ADMINISTRATION OF JUSTICE BILL

HL Deb 06 February 1968 vol 288 cc1075-86

4.18 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.)

LORD SHACKLETON

My Lords, I rather thought the noble Lord, Lord Goodman, was going to raise the question of admissibility of Amendments. This would now be the moment, following the precedent of the last occasion.

LORD GOODMAN

My Lords, I understand it would be a convenient moment for me to raise the question that has, if I may say so, with great courtesy and very properly, been brought to my notice by the Officers of the House, which is the admissibility according to the present Rules of the House of the Amendments down in my name on the Order Paper. The Amendments are suggested to be out of order, I understand on the ground of relevance. I believe the procedure of this House to be not a very rigid one, nevertheless to be one which is enforced in relation to certain matters, with very proper regard to considerations of relevance. It would be quite wrong if I were to seek to impose on the House a debate on any matter which it regarded as being irrelevant to the clause or the Bill, and I would not seek to do it. In a self disciplining body it is particularly important that no Member of the House—I am very conscious of this in relation to myself—should indulge himself by seeking to hold a debate on a matter which is not regarded as appropriate for debate.

That, however, does not detract from my present feeling that this Amendment is relevant. It is not a matter on which I am being egotistical enough to rely on my own judgment. I have sought advice from distinguished Parliamentarians, all of whom take the view—I have not heard a dissenting voice from the advisers I have sought outside this Chamber—that these particular Amendments are not irrelevant. The matter seems to me to be comprised within a very short argument indeed. The Bill provides for an increase in the total number of Her Majesty's judges, and my Amendment provides for increasing the pool from which that total number is to be drawn. It is as simple as that. It appears to me to be almost unarguably relevant in relation to the Bill.

With the greatest respect to those who take the contrary view, I am tempted to think that possibly what may have induced their viewpoint is the fact that undoubtedly this Amendment, although relevant, will introduce material, important considerations that may well not have been in the minds of the persons introducing the Bill when they brought it in. That is a quite different consideration. An Amendment may nevertheless be relevant, though its effect is quite far-reaching. The effect of it may or may not be considered to be far-reaching, but that is not a point which touches on the relevance. The question of relevance is whether it is cognate to the matter we are discussing; namely, how many judges we are to have at any given moment of time. Where they are to come from, I venture to submit to the House, is cognate.

What to do about it? If I may add a word, certainly it would not be appropriate for me to press this matter to a Division; but I should like to sense the feeling of the House on the matter. If the House feels that these Amendments are not relevant, then I shall immediately withdraw them and seek to find some other opportunity of raising a matter which I regard as of considerable public importance. I should like to hear the views of other Members of the House, if they are so minded, on this matter, because it is strongly my view, and the view of those whose advice I have sought, that these are relevant Amendments and are properly introduced for discussion on the Committee stage.

4.23 p.m.

LORD SHACKLETON

My Lords, the noble Lord, Lord Goodman, has put this problem fairly and squarely in front of your Lordships, and it is, of course, for your Lordships' House to decide. As he himself indicated, we discipline ourselves. He has taken advice; I have taken advice. The Leader of your Lordships' House is always in a slightly equivocal position on these occasions. I can only advise the House. I have none of the authority that the Speaker in another place has in these matters, where his decisions are virtually unchallengeable. Therefore, it may be of help to your Lordships if I express the views to which I have myself come, on the basis of the advice I have received; and I will attempt to meet the noble Lord's points on the question of whether "relevance" in this sense means that it is cognate to the subject generally.

It might be worth while reminding your Lordships of the principle by reading an extract from a Minute of January, 1931, by Counsel to the Chairman of Committees. If my memory is right, the then noble Earl, Lord Home, also referred to this on the last occasion when there was a discussion of this kind, on the Peerage Bill in 1957.

This is what is fundamental to our consideration: There are no Standing Orders regulating the admissibility of Amendments in the House of Lords. The House is master of its own procedure and, unlike the House of Commons, is not subject to ruling on points of order. The test usually applied in practice to the admissibility of an Amendment is whether or not it is relevant to the subject matter of the Bill. But the decision upon this House, and the action taken on that decision, can only be made by the House itself". It is, of course, perfectly relevant for your Lordships to take into account the advice that the noble Lord, Lord Goodman, has himself given your Lordships on this matter.

If I may now refer to Erskine May, page 500 of the 17th Edition states: Amendments must be relevant to the subject matter of the Bill and of the clause to which they are proposed; and they must not be inconsistent with a previous decision of the Committee on the same question. The admissibility of an Amendment, however, can only be decided by the House … there being no authority which can in advance rule an Amendment out of order. The Officers of the House would draw attention to an Amendment which appears to contravene the accepted principles of admissibility and the matter would be discussed in the Committee". Procedure seems to have developed a little, because on the occasion in 1957 the then Leader of the House raised the matter, as the noble Lord, Lord Goodman, did, before the House actually went into Committee.

I have looked most carefully at the Amendments in the names of the noble Lord, Lord Goodman, and the noble Lord, Lord Ilford. Of course I express no opinion on the merits of what they seek to do, beyond appreciating that this is a subject of importance and one which has been raised on other occasions. But on the application of previous procedure and rulings to relevance, I would say that these particular Amendments are outside the scope of the Bill, and are therefore irrelevant, because, I take it, the Bill is designed solely and exclusively to making provision with respect to the maximum number of judges. Where the judges come from is, I agree, an important subject. But the noble Lord who is responsible for presenting this Bill to your Lordships' House has not seen fit to include this subject for consideration with the Bill. It would of course have been possible for a Bill to be introduced in a form which made the Amendments which the noble Lord would like to see made to the 1959 County Courts Act. It is to this point that the noble Lord directs our attention.

An admissible Amendment would be one which sought to vary the maximum number of judges; but the eligibility of judges, I would submit, and am so advised, is altogether another matter. This could be the subject of a separate Bill, which the noble Lord might himself wish to introduce. It could also be the subject of a Motion for Papers. But, as I said, it is not relevant to the Bill as it is before us now, because it is outside the scope of the Bill as it is before us.

In this matter I think we are bound to pay careful attention to the advice which the officials of the House give us. Although we all find it difficult to refer to officials, this is a matter in which I think it is appropriate to say that they are unanimious in the advice they have given to us. Neither I nor your Lordships' House is concerned with whether what the noble Lord wishes to do is reasonable or right, or whether this is just an opportunity: it is entirely a question as to whether by discussing the Amendments we should be breaching our own custom in this matter. We are bound by custom, and I am sure your Lordships generally would feel that all of us have a responsibility in this matter.

Therefore, with the greatest feeling of sympathy, I hope that your Lordships will agree with the advice I have given, bearing in mind that, as I repeat, I am not a Speaker; and I carry no more authority than any other Member of your Lordships' House.

4.29 p.m.

VISCOUNT DILHORNE

My Lords, I have listened most carefully to what the noble Lord the Leader of the House has said. I cannot claim, as he can and as the noble Lord, Lord Goodman, can, to have received any advice on this question. None the less, if I may express my own opinion, if one applies the test of whether these Amendments are or are not within the scope of the Bill I would say without any hesitation that, whether or not what is proposed is desirable, they are clearly not within the scope of this Bill, which has the object merely of increasing the number of judges. The Amendments introduce something which is right outside the scope of this House in this matter to consider, though it is something which one of these days the House might well consider; namely, what will make persons eligible for appointment to the Judiciary.

We in this House use the word "relevance" which perhaps is not so precise as the word "scope" which is more usually referred to in another place, but I believe that the same test applies. In the sense in which the word is used in this connection, it cannot be said to be relevant to this Bill, which deals merely with the increase of numbers, to consider the qualifications for the Judiciary. Therefore, while I think the noble Lord, Lord Goodman, put his argument very persuasively, I would say without any doubt that these Amendments to which reference has been made are not relevant.

LORD WIGG

My Lords, as a newcomer to this House, I am reluctant to enter into a discussion of the practice and customs of your Lordships' House; but as an old Parliamentarian I could not let this occasion pass without challenging the statements which were made by the Leader of the House. He first asserted, as I think is quite correct, that this House is the judge of its own procedure. He then proceeded to introduce as evidence the opinions of the officials of the House. He cannot have it both ways. The House is master of its own procedure free and unfettered to take those opinions on the basis of the issues before it. Of course, all of us can and do take the advice of many people, parti- cularly when we are in doubt, but all of us must take the responsibility for what we say and for decisions we advise others to take in this Chamber. The noble Lord the Leader of the House went on to say that we were bound by custom. Again, he cannot have it both ways. Either we are bound to examine issues which come before us and play it as the issues present themselves, or we are bound by the decisions of those who went before us.

I should have thought that this was a marginal case, and that if the Amendments in the name of the two noble Lords stood on their own, applying the test of a place from which I recently came, they would unquestionably be out of order. But as in this case your Lordships seek to amend the Long Title, then I should have thought that marginally if your Lordships took a decision on whether the Amendments to the Long Title should be accepted, it is just possible that the discussions which clearly your Lordships would wish to have could in fact take place. I would not wish to pontificate upon this issue, but I should be failing in what I conceive to be my duty to your Lordships' House if I did not stand four-square behind the practice that your Lordships must be, and always be, masters of your own procedure, free and unfettered from advice from any other quarter, except that which noble Lords in their individual capacity may wish to take.

LORD CONESFORD

My Lords, I should not intervene but for the speech of the noble Lord, Lord Wigg. I do not think that there was any such contradiction as he supposed in the speech delivered by the Leader of the House. The noble Lord, Lord Wigg, is perfectly right that this is a matter which, if necessary, could be determined by the vote of this House. But that was precisely what the Leader of the House said. With great respect, I thought that the Leader of the House made a model speech as Leader of the House in calling attention to where the power lay, but nevertheless telling us what he thought the precedents were. I go further, however, and I think that the noble Lord, Lord Goodman, will not quarrel with what I say. If the long custom of this House has been that described by the Leader of the House—and in that he has been supported by my noble and learned friend Lord Dilhorne—then the probability is that it has been a very useful practice and custom, and we are wise to pay some attention to that custom precisely because we have not the very strict rules that exist in another place.

I speak with some 12 or 13 years' experience in this House, and when the noble Lord, Lord Goodman, first raised this question on Second Reading, I had no doubt whatever that, if he put down such an Amendment it would, under our existing practice and on the precedents, be considered irrelevant. I agree with the noble Lord, Lord Goodman, that, if the word "relevant" were used in more common parlance, one might have come to a different conclusion, but using the word "relevance" as we use it in this House in considering the nature of an Amendment, I have little doubt that these Amendments are irrelevant. I felt this so strongly that I actually misheard the noble Lord, Lord Goodman, in his Second Reading speech, and in my own speech congratulated him on not proposing to put down an Amendment on the ground that I thought it would be irrelevant; but I fond that in that matter I misheard him. I am bound to say that, if he wished to raise this sort of matter, the noble Lord was absolutely right in using the opportunity of the Second Reading, and that he would be acting in fact against the common practice of this House, which I think has proved useful to us all, if he did not accept the view taken by the Leader of the House on this occasion.

One other matter arises and what I say may appear to contradict something said by the noble Lord, Lord Wigg, but I do not think he will disagree with me. We are all most grateful to the Officers of the House for drawing our attention to these matters whenever they arise; we are very dependent on them; their advice to us on these occasions is very useful. I very much hope that the advice of the Leader of the House will be accepted, and that the noble Lord, Lord Goodman, will not see fit to challenge it on this occasion.

4.38 p.m.

LORD SILKIN

My Lords, I should like to say a few words, because if this Amendment had been capable of being discussed I should have spoken very strongly in favour of it. But that is not the issue at the moment. The question is whether this kind of Amendment is relevant to the Bill. I am bound to say that I have come to the conclusion that it is not. It is quite true that we can make our own Standing Orders as we go along, and that it is for this House to decide. But, after all, we have to run this House with some kind of sense of order. Whether these Standing Orders are written or not, we have to have in our own minds the fact that there are certain limits to discussions which we have to impose. I cannot conceive that the Bill, designed merely to increase the number of judges is one in which one can raise a very big question of principle; namely, whether solicitors or barristers, or both, should be qualified to become judges. That is surely quite a different matter from what is set out in this Bill.

If the noble Lord, Lord Goodman, will take my advice—which I am sure he will not—I suggest that we get together and raise this question, which is a very important question, in a more formal and orderly way. It is one which this House ought to be in a position to deal with, but to deal with it at the beginning in the atmosphere of a House which is divided as to whether or not the Amendment is relevant—even if the House decided by a majority of five that it was relevant—would not be quite the right basis from which we could then proceed to discuss the merits of the Amendment.

Therefore, I hope that the noble Lord, Lord Goodman, having ventilated this question effectively, as he did on Second Reading, will let it rest at that and will not divide the House. I shall then be very happy to get together with him and confer as to what is the most effective way of carrying this matter a stage further.

EARL JELLICOE

My Lords, I have felt, like certain noble Lords, a certain schizophrenia in considering this issue. As to substance, I must confess to considerable sympathy for the points made by the noble Lords in their Amendments. As a layman, one who only par; the lawyers' fees, I have always felt the caste divisions between the two branches of this illustrious and expensive profession to be rather artificial.

Nevertheless, as to procedure, I must say that I was personally very much impressed by the views expressed by the noble Lord the Leader of the House, and the Amendments—certainly, at least, to me—seem to fall beyond the scope of the Bill. I should like to add my voice to those of other noble Lords who have spoken, in urging the noble Lords who have put down these two Amendments to pursue them if they wish, but I hope that they will pursue this issue by way of a separate Motion or Bill.

This may be a marginal issue—I would grant that. But if that is so, and since we have no Rules of Procedure, I hope your Lordships will feel that you should be particularly careful and scrupulous when you navigate in these procedural waters. If we are to err, let us err rather on the side of austerity. Let us follow precedent in so far as we can. I should have thought it was also useful for us to listen to the advice of the Officers of your Lordships' House. This is, of course, a matter for your Lordships to decide upon. The noble Lord the Leader of the House has said that he has not advised your Lordships, but at least he has intimated the direction in which his advice might fall if he were to do so. It is certainly not for me to advise your Lordships but, in so far as I am doing so, my advice would chime with the intimation which your Lordships have received from the Leader of the House.

LORD GLADWYN

My Lords, I shall not detain your Lordships for more than a few moments, more especially as I am not an expert on the procedure of this House. I would just say that we on these Benches have listened with the greatest attention to the argument developed by the noble Lord, Lord Goodman, and I think to some extent supported by the noble Lord, Lord Wigg, regarding the relevance of his Amendment and the desirability of its being discussed in Committee. I must say that we on these Benches, at any rate, find ourselves completely convinced by the arguments deployed by the noble Lord, Lord Shackle-ton, the noble and learned Viscount, Lord Dilhorne, and others, to the effect that these Amendments are not relevant in the normally accepted sense of the term and are certainly not, as we see it, within the scope of the Bill—a very good phrase introduced by the noble and learned Viscount, Lord Dilhorne. It is very difficult to maintain that they are within the scope of this very simple Bill which, after all, provides for an immediate and urgent necessity upon which I think everyone is agreed in principle, and which could therefore go through with very little discussion.

But apart from anything else, if we were to allow this Amendment, which may be a very good one (and we on these Benches reserve ourselves entirely as to the nature of the Amendment) to be introduced and discussed, it would without doubt be to some extent contentious. I doubt whether all the members of the legal profession would be in favour of this Amendment, and that might in itself hold up the passing of this very necessary little Bill. Therefore, apart from anything else, I regard that as a strong argument in favour of asking the noble Lord, Lord Goodman, to be so good as to withdraw his Amendment.

One reason for confusion may be—I do not know enough about it to say with certainty—that the back of this Bill is labelled "Administration of Justice", and then the Long Title is given. But on the front it is referred to as the "Administration of Justice Bill", which is followed by an Explanatory Memorandum. It is surely not an Administration of Justice Bill; it is a Bill simply to increase the number of judges. Why, therefore, should it not be called "Increase in the Number of Judges Bill"? I put that down only as a way by which we might get round the difficulty of procedure; and it might even be considered in Committee. I do not know whether or not that would be possible, but it seems to me that there is a certain amount of confusion. Anyhow, so far as we are concerned, we would ask the noble Lord, Lord Goodman, to be so good as to consider withdrawing his Amendment.

4.47 p.m.

LORD GOODMAN

My Lords, the House will forgive me for an abortive use of its time, if it has the feeling that the discussion we have had has not been without value in quite a number of directions. I made it clear when I spoke initially that I had no intention of forcing this matter to a Division. I hope your Lordships will indulge me if I say just a word or two as to my reasons. First and foremost, I think it would be wrong to seek to force my opinion against the weight of opinions which have been expressed in the House on this subject, and the view I may hold or continue to hold in that regard is irrelevant. Secondly, I entirely agree with the observations of the noble Lord, Lord Silkin, that we should be discussing the Amendment in the wrong atmosphere, because what we have been discussing is not the merits or demerits of these Amendments but solely the question of relevance. It would be wrong to seek to introduce a discussion that was vitiated by considerations of the relevance of the whole matter, so on that score, also, I think it would be wrong to press the matter to a Division.

I should like to say that much use has been made by the noble Lords who have spoken of the specialised interpretation of the word "relevance" in this House. But the one thing that has not emerged is any illustration of its specialised use in this House. It would be of great use in the future if we could find somewhere some guidance on this subject, because it appears that House of Lords "relevance" is rather like Alice in Wonderland, where the words employed have a usage and an interpretation that are different from the ordinary sense. There has been no indication, either in the discussion or in any precedents, of how that word is to be interpreted. I think that for newcomers to the House it would certainly be of value to know how House of Lords "relevance" differs from ordinary "relevance".

Having made that observation, I should like to conclude by saying that nobody would be so foolhardy or so foolish as to reject an offer of such terrifying strength of alliance as came from the noble Lord, Lord Silkin; and that I welcome indeed.

LORD SHACKLETON

My Lords, perhaps, with leave, I may just say that I am sure the House will appreciate the attitude of the noble Lord, Lord Goodman. I do not think it is any good his asking me, or indeed any other noble Lord, precisely what the interpretation of "relevance" is. It has a Parliamentary sense—sorne people might even say a Pickwickian sense—and this, as my noble friend Lord Wigg will agree, also applies in another place. In those circumstances, this is undoubtedly a matter which the Committee on Procedure could consider further.

There have been previous examples which could be examined. There was one very appropriate one—the Betting Inducements Bill of 1913—and on that occasion Lord Salisbury attempted to move, That the Amendment be not considered, and the House became rather nervous at that point. I think we should certainly very much regret having to, move a Motion of that kind. Therefore, without prolonging this discussion any further, I hope that the noble Lord Lord Goodman, and the noble Lord, Lord Ilford, will now decide—because we are still in a sort of limbo state, as we have not yet reached the Committee stage—not to proceed with their Amendments. Perhaps before we leave this, my noble and learned friend the Lord Chancellor, who is certainly a much greater lawyer than I am, might have something to say on this.

THE LORD CHANCELLOR

My Lords, I should very much prefer to leave the matter to the House.

LORD ILFORD

My Lords, I ought first to apologise to your Lordships for my absence when the Committee stage was called. It is abundantly clear, I think, that the view which your Lordships have indicated in relation to the two Amendments set down by the noble Lord, Lord Goodman, applies with equal force to the Amendments which stand in my name. I must confess that when I put these Amendments down I myself fell some doubt as to their relevance; although, of course, your Lordships might have come to a different conclusion on the Amendments proposed by the noble Lord, Lord Goodman. All that it remains for me to do is to indicate to your Lordships that I do not propose to move either of the Amendments which stand in my name on the Paper.

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD AILWYN in the Chair.]

Clauses and Schedule agreed to.

House resumed: Bill reported without amendment; Report received.