Lordships' House is not cheap. The parties are always represented, or are usually represented, on the application; it is never decided on the documents alone. The Appeal Committee sit only when Lords of Appeal can be spared from the ordinary judicial business. This means there is a delay, usually of one or two months and sometimes considerably longer, before an application for leave to appeal can be heard. It is essential, therefore, that special arrangements should be made for the hearing of "leapfrog applications. The Bill provides for them to be determined without a hearing. The intention is that the applicant should be required by a Standing Order to lodge only the pleadings and the trial judge's judgment and certificate, with the requisite number of copies. The Appeal Committee would then deal with the application on the documents and its decision would be communicated in due course to the applicants.
§ Subsection (4) provides for "leapfrog" applications to be determined by a Committee of the House of Lords consisting 64 of three Lords of Appeal, and for the decision of the Committee to be taken on behalf of the House so that the House does not have to meet formally to receive the Committee's reports. This is the procedure followed in the case of applications under Section 1 of the Administration of Justice Act 1960 for leave to appeal to your Lordships' House in a criminal matter, and the applications would, like an application under that Act, be determined by the Appeal Committee.
§ Subsection (5) prevents any appeal being brought to the Court of Appeal after the trial judge has granted a "leapfrog" certificate until the time for applying to the Appeal Committee for leave to appeal directly to the House of Lords has expired or until any application lodged within that time has been determined. A provision to this effect is necessary because otherwise the unsuccessful party who will have consented to the granting of a "leapfrog" certificate might change his mind and bring his appeal to the Court of Appeal. The successful party might then have to fight appeals in two courts when he would have preferred to go direct to the House of Lords. I beg to move.
§ LORD PARKER OF WADDINGTONI rise merely to thank the noble and learned Lord the Lord Chancellor for moving this Amendment. I am afraid that 1 was not able to be here at Second Reading, but had I been here I should have been constrained to join some of your Lordships in voicing alarm at the idea of leaving the matter to the discretion of the trial judge. Judges vary enormously in their approach to matters, and when both parties consent and desire to appeal direct to the House of Lords it may be difficult for the trial judge to avoid granting the certificate; and under the Bill as it then stood the case would automatically not have gone to the Court of Appeal but direct to your Lordships. An important practical question would then arise that your Lordships' House, in its Judicial capacity, might have more cases thrust upon it than it wanted. Indeed, some people might be anxious to adopt this procedure in order, as it were, to "jump the queue of cases set down for hearing in the House of Lords. It seemed to me then, it seems to me now, that by far the best 65 way would be to leave it under the control of your Lordships, provided that that could be done without unnecessary expense. This Amendment fully meets the points that certainly I, and others, had in mind, and I am truly grateful to the noble and learned Lord.
§ LORD DENNINGI should like to add one word of gratitude to the noble arid learned Lord the Lord Chancellor for this Amendment, particularly noticing that not only will the House of Lords keep complete control but also that it can be done most cheaply and expeditiously. In a way it will be following the precedent of the Supreme Court of the United States of America because there is to be no hearing: an application will be considered simply on the papers and can be dealt with at once, which will be a great advantage. Furthermore, the House itself can keep control of the number of cases and can see that only suitable cases take advantage of this procedure. This Amendment meets all our wishes, and I am most grateful for it.
§ LORD CHORLEYAs the only representative present of the law teaching profession, as opposed to those who make the law in the Court of Appeal and in this House, I should like to say a few words about this Amendment. It was suggested by the noble Lord, Lord Goodman (who I am sorry to see is not with us this afternoon), that it was agreed by all lawyers that there is no merit in having two appeal procedures. When he said that I could hardly believe my ears. We are accustomed to having interesting points of view put forward by the noble Lord, Lord Goodman, and I often find myself in agreement with them but this view was so extreme that I could not believe I had caught his words correctly. However, here it is, in the OFFICIAL REPORT.
The problem of whether there should be only one appeal is an old one, and one on which there can properly be two views. Right hack at the time of the great Judicature Act for a short time one appeal system was actually established by Act of Parliament, but there was such a strong feeling that it was not satisfactory that within a short time it was reversed, as indeed I pointed out to the noble Lord, 66 Lord Goodman, who rather brushed me aside. Academic lawyers at least of the eminence of the noble Lord, Lord Goodman, have asked me to make it clear that we attach great importance o the two-tier system of judgments, because it is in that way that the law is effectively and properly made.
The attitude of the noble Lord, Lord Goodman, towards this—and it is a proper one—is that a tremendous amount of money is spent in this rather elaborate procedure, and from the point of view of a solicitor who has to advise clients that is a matter which properly ought always to be in his mind. But in the university law schools we are greatly concerned with getting a really well argued series of legal rules, not only so that we can teach them to our students but so that they can be effectively applied in practice in the courts. It is valuable to have a case well argued out in the Court of Appeal and for it then to go through another similar process, because frequently a really strong Court of Appeal may overlook a point which comes out on the second appeal in your Lordships' House. It is true that it is unfair that the expense should have to be borne by the litigant, but getting a first-class system of law is more important than saving a substantial sum of money.
I, and some of my colleagues in the law schools, were worried about certain weaknesses in the proposal in this Bill, which invents what I think we shall agree is a sensible system of ensuring that there shall still be a possibility of a discussion in the Court of Appeal, while at the same time avoiding expense when the case, at the lowest level, is already covered by some decision which is binding on the Court of Appeal and can be overruled only in your Lordships' i4ouse. The weakness in it, as the nob: e and learned Lord, the Lord Chief Justice, has pointed out—and it was pointed out on Second Reading—has now been overcome. I am quite sure this solution will be welcomed, not only by the members of the Appellate tribunal here this afternoon but also in the law schools, where, after all, a good deal of law is, in a sense, created in advance of its coming before the judicial tribunals of the country. I felt that I ought to intervene in order to make this matter clear from the point 67 of view of myself and many of my colleagues.
§ On Question, Amendment agreed to.
§ Clause 13 [Effect of certificate under s. 12]:
§ THE LORD CHANCELLOR moved Amendment No. 13:
§ Leave out Clause 13 and insert the following new clause:
§ Appeal where leave granted
§ ". In relation to any appeal which lies to the House of Lords by virtue of subsection (2) of section (Leave to appeal to House of Lords) of this Act—
- (a) section 4 of the Appellate Jurisdiction Act 1876 (which provides for the bringing of appeals to the House of Lords by way of petition),
- (b) section 5 of that Act (which regulates the composition of the House for the hearing and determination of appeals), and
- (c) except in so far as those orders otherwise provide, any orders of the House of Lords made with respect to the matters specified in section 11 of that Act (which relates to the procedure on appeals),
§ The noble and learned Lord said: This is a new clause, substantially the same as Clause 13(2) in the Bill but with modifications necessitated by the proposed new provisions for leave to appeal directly to the House of Lords. Most of it is still the same. I beg to move.
§ On Question, Amendment agreed to.
§ Clauses 14 to 18 agreed to.
§ Clause 19 [Orders for interim payment]:
§ 5.20 p.m.
§
VISCOUNT COLVILLE OF CULROSS moved Amendment No. 14:
Page 12, line 18, leave out ("and")
§ The noble Viscount said: The Committee may remember that on the Second Reading debate I raised the question of the powers of the Lands Tribunal to order an interim payment in the case of a disputed figure for compensation in compulsory purchase, either the sum itself or one of the subsidiary sums which arises under disturbance or injurious affection. The noble and learned Lord the Lord Chancellor said that this was not a matter for his Department but for another one—I think 68 it is probably the Department for which the noble Lord, Lord Kennet, is the spokesman in this House. The fact remains that the noble and learned Lord is the Minister in charge of making rules for the Lands Tribunal, and if any rules were to be made which were cognate to the ones being made for the High Court and County Courts, under Clause 13, they would be made for the Lands Tribunal by the noble and learned Lord.
§ Surprisingly enough, the four Amendments down in my name on Clause 19 are meant to deal with the powers to make rules to give interim payments of compensation in these compulsory purchase cases. I think this matter is extremely obscure, and I may have drafted it wrongly, but I hope that the noble and learned Lord sees what I am trying to get at. I do not think there is much I can add to what I said on Second Reading. In the recommendations which led to the provisions in this clause itself in the courts it was made clear that sometimes these things are perfectly plain, that money would have to be paid, but that it takes quite a long time for a final decision to be reached. Exactly the same thing happens in the Lands Tribunal, except that it is almost certain there that money is going to be paid. How much is in dispute but some money will certainly have to be paid. Therefore I should have thought this is a very parallel situation to what the Bill itself covers.
§ The Lands Tribunal is subject to the same hazards on time as any other court, because a disputed case can go to the Court of Appeal and to the House of Lords. Not until all that is done will a plaintiff know whether or not the full compensation he is claiming is in fact recoverable. Equally, it may take a very long time to get the case on in the first place, and this may not necessarily be solely the fault of the claimant, who may, meanwhile, have lost his property because it has already been taken under a notice of entry. He might find it very difficult to raise the money to go anywhere else. It is perfectly true that he will get interest on the money as from the date when the property was taken, but that does not help him to find the money to move elsewhere meanwhile. Many people who are the unfortunate victims of compulsory purchase would like to do their best to carry on, if they are in business, with the sort 69 of business they were in before. They would like new premises. If they cannot get the money it may be very difficult for them to do so, and this is very likely to increase the compensation payable, because instead of getting the compensation for a fairly simple move from one premises to another, the acquiring authority may have to pay for total extinction of that business, which is a much more expensive matter.
§ I thought that as we are experimenting under Clause 19 in this field, and as the noble and learned Lord is the person to make the rules, it was worth my while to put down these Amendments to see whether he might consider this as something now worth exploring. There is no necessity to make the rules under this Amendment. It is merely an empowering provision. It may be that if the noble and learned Lord wishes to discuss the matter further with the Minister of Housing and Local Government he will not make the rules yet. But we shall not have another opportunity such as this Bill in a hurry for Parliament to give the noble and learned Lord these powers, and I suggest that we should take it now. I beg to move.
§ THE LORD CHANCELLORThe noble Viscount will no doubt agree that it is convenient to take Amendments Nos. 14, 15, 16, 17 and 28 altogether. When the noble Viscount raised this matter on Second Reading, I said that this looked more like a planning law than an administration of justice matter, but I said that I would go into it. There is at present no statutory basis for the making of advance payments of compensation for compulsory purchase. In general, compensation is paid when the conveyance of the land has been completed and agreement has been reached on the amount of compensation. Acquiring authorities can, however, make advance payments in appropriate cases. The extent to which local authorities do this is not known; but the Ministry of Transport regularly make advance payments of 90 per cent. of the amount agreed (or found by the District Valuer) in certain circumstances when they are requested to do so by the owner. These are (a), if entry is taken before completion; and (b), if the claimant needs the money to reinstate himself.
70 The question of advance payments of compensation was discussed during the proceedings on the Town and Country Planning Bill. The noble Viscount will find that discussion in the OFFICAL REPORT of July 8, cols. 730 to 731, and July 29, cols. 133 to 136. The noble Lord, Lord Brooke of Cumnor, then moved Amendments which would have required authorities using the general vesting declaration procedure to make a 90 per cent. payment of compensation on or about the date of vesting. This was resisted by the Government on the ground that it should be left to acquiring authorities to exercise their discretion to make advance payments in appropriate cases. This was accepted by the Opposition on a Government undertaking to include a recommendation on advance payments in the circular to local authorities on the Act.
In any case, the noble Viscount's Amendment would deal with the question of advance payments only in cases coming before the Lands Tribunal, and I am told that the arguments against this proposal are as follows. First, it is not right to draw too close an anology between the Lands Tribunal and the courts. Only a minority of compensation cases go to the Lands Tribunal. If there is a case for advance payments in the land compensation field, it would be right to have some general basis far the making of such payments whether or not a case went to the Tribunal. The Government are in fact considering the general question of advance payments in the review of the compensation code to which Housing Ministers have referred on several occasions in the House, both in proceedings on the Town and Country Planning Bill and subsequently.
Secondly, to deal in isolation with the making of advance payments iii cases going to the Lands Tribunal might have the effect of bringing more cases before the Tribunal. It is wrong to take any measure which needlessly bring; cases before the Tribunal; and this is mother reason for looking at advance payments in compensation cases generally rather than solely in relation to cases before the Tribunal. For these reasons, the proposal to provide for rules to be made about interim payments in cases which go to the Lands Tribunal is, it is suggested, wrong. This does not mean that the Government are opposed to the 71 idea of advance payments in compulsory purchase cases, but only that dealing with cases which go to the Lands Tribunal does not seem to be the right way to tackle the problem. I cannot expect the noble Viscount to take that in in any detail immediately—it is a rather carefully prepared statement. But perhaps he would be prepared to withdraw his Amendment at this stage and would be good enough to consider what I have said.
VISCOUNT COLVILLE OF CULROSSI am very much obliged to the noble and learned Lord. I think I took in most of what he said, but I should, of course, like to read it in the OFFICIAL REPORT to-morrow. I am not certain that I understand the distinction apparently being drawn between the cases which do not go to the Tribunal and those which do. The whole point of my argument is that where you have a case where a man must have his money and the acquiring authority is not prepared to make an advance payment—some do not, although equally some do; I shall be dealing with one authority to-morrow that has done so—then the man has no option but to accept. He cannot go to the Tribunal, because he knows that if he does it will be months and possibly years before he gets any money at all. The cases which do not go to the Tribunal are those where the man gets his money straight away. It may be that he does not get the right amount, because he might have got more if he had gone to the statutory body to have his compensation properly determined. Sometimes he has to take less; he has this pressure put upon him. Therefore, I chose the cases which went to the Tribunal because those are the cases which take a long time.
The noble and learned Lord has said, in my experience rightly, that the money is paid on the conveyance. If the amount of compensation is not contested at the Lands Tribunal the conveyance takes place fairly soon, or it should do; therefore, the case for an advance payment is nothing like so necessary. I hope that the noble and learned Lord follows what I am saying. Perhaps he will consider this point also. I am certainly prepared to withdraw this Amendment at the 72 moment. I had temporarily forgotten the discussion which took place about the vesting agreements under the Town and Country Planning Act 1968. Of course, this is a wider problem than that; this applies to all these cases. I should like an opportunity to study what has been said. Meanwhile, I beg leave to withdraw this Amendment.
§ Amendment, by leave, withdrawn.
§ On Question, Whether Clause 19 shall stand part of the Bill?
§ 5.32 p.m.
VISCOUNT COLVILLE OF CULROSSThere are two small points that I want to raise on Clause 19, apart from the one which was the subject of those Amendments, and I shall be grateful for the help of the noble and learned Lord. There has been a little anxiety about the breadth of the powers to make rules under this clause which appear on the face of the Bill, and I think it would be most helpful if the noble and learned Lord could give a little detail about the sort of rules that he envisages may be made. I know it is subject to the Rules Committee; nevertheless I am sure that the Government have an idea upon the subject.
First of all, there are those who think that if you are not careful to make it clear in the rules that these interim payments are going to be made only where liability is not being contested and the dispute is about quantum, you will have the effect of causing confusion if, subsequently, the case goes in favour of the person who has been ordered to make the interim payment. If you go beyond the cases where liability is not being disputed, you may find that the interim payment will have to be paid back again at the end of the day. It may be that some matter of contributory negligence or some other defence is made good, and then the person who thinks that he has got a substantial sum under an interim payment finds that the court orders him to give it all back again. Then what happens? He may not have got it. He may have spent it by then, because it can be paid to him directly under this Bill. Endless difficulties will arise and I should be most interested to know what the rules will contain. I imagine that they will be to provide only for cases where liability is not disputed and where 73 the disagreement is only on a matter of quantum.
The second problem that is envisaged under this clause as I understand it, is that some people may think that if you have a case, even where liability is not disputed and an interim payment is ordered, this may slow up the proceedings because the plaintiff will think, "Good!; I have got some money out of this; there is no need now to press on so urgently with the rest of the claim", and it may fall behind; therefore the whole course of the case will slow up and we shall have even longer delays than, unfortunately, sometimes occur in the law now. It may remove the incentive on the plain tiff's part to get on. I do not know whether this is a matter that can be covered by rules. If there is any force in what is said in this criticism, I can see that it is something that might be serious—at any rate something which should be guarded against. There it is. There are those two points, and if the noble and learned Lord can help on them it would be much appreciated.
§ THE LORD CHANCELLORYes, it is intended in the first place that, subject to a qualification that I shall make in a moment, these interim payments should be confined by rules to the sort of cases envisaged by Lord Justice Winn's Committee; namely, in substance cases where the plaintiff is fairly certain to recover, such as where the defendant has admitted full liability. That is simple enough. The second is where he has obtained interlocutory judgments for damages to be assessed. That is simple enough. A third case is where if the action proceeded to trial the plaintiff would be bound to succeed wholly on the issue of liability without any discount for fault on his part or on the part of any person in respect of whose injury or death the plaintiff's claim arises. I apprehend that what that means really is the ordinary case where you have a passenger in a motor car and there is a collision between two motor cars. Nobody alleging any negligence on the part of the plaintiff, is it right that he should have to go on without a penny while the two drivers are fighting it out between themselves as to whether they are both to blame, and if so in what proportion, or only one? That is the sort of case.
74 The only extension which I had in mind was this. The Winn Committee's consideration was limited to personal injury actions, and there may be other cases in which a power to order interim payments would be right. For example, the Law Commission have supported a proposal by one of Her Majesty's Judges that in an action for recovery of possession of land the court should have power to make an order for interim payments in respect of the defendant's use and occupation of the land pending the trial of the action. This deals with an old, known difficulty which is not really fair to the landlords. The defendant may, for instance, have filed a notice contending that a notice to quit served upon him by the plaintiff was invalid and therefore his tenancy has not been properly determined. The action may take a considerable time to come on for trial. In the meantime, it is obvious that, whatever the result of the action, the defendant will be liable to pay to the plaintiff for his use and occupation of the land. Either he has to pay the rent or the mesne profits. A court ought, therefore, to have power to order interim payments to be made by the defendant pending the trial of the action. It may be, too, that in an action for the price of work done the defendant may allege that part of the work was faulty or was not completed, and it is quite clear that if the defendant liable for the price of the remainder of the work the plantiff may suffer hardship if he cannot recover any of his money until the case has been heard.
It was thought right, on the whole, to leave this to rules to be made, but the intention is as I have stated. I agree that nothing would be more unsatisfactory, indeed obviously quite wron3, than to order interim payments to be made in circumstances in which it was not quite apparent that the plaintiff' must succeed, for then somebody might have to pay something back and, as the noble Viscount has said, he might not Lave it. But I have indicated the general intention, and hope that with those observations the noble Viscount will be prepared—
VISCOUNT COLVILLE OF CULROSSThere was my second point, the noble and learned Lord will remember, about what happens if the case dies temporarily upon the payment of the interim amount.
§ THE LORD CHANCELLORYes, I have considered that. It is a question of psychology. But I cannot think that because an injured person who may be entitled to a large amount of damages is getting some interim payment on account, he may be any the less anxious to get the rest of it. I think that is a fallacious argument. I believe that, as a whole, the arguments in favour of this reform are right. I think that where a plaintiff must recover, it is a hardship that at the particular time, just after the accident, when he may most need financial assistance, he should not be able to get it. I do not think there is anything really in the second point which the noble Viscount has raised.
§ Clause 19 agreed to.
§ Clauses 20 to 25 agreed to.
§ Clause 26 [Superannuation benefits in respect of certain judicial offices]:
§ 5.39 p.m.
§
LORD AIREDALE moved Amendment No. 19:
Page 16, line 8, leave out (" with respect to ") and insert (" to maintain or increase ")
§ The noble Lord said: I listened to the speech of the noble and learned Lord the Lord Chancellor on Second Reading with regard to Clause 26, and I think I understand what is the purpose of the clause. It is to say that when the holders of judicial offices are transferred from one judicial office to another, any pension rights that they may have shall be safeguarded and maintained so that they shall have the transferability of the pensions which apply in so many other fields and which are so much to be desired. My complaint is that the actual wording of the clause is too wide. The Lord Chancellor may make rules "with respect to" the pensions payable. That surely would include power not only to maintain pensions but to abolish them, to reduce them, or to increase them.
§ I am simply putting forward the view that when the Executive comes to Parliament seeking powers, Parliament ought not to grant powers greater than the actual powers which are required. I am not for a moment suggesting that under this clause any Lord Chancellor would ever wish to reduce or to abolish any judge's pension rights, but as a general 76 principle I simply put forward the view that if the Executive asks for powers greater than it seems to need, then it is the duty of Parliament to amend the Bill so as to reduce the powers to the powers which are in fact needed and sought.
§ Having said that, I am not too confident that the words that I seek to put in are the right words. I am fairly confident about the word "maintain". I think this is the main purpose, to maintain pension rights. I also included the word "increase". I am not sure whether there might be cases in which it was sought to increase pension rights. If that is not so, I should be very pleased at the next stage to move a similar Amendment leaving out the word "increase". I may have wrongly omitted to put in the word "create", because I think there may be cases in which it would be sought to create pension rights which did not already exist. I am uncertain about this, so I am on rather shaky ground. I am not sure that the words I seek to include are the right words, but I am fairly certain that the words I seek to leave out are too wide and that the words ought to be more limited than they are at the present. I beg to move.
§ THE LORD CHANCELLORThe Government appreciate the admirable intentions of the noble Lord, Lord Airedale, in putting down this Amendment, but it would create some difficulties, which are these. The purpose is to secure that the powers conferred by Clause 26 shall never be used to lower anyone's pension. Although this is the last thing that any Government would do, I think it would be difficult for any Government to accept a provision that whatever happens no pension could ever be decreased. In any case, the words proposed do not add anything because a power to make rules "with respect to" something includes a power to make rules "to maintain or increase" it. The contrary, however, is not the case, and the power to make rules merely to maintain or increase superannuation benefits would not really be wide enough to achieve the aim of this clause. The aim of the clause is the creation of an administrative scheme under which service producing actual or contingent pension rights can be accumulated, and thus in certain circumstances to create rights which did not exist before. A power to 77 "maintain or increase" existing rights would not be adequate for this purpose.
As the noble Lord knows, the sole object of this clause is to improve the position in relation to judicial pensions, particularly where at the moment they cannot be aggregated. Certainly no one, if this clause is passed, will be worse off in any circumstances than they are now. I hope that with that assurance the noble Lord may be prepared not to put the Amendment to a Division.
§ LORD AIREDALEI was not dreaming, in any event, of putting this Amendment to a Division. I am very much obliged to the noble and learned Lord the Lord Chancellor for his reply, and I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 5.45 p.m.
§ THE LORD CHANCELLORI beg to move Amendment No. 20. This is a minor drafting Amendment. The purpose is to put it beyond doubt that the powers conferred by Clause 26 will enable the Lord Chancellor to make rules for the transfer of pensions where one of the offices is that of full-time salaried chairman or deputy chairman of quarter sessions, whenever the particular post was created. Such posts are created by local Acts from time to time (for example, by Part II of the Cheshire County Council Act 1968) and it should be clear that the Clause 26 powers extend to them as and when they may be so created. I beg to move.
§
Amendment moved—
Page 16, line 28, after ("enactment") insert ("(whether passed before or after this Act)").—(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ 5.46 p.m.
§ LORD AIREDALE moved Amendment No. 23:
§ Leave out Clause 26 and insert the following new clause:
§
Power to maintain or increase Superannuation benefits to or in respect of persons who have been employed in certain judicial offices.
. The Lord Chancellor or the Secretary of State (as the case may be) may with the consent of the Treasury make rules to maintain or increase the superannuation benefits payable to or in respect of persons who have been employed in two or more of such judicial offices as shall be specified therein.
§ The noble Lord said: When I was reading Clause 26 I remembered some words of the noble and learned Lord the Lord Chancellor quite a long time ago, early in the present Parliament, when he expressed the hope that we might be able to get the Statutes expressed in language that people could understand. I was not able to see that Clause 26 of this Bill came anywhere near to falling within that desirable objective. Clause 26 takes up very nearly two and a half pages of the General Statute Book. Its object, as we now know, is a very simple one: It is really to safeguard and maintain a very few pension rights of a very few holders of judicial offices.
§ Just look at Clause 26. First of all, look at the length of it. Look at the way the subsections are grouped together. Subsections (1) and (2) are very much the same. Subsections (2) and (5) are very much the same; they are lists of judicial offices. On Second Reading the noble and learned Viscount, Lord Colville of Culross, mentioned these lists and wondered whether they were complete. At first sight they are rather strane lists. They include, for instance, the Recor-der They include for instance the Recorders of Liverpool and Mar, chester, but the Recorder of Birmingham is no tincluded. I have no idea why. I cannot believe that the Recorder of Birmingham has been forgotten: it would be most unlikely. However, I wonder whether possibly some judicial office has been missed, has been left out, because, if it has, and Clause 26 is sought to be implemented in respect of that judicial office, the answer will be that nothing can be done without further legislation. When the Lori Chancellor of the time goes to the Cabinet to ask for Parliamentary time for further legislation for this purpose the answer is pretty certain to be that there are other and more pressing needs for Parliamentary time. I should have thought that if one could eliminate the specific list of judicial offices that would be a desirable thing, That is my criticism of subsections (2) and (5).
§ If we come to subsections (3) and (6), which are almost identical, I would say that they are almost incomprehensible. Then when one comes to subsection (7) one sees that that relates to the domestic financial affairs of the Cities of Liver 79 pool and Manchester. I should not have thought it really necessary to have a subsection of a General Statute for this. I should have thought the proper place for this was in the next Private Bills to be promoted by these Cities. It could go in under "miscellaneous provisions". Surely in the interim an arrangement could be reached between the cities and the Treasury to tide over the interim period, because we are not discussing anything in the least contentious.
§ Then one comes to subsection (8), which is a definition subsection. Surely the whole purpose of a definition subsection is that on reading it one should know what the thing means that is being defined. I do not know whether anybody reading subsection (8), which purports to define what is meant by "judicial office remunerated out of central funds", can possibly get a clear idea of its meaning. Could not these pairs of subsections be put together by using the simple device of saying "The Lord Chancellor, or the Secretary of State (as the case may be)…"? Then they could share subsections (1) and (4), (2) and (5) and (3) and (6). That would just about halve the length of Clause 26.
§ I should like to go a little further. I should have thought that this subject matter was deserving of about five lines of the General Statute Book, and I have sought to draft a clause to replace Clause 26 occupying five lines. I hope that I have succeeded. I dare say that it will be said, and no doubt it has been said, that these provisions must be arrived at by reference to the Superannuation Act and that must lead to all this verbiage. But surely we can try to get away from this mass of verbiage to achieve such a very small and non-contentious purpose. I hope that it will be possible to get rid of Clause 26, with its extraordinary complexities, and to replace it with the new clause, which I venture to suggest is not at all complex and which any ordinary person, reading it, could understand. I am sure that the noble and learned Lord the Lord Chancellor will think this a worthy purpose. I beg to move.
§ THE LORD CHANCELLORI have a good deal of sympathy with the noble Lord, Lord Airedale, and I am quite prepared to have another look at this matter. I am told that the list which is set out in subsection (2) is much more open-ended 80 than may at first sight appear. The offices in categories (a) to (g) have only one holder each; categories (h) and (i) (that is, chairmen and deputy chairmen of quarter sessions and stipendiary magistrates), have more than one and may be increased. These categories are therefore framed so as to be general in their application to posts of this kind. The Government drafting Amendment, at page 16, line 28, is designed to put that beyond doubt.
The Government are satisfied that the clause covers all the categories intended. The only office omitted is that of the Vice-Chancellor of the County Palatine of Lancaster who was excluded at the request of the Duchy of Lancaster. In that sense the clause is inevitably an interim provision. The Royal Commission on Assizes and Quarter Sessions may make a report involving far-reaching legislation affecting this or other aspects of judicial administration. The Government cannot, of course, anticipate that Report.
Finally, the powers conferred by Clause 26 have to be carefully knitted into the texture of the enactment relating to superannuation. I do not know why Superannuation Acts always seem to be so extremely complicated, and the object of Clause 26, although it appears in this Bill, is designed to put a new section into the Superannuation Act and therefore it has to fit in with the remainder of that Act. I do not like long and complicated provisions if one can possibly make them shorter and simpler. Therefore, if the noble Lord will withdraw his Amendment, I will certainly have another look at the matter to see whether it is possible to achieve the desired object in a shorter form.
§ LORD AIREDALEI am very grateful indeed for that undertaking. I feel that it is almost an insult to the high offices of Lord Chancellor or Secretary of State that Parliament cannot trust implicity the holders of those offices to do the right thing with regard to judges' pensions. After all, they are answerable to Parliament for what they do, and this is only to be done with the consent of the Treasury, whose restraining band will be in evidence. Therefore, surely Parliament could trust any conceivable holder of the office of Lord Chancellor or Secretary of State to do the fair thing by 81 judges' pensions without needing to hedge it about with two and a half pages of the General Statute Book. I am very grateful that this is to be reconsidered. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 26, as amended, agreed to.
§ Clause 27 [Further provisions as to pension rights and related matters]:
§ 5.57 p.m.
§ THE LORD CHANCELLOR moved Amendment No. 24:
§
Page 18, line 28, leave out from ("subsection") to end of line 36 and insert ("(4) (which specifies the offices to which that section applies), after paragraph (a) there shall be inserted the following paragraph:—
(aa) chairman or deputy chairman of a court of quarter sessions where under any enactment (whether passed before or after this Act) a person may qualify for a pension by virtue of service in that office"").
§ The noble and learned Lord said: If it is convenient to the Committee, I should like to discuss with Amendment No. 24, Amendment No. 27. These two minor Amendments are designed to extend Clause 27(2) to cover the Chairman and any Deputy Chairman of Cheshire Quarter Sessions, and at the same time it is necessary to bring the subsection into line with the description of the chairmen and deputy chairmen of quarter sessions adopted in Clause 26. Part II of the Cheshire County Council Act 1968 provides that full-time salaried chairman and deputy chairman of the Cheshire Quarter Sessions may he appointed. Any chairman so appointed ought to be covered by Clause 27(2) just like the Kent deputy chairmen, but by inadvertence they were left out of the Bill as introduced. It is therefore desirable to extend the subsection in any case.
§ But although, if Cheshire were included by name, all existing full-time salaried chairmen and deputy chairmen would be covered, there may be new appointments created by local Acts between now and any legislation which may flow from the Report of the Royal Commission. The best course, therefore, is 82 to make the provision a general one, on the same lines as the new "Section 39A (2)(h)" of the Superannuation Act 1965 created by Clause 26. The Amendment adds to the list of judicial offices set out in Section 3 of the 1967 Act the general category of pensionable chairmen and deputy chairmen of quarter sessions. The Amendment to Schedule 2 is consequential. The list set out in the 1967 Act already contains certain specific references to particular chairmen and deputy chairmen. The addition of the new general provision makes these particular provisions unnecessary, and they can accordingly be repealed. I beg to move.
§ On Question, Amendment agreed to.
§ Clause 27, as amended, agreed to.
§ Clauses 28 to 31 agreed to.
§ Clause 32 [Short title, extent and commencement]:
§
THE LORD CHANCELLOR moved Amendment No. 25:
Page 19, line 41, leave out ("Schedule") and insert ("Schedules 1 and").
§ The noble and learned Lord said: With the permission of the Committee, I should like to take with this Amendment No. 26. Amendment No. 25 is a paving Amendment to the insertion at the end of line 16, on page 21. As drafted, Schedule 1 to the Bill contains no reference to an enactment affecting Northern Ireland, but it is to be amended by inserting a reference to the Northern Ireland Act 1962. Consequently, the exceptions to the provision in Clause 32(3) that the Bill does not apply to Northern Ireland must be extended to include Schedule 1. Amendment No. 26 is a drafting Amendment, the object of which is to keep the list of enactments in Section 2(1) of the Northern Ireland Act 1962 complete. Section 2(1) specifies the cases in which no appeal will lie to the Court of Appeal in Northern Ireland. I beg to move.
§ On Question, Amendment agreed to.
§ Clause 32, as amended, agreed to.
83§ Schedule 1 [Enactments amended]:
§ THE LORD CHANCELLORI dealt with Amendment No. 26 when moving Amendment No. 25. I beg to move.
§
Amendment moved—
Page 21, line 16, at end insert—
| ("The Northern Ireland Act 1962 (1962 c. 30). | In section 2(1), after paragraph (i) there shall be inserted the following paragraph:— |
| "(j) from a decision granting or refusing a certificate under section 12 of the Administration of Justice (No. 2) Act 1968""). |
§ —(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Schedule 1, as amended, agreed to.
§ Schedule 2 [Repeals]:
§ THE LORD CHANCELLORI explained Amendment No. 27 when moving Amendment No. 24. I beg to move.
§
Amendment moved—
Page 22, line 19, at end insert—
| ("1967 c. 28. | The Superannuation (Miscellaneous Provisions) Act 1967. | In section 3(4, subparagraphs (v), (ix), (xi) and (xii) of paragraph (a), and paragraph (b).") |
§ —(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Schedule 2, as amended, agreed to.
§ House resumed: Bill reported, with the Amendments.