HL Deb 08 December 1970 vol 313 cc874-926

7.5 p.m.


My Lords, I beg to move that the House do again resolve itself into Committee on this Bill.

Moved, That the House do again resolve itself into Committee.—(The Lord Chancellor.)


My Lords, before the Question is put, I wonder if the House would like to consider whether this is a suitable time to go into Committee to consider this very important Bill, to which there are very many Amendments. There are a number of people who are interested in the Bill who are not here and who had very little notice, anyhow, that it was to be taken to-day. I am sure that we all want to give the most close consideration to these Amendments. They are Amendments which we are specially able to help upon, and I rather think it would be better if we had a little more time to consider them.


My Lords, of course I am in the hands of the House in a matter of this kind, but this is a Bill to which I think not only the Government but also the Opposition attach a great deal of importance. We are living in an atmosphere of great pressure on the Parliamentary timetable. I was hoping very much indeed to get the Bill through this House before Christmas. I fear that for one reason or another that may not be possible, and it might even be jeopardised if we do not proceed as far as we can to-day. I notice, looking around me, that there are a number of noble Lords who have probably waited all through the last proceedings in order to be present at this Committee stage, and I was hoping that we could make some more progress. All I can say is that I am in the hands of the House, but that is the best advice that I can give to the House.


My Lords, I for one should be very sorry if this Bill were lost, but it seems to me inconceivable that it would receive proper consideration in Committee, and that the Committee stage would be concluded to-night without sitting to a very late hour indeed. I think it is extremely unfortunate that the Committee stage of this very important Bill should be taken at this late hour. There are many of my noble and learned friends who are very interested in the Bill but who obviously are not able to be present—they are absent. There are a number of important Amendments down. I myself am really interested only in the next clause under discussion, so that perhaps I am not best qualified to speak. But I think it is a pity that we should sit late on the Committee stage of such an important Bill. However, if the noble and learned Lord the Lord Chancellor is convinced that if we do not get this Bill through to another place very speedily, and before Christmas—which seems to me astonishing—there is a real risk of its being lost, that is another matter.

But I should have thought it was unlikely, even if we went on with the Committee stage to-night and allowed a proper interval between the Committee stage and the Report stage, that, with the best will in the world, it would be possible to get the Bill to another House by Christmas. Those are my feelings upon the matter. I am sorry that the Bill has to be taken so late, but I take no strong view. If the Lord Chancellor is convinced that it must be dealt with to-night, or that we must make some progress on it to-night, I will play my part.


My Lords, may I put another point to your Lordships? I follow what was said about there being great pressure of Parliamentary Business, but, after all, we have been sitting only three days a week. We are at the beginning of a new Session of a new Parliament, and it seems a little strange that we should be talking about the constrictions of time at this stage of a Parliamentary lifetime. I should have thought it would be better to sit on a Monday and give proper consideration to the Bill.


My Lords, may I, by leave of the House, speak again? As I said before, I am in the hands of the House on this matter, but I know that even those noble Lords who are absent would be sorry to jeopardise the passage of the Bill. I cannot, of course, say that we can finish it to-night, since we start at such a late hour. It may be that we shall have to sit on Monday as well as this evening, but there is quite a lot to do. It is difficult to estimate how long the Committee stage will last, because that is largely in the hands of noble Lords who wish to move Amendments. I can only place myself at the disposal of the House, but I myself feel that we ought to make some progress to-night. Even though we may not carry the matter a great deal further, some progress would be better than none.


My Lords, I apologise to the House for not being here when it was moved that the House should again form itself into a Committee on this Bill, but I did not realise that the noble Lord, Lord Beswick, was going to make a protest. I am sure he will appreciate that in this House we get Bills at certain stages very often on condition that we release them for another place by a certain time. The noble Lord knows that as well as I do. We have got this Bill and we have various other Bills, but they were on the condition that we did our best to deliver them by a certain time. I think, really, that to say that it is too late an hour to start at seven o'clock is a little hard, because, as I understand it, there is not a great deal more to do on this Bill. If we cannot finish it within a reasonable time to-night, then of course we will sit on Monday. But I understood that it was the feeling of noble Lords on both sides of the House that if we could avoid sitting on Mondays, anyhow before Christmas, as far as possible we should try to do so. This I have tried to do, and I know the noble Lord tried to do it when he held my Office. So I hope we may be able to make a little progress on this Bill to-night.


My Lords, I have made a protest which I thought ought to be made, and I know there are others who agree with me. I am sorry the noble Earl, Lord St. Aldwyn, did not know I was to make this protest. I have been spending a good deal of the last hour looking for him, and I left a message in his office saying that I was proposing to raise this matter. I am sorry the communications appear to be inadequate. Whereas I recall enough of the problems to realise that one has to sit late on occasions—and I was filled with as much enthusiasm as is the noble Earl for getting business through—nevertheless, I recall that Monday sittings are sometimes a better way of getting business along, and I hope that he will take this point into account. It may be that we should accept the advice, which I am sure is very wise, from the noble and learned Lord, that we should have a go at this Bill and see how we get on, but I would myself trust that we do not go too late again.

On Question, Motion agreed to.

House in Committee accordingly.

[The EARL OF LISTOWEL in the Chair.]

Clause 23 [Temporary High Court and Circuit judges]:

7.13 p.m.

LORD GARDINER moved Amendment No. 22: Page 18, line 6, leave out ("expedient") and insert ("necessary").

The noble and learned Lord said: As the Committee knows, a commissioner is a barrister who is given the full jurisdiction of a High Court judge for periods which may vary between two or three days and two or three weeks. Nobody likes this. The important person, of course, is the civil litigant or the person whose criminal trial is to take place. They, not unnaturally, strongly take the view that they want their cases decided by judges and not by barristers. The solicitors do not like it because their clients complain, and naturally they do not like to hear clients complain. The barristers do not like it because, first, it means that they have to return at very short notice the cases they were going to do in the next three or four weeks and for which they have already seen the clients, who have to be told, "Your barrister has now become a commissioner, and you will have to find somebody else at the last moment". In addition, barristers lose money by being commissioners instead of being in practice. So nobody likes commissioners.

The need to appoint commissioners has arisen from the system which it is the object of this Bill to cure. That being so, I put down this Amendment only in order that we may hear from the noble and learned Lord the Lord Chancellor what he expects to do in the future. I am sure that the Bill is quite right in giving the Lord Chancellor power, even in the future, to appoint commissioners where it is necessary, but the word used is "expedient", and I was going to invite the noble and learned Lord to tell us whether his intentions would not really be better reflected in the word "necessary" than in the word "expedient". As it is drafted, it sounds rather as though we are going to go on and on having commissioners, whereas I would have hoped that once the reforms made by this Bill are in force it really would be rarely necessary, except possibly in what are now the county courts, to appoint commissioners; and, at all events, in the Crown Court exercising its criminal jurisdiction it would hardly if ever be right to appoint a commissioner, and then only when necessary. I beg to move.


I doubt whether there is any difference between the noble and learned Lord and myself as to the precise occasions upon which appointments under the new system would actually be made. I accept that the purpose of the new system is to have more full-time judges, fewer part-time judges and still fewer temporary commissioners. But given the choice between the word "expedient" and the word "necessary", I opt, I am afraid unhesitatingly, in favour of "expdient", for this reason. I think I know what is expedient—or desirable, if somebody prefers a more conversational word. I would act only when I thought it necessary. But I do not know by what criteria I could judge necessity if that is what was in the Bill. What degree of delay or inconvenience have I to impose upon litigants before I appoint a temporary judge? One could argue that it was not necessary at all because they can always wait. But I do not want them to wait, and I do not think the noble and learned Lord would want them to wait.

In the end, I want to anticipate a crisis arising. I doubt whether the word "necessary" would enable me to anticipate a crisis arising in advance. Only when the necessity had become apparent would I be allowed by Statute to exercise my power. I do not believe, as I say, that in practice the noble and learned Lord, were we to be transposed, would make any different use of the power from that which I would make of it, because we both of us start with a preconception against these temporary appointments. But although, on the lips of moralists, the word "expedient" has a slightly pejorative flavour and the word "desirable" represents much more what I have in mind, I would still prefer the word "expedient" to the word "necessary", and I hope that on reflection the noble and learned Lord, in the light of my explanation, will not feel it necessary to press his Amendment.


In view of what the noble and learned Lord has said, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 23 shall stand part of the Bill?


My criticisms in relation to this clause go a little deeper than those of the noble and learned Lord, Lord Gardiner. I think there is no disagreement between him, my noble and learned friend the Lord Chancellor and myself as to how we should use the powers, if we had them, contained in this clause. But the point I want to draw attention to is that the powers contained in the clause go far wider than the present Lord Chancellor's intention, his predecessor's intention or mine, when I was Lord Chancellor. I think that this clause, as it is drawn, raises questions of not inconsiderable importance, and that is one of the reasons why I wish this debate could have taken place at an earlier hour of the day, when it would have been possible for other noble and learned Lords to be present and express their views.

It has taken a long time in our history for the independence of the Judiciary to be established. No longer are they the servants of the Executive, as they were thought to be at one time. No longer can they be dismissed if their actions displease: it requires a Motion of both Houses to get rid of them. I should be sorry, and I am sure we should all be sorry, to see that principle and that security eroded. While it is true that the purpose of this clause is merely to enable the appointment of commissioners of assize under another name, it is the first time that it has been proposed to appoint High Court judges on a temporary basis without that security of tenure which High Court judges now enjoy: that the appointment may be made during such periods and on such occasions as the Lord Chancellor thinks fit. Will the temporary High Court judge enjoy any security of tenure? Could his services be dispensed with at short notice—and perhaps even without notice? I have no objection (there are, of course, the criticisms which the noble and learned Lord, Lord Gardiner, made) to suitably qualified barristers acting temporarily as High Court judges, as they do now if asked to sit as commissioners, during the whole or part of an Assize. But they are not High Court judges. I think this clause would be far better drawn if it provided not for the appointment of temporary High Court judges but for the appointment of commissioners to act as High Court judges for a specified period which could be fixed by the Lord Chancellor.

There is more in this than mere nomenclature. How long is "temporary"? Would the appointment of someone to act as a High Court judge for ten years be permissible under this clause? I see no reason why it should not be, if you contrast the word "temporary" with "permanent". My noble and learned friend the Lord Chancellor will no doubt say that no Lord Chancellor would make such an appointment. But, just as one Parliament cannot bind another, one Lord Chancellor cannot bind his successor—although I think we have all had regard, and great regard, for the views of our predecessors. But if such an appointment could be made under this clause—and the Lord Chancellor says that no such appointment would be made—then it is clear that the power given by the clause goes wider than is required. I ask the noble and learned Lord the Lord Chancellor to consider restricting it to what is necessary or, if I may use the word, expedient.

There is perhaps another danger in the clause as it now stands. The time may come in the future, as it has in the past, when the Lord Chancellor thinks it essential that the number of High Court judges should be increased. It is not always very easy to get the Treasury to agree. This clause, and Clause 22, may make it easier for the Treasury to resist. They may say, "We are not satisfied that there is a permanent need for more High Court judges. You can appoint someone a temporary High Court judge. Do that; and then if the pressure of work falls off in a few years, you can get rid of him." Or they may say, "Get a Circuit judge to sit as a High Court judge." Am I right in thinking that a Circuit judge sitting as a High Court judge will not get the rate for the job?

It is clear, I think, that a temporary High Court judge will get such remuneration as is fixed by the Lord Chancellor. But if that is the position, I can see the Treasury pressing strongly for getting a Circuit judge or a temporary High Court judge, rather than enlarging the establishment for proper High Court judges. It would be a bad thing—and I am sure that my noble and learned friend the Lord Chancellor will agree—and would go some way towards undermining the position of the Judiciary if, in years to come, the High Court Bench were to be constituted partly of permanent High Court judges, with their present security of tenure, and partly of temporary High Court judges and Circuit judges.

I am sure that my noble and learned friend will say that there is no such intention. I am sure there is not. But surely one must examine these clauses not just in the light of present intentions but to see what exercise of power they will permit. And if I am right as to present intentions, and also as to what this clause and Clause 22 will permit, I think the case is made out for saying that these two clauses go far wider than is necessary. For years we had commissioners appointed to try divorce cases, commissioners then fulfilling the functions of High Court judges. There were those who doubted the validity of those appointments, which were, I think, intended to be temporary. Yet, as I say, they carried on for years. I do not wish to criticise the work that those commissioners did. It was, as I have said, work which at that time was done by High Court judges; and the device of appointing commissioners was adopted to avoid the appointment of a considerable number of permanent High Court judges.

It was not, however, a satisfactory system. It was much criticised. Litigants with High Court cases expected to be tried before a High Court judge and not before a barrister appointed to act as one. This provision for appointing persons to act temporarily as High Court judges should be limited to appointments of very short duration; and the number of times that such appointments are made should also be strictly limited.

I have not the least objection to the Lord Chancellor having the power to appoint someone to act as High Court judge in an emergency, whether he be a barrister or a Circuit judge. But this is a power of which the exercise should be infrequent, and the persons appointed should act only for very short periods. But no such limitations are included in this clause: it is of a general character. I suggest to my noble and learned friend that this clause would be much improved if it contained a limit of time for which such persons can be appointed and also, rather than the power to appoint temporary High Court judges, the power to appoint commissioners to act as such.

I have not put down Amendments to this clause. I hoped that there would be a general debate on this question in which my noble and learned friends could take part. I shall await with interest what my noble and learned friend has to say; but I must tell him that, unless I am satisfied with that reply, I shall almost certainly put down Amendments for the Report stage, which I hope will be taken at an earlier hour, so that perhaps we can have a fuller and better debate on the subject. I shall not seek to delay the matter now; but certainly it is my view (I may be wrong) that this clause is far too widely drawn. I hope that my noble and learned friend will say that he will look at it again and will endeavour to restrict it to no more than what is necessary to provide that measure of flexibility that is essential.

May I ask one further question? The Lord Chancellor can appoint under this clause any person who holds office as judge of the Court of Appeal or of the High Court, or a Circuit judge. Does that mean that he can appoint as a temporary High Court judge one who is retired because of the age limit fixed by Parliament? I am not clear whether it permits of that or not, but I must say that I have some doubt as to the general desirability of such appointments; and some doubt as to whether it is not flying in the face of the wishes of Parliament when Parliament has declared the retiring limit.

7.30 p.m.


I think it would have been more convenient had my noble and learned friend Lord Dilhorne given me notice that he was going to make such a considerable speech on this particular topic at this stage; in which case I would have considered either any Amendment which he had seen fit to propose or any argument he had seen fit to adduce. But it strikes me that he is making rather heavy weather of this, despite his implied or expressed threat to put down Amendments on Report stage. One would hardly have gathered from what he said that nothing contained in this clause adds one whit to the powers which have existed in the Crown at the advice of the Lord Chancellor for the last five centuries. One would think that some important constitutional innovation was proposed.


Does the noble and learned Lord say that there has been power to appoint a man a temporary High Court judge? There has been power to appoint a man and ask him to act as one, but not to appoint him as a temporary High Court judge.


If my noble and learned friend will be patient with me for a moment, I think he will see that what I was intending to say was a complete answer to his question. There has always been power in the Crown to appoint a commissioner, so far as I know without limit of time, to exercise all the jurisdiction of a High Court judge and to pay him whatever fee or remuneration was thought appropriate by the Treasury authorities. That is the power under which they are appointed now.

The only reason why this clause was introduced is because a commissioner implies a commission, strange as it may appear, and as there will be no more commissions, if this Bill is passed, there can be no more commissioners. If my noble and learned friend dislikes the phrase "temporary High Court judge", I am quite prepared to think of another name. I had originally thought of calling them commissioners myself, but I was told that it would be inappropriate to do so because one of the main purposes of this Bill is to abolish commissions. Like the noble and learned Lord, Lord Gardiner, I have a dislike for introducing new names for things which do not exist.

If my noble and learned friend really thinks it is worth making a tremendous issue of whether they are called temporary High Court judges or not, or something else, I am quite prepared to think of another name for them. But I am certainly not prepared to admit that any important issue of principle arises on this clause at all. As for the suggestion that there should be a time limit fixed on their appointment, when it is not suggested for an instant that any Lord Chancellor in the last five centuries has committed an error in respect of that, I would only say to my noble and learned friend that I should have thought that any reasonable limit of time, which would have to be a maximum, might be treated by an errant Lord Chancellor in future as an invitation to do wrong and to appoint up to that limit. If my noble and learned friend is so suspicious of the Treasury—about which I am not at liberty to speak now for obvious constitutional reasons—I should have thought it an invitation to the Treasury to do precisely what he was afraid of.

I can only say that I think my noble and learned friend has raised a number of perfectly imaginary bogies. But of course I should pay attention, in deference to him, because, as he says, one always pays great attention to one's predecessors—and I hope that I pay as much attention to him as to any other individual member of the House. But I think that on this occasion he has raised a number of imaginary dangers which neither the drafting of the clause nor the purpose which it seeks to serve really justifies, on reflection. Although, as I say, I was not given previous notice of this and can therefore give only my own immediate reaction, I will certainly look at the matter again as he requests me to do; but I think that perhaps he is taking the matter far too seriously.


I am sorry that the noble and learned Lord the Lord Chancellor should take that line. I do not think that I have taken this matter far too seriously at all. I think that this is a serious and important provision. I may be wrong, but I think I am right in saying that it is the first statutory provision of its kind, and it gives a power which we should certainly examine. The commissions were issued for assizes, and those in the commission could not carry on beyond the one assize. Therefore, you had some implied limitation of time in relation to commissioners of assize. I think I am right in saying that this is the first time a statutory power has been given to appoint a person to act in this way, and it is surely right to examine it to see that no greater power is taken than is required.

It is also, I think, quite novel to appoint someone who will be called a High Court judge and who will bear that description although acting in a temporary capacity. I think it would be much better if such people were given some other title. I do not think it would matter a bit if they were called commissioners. They have been called commissioners up to now and everyone knows what a commissioner is. I do not think it matters a bit that commissions will not be issued in the future. I think they should have a title which is distinct from that of a High Court judge who enjoys security of tenure and who is there permanently. The noble and learned Lord the Lord Chancellor says that he will look at this again. I hope that on reflection—and I hope that he will reflect on it—he will see that there is more substance in it than he thinks at this moment. I will say no more about it at this stage.

Clause 23 agreed to.

Clauses 24 and 25 agreed to.

Clause 26 [Administrative and other court staff]:

7.37 p.m.

LORD MAIS moved Amendment No. 22A. Page 20, line 20, at beginning insert ("Subject to the provisions of this Part of this Act").

The noble Lord said: The Amendment in my name on the Marshalled List is a paving Amendment for Amendment No. 26A which also stands in my name. It would be convenient for me, and I hope for your Lordships, that I should take them together. It will save time, and time is the essence of the contract this evening. I have just finished a year at the Central Criminal Court and I would hasten to say, having regard to the comments on delays in dealing with cases, that I was not there awaiting trial. I was there in my capacity as a Sheriff and, as such, during that year I had ample opportunity to get to know all the staff at the Central Criminal Court, and at all levels, extremely well. That is what prompted me to put down this Amendment, for they are all, naturally, very disturbed and extremely anxious as to their future, their prospects, the basis upon which their salary structure will be dealt with and above all about their pension rights. They wish to know whether their transfer, or call it what you will, means that they will enjoy conditions no less favourable than those which they now enjoy. I am sure that such feelings exist in the staffs of other courts in the country as well as of the Central Criminal Court.

I am not in a position to comment on other courts, but I am in a position to comment on the feeling existing at the Central Criminal Court. When a transfer of staff takes place, whether as the result of a Bill such as we are now considering or because of a takeover as happens in commercial life, one of the essential points is that the staff who may be affected should know as soon as possible, and in as much detail as possible, the terms or conditions of employment that they may expect to receive when they have been transferred. The staff at the Central Criminal Court—again I am sure that this applies equally to other courts—are working under a good deal of pressure at the moment. The increase in crime in the country has thrown an enormous additional load not only on the Judiciary but also on the administrative staffs of the court. For that reason, if for no other, I feel that either the Bill should include a clear indication as to what their future holds, or, alternatively, some assurance should be given that they are not going to be worse off in future than they are now. They are a very loyal, conscientious and extremely hard-working body of men and women. I do not wish to press this Amendment necessarily tonight. I know that the noble and learned Lord the Lord Chancellor has done a great deal of work on this Bill and there is much more to be done, but this is a point which affects a large number of men and women. I beg to move.


I am sure that the Committee is grateful to the noble Lord, Lord Mais, for raising the question of the Old Bailey staff, which is not perhaps quite the same as that of the staffs of all local authorities but certainly raises similar problems. The reason the Bill is framed in its present form is because I think—and I dare say that on reflection the noble Lord will agree—that it is wrong in principle to provide for a compulsory transfer. The provisions of the Amendment, as drafted, really proceed upon the basis that there is a compulsory transfer from, a local authority to central Government. But this is not like the automatic and compulsory transfer which took place between different authorities in the London area under the London Government Act, which the noble Lord will remember.

I think—and I hope that on the whole I shall be supported on this point—that it is better and simpler to invite staff to transfer on the basis of assurances, and assurances have already been given to the effect that we shall wish to invite all full-time court staff to transfer and give special consideration to the position of part-time or temporary staff. All staff so invited will be expected to continue at their present posts on the appointed day, if they accept, and if the salary in their present posts is higher than the national Civil Service grade to which they are appointed they will be entitled to retain their existing pay and incremental progress. These matters can be handled administratively with the least possible formality consistent with governmental procedures and I think there would be no advantage in writing into the Bill more far-reaching but less specific requirements.

At the same time, I should not be willing, at this stage at any rate, to require the Government to continue all existing posts for an unspecified period in a situation of which the full implications cannot be known. The Central Criminal Court is in some ways in a special position in this respect, and one would have to study it in depth and in detail before one were to give an assurance to that effect or write it into the Bill. Secondly, though it is my intention to preserve salaries and pension rights so that individual officers do not suffer when they become civil servants, I could not give a blank cheque to cover all circumstances. For instance, if the intention is to safeguard salary increases, including cost of living increases to which an officer would have been entitled after the the appointed day, the Government could not agree in all circumstances, though we hope to preserve existing salary scales where appropriate, and in moving from one superannuation scheme to another it would not be possible to make new pension terms comparable in every little respect, although, again, our intention is to ensure that individuals in general are not worse off.

I hope that the noble Lord, on reading in Hansard the assurances which I have been trying to give him, will be prepared to think that they are reasonable and, at this stage at least, not to press his Amendment. I have every intention of satisfying the people who wish to transfer. Indeed, from my own point of view it would be a disastrous thing if, having invited them to transfer, they felt in any way that the proposed new service was unacceptable to them. Obviously my desire is to get them all to agree, but I think that the particular Amendment proposed is more appropriate to a case of automatic transfer than to a voluntary transfer. I hope that the noble Lord will accept what I have said in the spirit in which it is offered.


The noble and learned Lord the Lord Chancellor has dealt fully tonight with a matter I raised in the course of Second Reading. I should certainly wish to study his statement, but I must say that I found it somewhat difficult to follow and not entirely clear. He began by saying that he would invite all full-time staff at the Central Criminal Court to transfer at a salary at their present rate of pay. Then, towards the end of his speech, he said he would seek to preserve existing salary scales where appropriate. I am not sure what these words "where appropriate" cover. If the noble and learned Lord would say this: that save in exceptional cases where factors might be such that he or anyone could not know them, his general principle will be that none of those who accept his offer to transfer will suffer a diminution of salary or prospects by reason of the transfer, I am sure that that would be entirely satisfactory.

I quite see that the noble and learned Lord cannot commit himself up to the hilt. I see the difference between an automatic transfer and a voluntary transfer. I think it is true to say that the staff of the Central Criminal Court are probably in a different position from the staffs in other areas of the country who would be affected by these offers. But I am sure that it would give great satisfaction if the noble and learned Lord could say that the broad principle would be that anyone who accepts the invitation to transfer will suffer no loss of prospects, salary or pension. If he says that that is the general principle, I think everyone would understand if there were exceptional cases which warranted a departure from that general principle. But I should like him, if he could, to say that, because I think it would be clearer than the statement he has already made.


I hope that in whatever the noble and learned Lord says he will not suggest that the court staff employed by the City of London are to be treated in any way differently from the staffs of the Central Court in Manchester or of any other large courts. There clearly would be no reason for giving any special preference to the staffs employed by particular local authorities.


Dealing with the last point first, I am certainly not trying to give preference to anybody. These questions of structure and pay are extremely complex and therefore one has to be very careful about what one says. But preference was not in my thoughts, justice, equality and fairness of treatment were, and I was having regard to the differences that may exist between the structures of different courts. I think that if my noble and learned friend reads afterwards what I said, he will see that I have gone as far as I can. My understanding of the effect of what I have said is exactly what he sought to put upon me—that is to say, that people who are receiving a salary and are invited to transfer and who accept the transfer will be no worse off as a result of their choice. One is dealing with temporary and part-time posts as well as full-time posts, and it may well be difficult to make an exact comparison. Therefore I should prefer my words to remain as I originally uttered them. But my understanding of it is that in substance they give my noble and learned friend what he is asking.


I am grateful to the noble and learned Lord the Lord Chancellor. I had in mind particularly the full-time staff. I agree that the position with regard to the part-time staff may be very difficult, and each case will probably have to be looked at on its merits. I had not in mind the Crown Courts in Manchester and Liverpool, but there is a line to be drawn between those places and, one might say, the courts of quarter sessions where some of the staff work with the local authority as well as at the court. For my part, I am quite content with what the noble and learned Lord the Lord Chancellor has said.


I thank the noble and learned Viscount, Lord Dilhome, for the support that he gave me on this matter. I hope that I did not give the noble and learned Lord the Lord Chancellor the impression that I was asking for preference for the Central Criminal Court. I spoke of the Central Criminal Court because I have first-hand knowledge of it. I mentioned that the same argument could apply to other courts. I would not dream of asking for preferential treatment. I merely referred to that Court because there I know what I am talking about, and I do not know what I am talking about in regard to other courts. I should like to thank the noble and learned Lord the Lord Chancellor for the reply he has given. I do not think, in the circumstances, I could have expected more. I did not expect him to write into the Bill a contract of employment. I am more than satisfied with what he has said, and I am quite sure that the staff at the courts in general will also, if they read it, take comfort from it. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 26 agreed to.

Clause 27 [Provision of accommodation]:

7.54 p.m.

LORD GARDINER moved Amendment No. 23: Page 20, line 31, after ("State") insert ("for the Environment").

The noble and learned Lord said: The design and building of a law court is necessarily different from that of any other building. The Lord Chancellor has always been responsible for seeing that we have enough and proper county courts, and they have been built for him by the Ministry of Public Building and Works. I have had some experience of those buildings: I think they are extremely well done. The Ministry know exactly what the requirements are. No unnecessary money is spent on the buildings, but they are adequate.

In the case of courts of assizes, quarter sessions and magistrates' courts, the plans have to be passed by the Home Office, who also have to provide the loan sanction. There one sees the most extraordinary things. I opened new county courts where each court was dominated by the most enormous dock that I have ever seen. It was tremendously high, like a fortress, and they said: "Well, we were told that the dock ought to accommodate 18". I am rather unrepentant about docks, which I do not like, any- how. I do not know of any other country which has a dock. In other countries the accused person sits with his lawyer. And I know more than one recorder who, by arrangement with the chief constable, has quietly had the dock removed; and nothing awful seems to have happened. In those same courts the bench was so high and wide that it was necessary to have a sort of telephone to communicate with the clerk, who was way down below. And the bench was so high and wide that the barristers and solicitors sitting in the front row could not see the faces of the justices, and so had no idea of the effect that a witness was having on the court.

I remember another building, which I think cost about £1½ million—two courts of quarter sessions, three magistrates' courts, two county courts and a coroner's court. This is good, because you get economies of scale and you can afford to provide a proper cafeteria for the public. I was then only laying the foundation stone, but I looked at the plans, and I looked at the court of quarter sessions. The place of honour in front of the bench was given to the Press. The witness was between the judge and the jury, so the jury who had to decide which witness was telling the truth could see only the side of his face, and in the case of those jurors nearest the bench they could see only the back of his head. The dock was behind the Press. Practically everything was wrong. The courts were not being wired for sound, although, as the noble and learned Lord knows, the biggest single cause of delay in the Criminal Division of the Court of Appeal is the months it has to wait to get a transcript because of the shortage of shorthand writers—and this is why we are gradually going over to tape.

Therefore I was frankly upset when I first read the Bill and found that the man who was going to secure proper sites and see that the buildings were properly designed—because the local authority architect had never built a law court before, and he would not know—was apparently to be the Home Secretary. It was only as a result of a chance encounter with a member of the Lord Chancellor's office outside the Chamber just before Second Reading that I was told: "No; it is not the Home Secretary: it is the Secretary of State for the Environment"—though he did not actually exist when the Bill was published. Allowing that I am more stupid than most people, all I say is that if, having been a lawyer all my life, and having been Lord Chancellor, I can misunderstand the Bill on that point, it is possible that other people may.

This comes entirely from the habit that whenever you refer to a Secretary of State in an Act of Parliament you must on no account tell the citizens whom you mean. We never do. I believe that originally there were only two, the Secretary of State for Home Affairs and the Secretary of State for Foreign Affairs, and that was fairly simple. Over the week-end I read in an encyclopedia published in 1935 that we then had no fewer than six Secretaries of State. Now we have ten. I may be old-fashioned in thinking, as I do, that Acts of Parliament ought, if possible, to be so worded that ordinary educated people can understand what they mean. Why should it be necessary for somebody to go to a solicitor to find out which Secretary of State a Bill is referring to? And the solicitor will not be able to tell him; he will have to ring up the Lord Chancellor's office, or somebody, to get to know.

I do not want to make a false point. There is no difficulty in suing the right Secretary of State, because the Crown Proceedings Act provides that if you are in doubt as to whom you can sue you ask the Treasury, and sue whatever Ministry the Treasury say you are safe in suing. This might arise in all sorts of ways. Somebody might want to requisition a site for a law court, and then: might be a dispute, two men or two companies having an interest in the site, as to what their respective interests were. Some judge deciding that might refer to the power, as it stands, of the Home Secretary. How would the Court of Appeal know that the judge was wrong? It is no good saying: "Oh well, they told the Court of Appeal: On the Second Reading of the Bill the noble and learned Lord the Lord Chancellor said that this was a reference to the Environmental Secretary'." The judges are not allowed to react Hansard, and they are not allowed to be told what is in Hansard. It might well be said that they have read the Royal Commission Report and have seen what was intended. But, apart from the fact that the Royal Commission did not have in mind any such man as the Environment Secretary, of course the judges are not allowed to read the Reports.

I would submit that where (and it is a bad habit) an Act of Parliament refers to a Secretary of State, it should say to whom it is referring. I was thinking of this partly because I happen to be addressing the Statute Law Society to-morrow night, and I was wondering what the noble and learned Lord the Lord Chancellor would say. I have been able to think of only two things. One is that if you go back to Tudor times the constitutional position is that the Secretaries of State were the King's secretariat, and the King's secretariat cannot be divided—indeed, the Interpretation Act makes it plain that any Secretary of State can do anything in law that any other Secretary of State can. It is true even to-day, because of this constitutional theory, that while the number of Ministers a Government can appoint is limited, the number of Secretaries of State is not, because that is an exercise of the Royal Prerogative.

Whether or not, as a matter of theory, all that is right, Parliament can do what it likes; and there is nothing in this which would make it in any way either impossible or improper for Parliament to insist that if the Government are going to pass Bills referring to a Secretary of State they should say whom they mean. It seems to me clear that the words "Secretary of State" in some cases mean the Secretary of State for the Environment and in others the Home Secretary. The only other answer I can think of is that the Parliamentary draftsmen have always adopted this as a convention because it might save them trouble if some other Government rearranges the machinery of government. They then would not have to put in a clause saying: "For this Secretary of State read that one." When I say, "save them trouble", I am not suggesting that they are doing it for any sort of personal motive. They are shorthanded and their time is valuable to the country. But surely the ordinary citizen is entitled to be told in an Act of Parliament what it means.

I agree that if there is some complicated financial clause, which may need intricate wording, one cannot carry this to a final conclusion. So far as possible, unless there is any real, solid reason against doing so, Acts of Parliament ought to say what they mean. Here is a clear, simple example. I am well aware that this practice has existed for some time. I am well aware that for a period of years Parliamentary draftsmen have held their ground on this—that we must never let the citizen know what Secretary of State it is that we are talking about. I suggest that it is about time that we did. I beg to move.

8.2 p.m.


Of course there is a great deal, as there always is, in what the noble and learned Lord has said, although he rather paved the way for the answer to the criticisms which he has delivered in the context of this particular clause. His fears, so far as they are material, are wholly imaginary because I cannot visualise, as he could, a circumstance in which a solicitor, or a client, would particularly wish to know for any purpose which particular Secretary of State was being referred to, since under modern constitutional practice he would be in order in sueing, "The Secretary of State", and if the Crown wished to alter the title of the action, I have no doubt that they could do so.

The noble and learned Lord was perfectly correct in saying that, under a constitutional convention, which may have its uses and which is open to criticism, the office of Secretary of State is one, by an Athanasian doctrine, under which you may divide the persons, but you must not confound the substance. The history of the matter is contained in a very short passage, with which I will not weary the House more than the words require, and this is set out in a judgment of a former Lord Chancellor, Lord Campbell, when he was Lord Chief Justice, in a well-known case in which he says about the office: The office of Secretary of State is one of a very ancient date. He was in fact the King's private secretary with the custody of the King's Signet, and was the ordinary channel of communication between the Sovereign and the subject. The duties of the office until the reign of Henry VIII were performed by a single person— not two persons, as the noble Lord may have implied. Then until the reign of George III there were generally two who equally each did all the duties of the office according to a geographical division of the globe". The fact is they were not divided logically as one would expect into home and foreign. Since then until very lately there were three, having three separate departments, home, foreign and colonial. Then he added: Now a fourth is added for war. They are all appointed as the single Secretary of State formerly was by mere delivery to them of the seals of office, each being capable in point of law of performing the duties of all departments, and the offices still being so much considered one and the same that upon a removal from one department to another a Member of the House of Commons does not vacate his seat. In those days they had to do that on assuming a different office.

So far as a change of function is concerned, to which the noble and learned Lord also referred, he is mistaken in thinking that the Parliamentary draftsmen attach much importance to that, because changes of function can be dealt with under the Transfer of Functions Act without a new Statute nowadays. Therefore, the Secretary of State for the Environment could be recreated Minister of Works overnight and this probably could be done with a stroke of the pen.

There is a good deal in the noble Lord's constitutional argument, but I do not think, on reflection, that he would wish to press me to alter the conventions of the constitution—Clause 27 of the Courts Bill—because it is of wider implications than that. There are advantages in the doctrine that Secretaries of State may each perform the functions of the other. When I was Secretary of State for Education and Science, I was able to perform some of the functions of the other Secretaries of State when they were on a little well-earned leave. This did not even require a transfer of function; it simply could be done by virtue of the fact that I was a Secretary of State. So there are advantages as well as disadvantages.

I have not yet said, but I will now say—even if it is unnecessary—that the noble and learned Lord is right in thinking that the Department which will have charge of the construction and design of courts is the Department of the Environment, of which the old Ministry of Works is a small component part. I may add that I wholeheartedly agree with what the noble and learned Lord said at the commencement of his remarks about the design of courts. I was intending much the same thing, though I expressed it less well, on the Second Reacting of the Bill, when I referred to the importance of design. I started out with the idea, when I was looking for courts, that a box would be good enough, with various pieces of furniture for the Bench and the witnesses, but I soon found out how wrong I was. I am grateful to the noble Lord for his disquisition on the defects of design which courts sometimes have. I wholeheartedly agree with every one of them. I hope, therefore, that he will not press me too hard to-night. I have agreed candidly that there is much to be said for this constitutional doctrine, but it is pressing me rather hard to ask me to accept an Amendment which alters the whole conventions of the constitution in this particular context.


I do not want at this stage to change the convention. I agree that this is not the Bill by which to do it. The noble and learned Lord has not disputed my proposition that, without altering the convention, if Parliament chooses to specify the Secretary of State who is referred to there is nothing whatever to prevent it from doing so. I still think it is intolerable that a citizen of intelligence, who reads the Bill, and wants to make some representation to the relevant Secretary of State about something contained in the Bill when it becomes an Act, has to spend money on going to his solicitor to find out which Secretary of State it is. The solicitor has no means of knowing, except by ringing up a Government department and asking them. It is not for the Government to tell the courts what Acts of Parliament mean; it is for the courts to tell the Government. This is not the right way to draft legislation.

I will not press this Amendment to-night, but I should be grateful if the noble and learned Lord would think about the matter with a view to an Amendment on the Report stage. In Acts of Parliament we ought, so far as we can, to try to say what we mean. If here we mean the Secretary of State for the Environment I cannot see any reason why we should not say so. Subject to that, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

8.9 p.m.

LORD GARDINER moved Amendment No. 24: Page 21, line 8, after ("for") insert ("the").

The noble and learned Lord said: It seems to me that there is a word left out here. I do not want to take up the time of the Committee, and I think the noble and learned Lord will know whether or not that is so. I beg to move.


The noble and learned Lord is quite right: a word has been left out. He is also right in thinking that the word "the" has been left out. Unfortunately, his Amendment puts it back in the wrong place. I ask him not to press this Amendment now, and I will set that it is put right on Report stage.


I am much obliged. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 27 agreed to.

Clause 28 agreed to.

Clause 29 [Advisory committees]:

8.10 p.m.

LORD GARDINER moved Amendment No. 26: Page 21, line 26, leave out ("may") and insert ("shall").

The noble and learned Lord said: We live in days when public relations are very important, and of course in the field of the law it is the client who really matters. In that respect we should all agree with what the noble Lord, Lord Tangley, was saying the other day: that it is the clients' interests that matter. Indeed, I remember that in the last Administration when somebody raised the question of what is the definition of a "profession", I said, "The only definition of a profession' I know is that it is an occupation in which those who follow it are always giving advice contrary to their own interests". I suppose there is no barrister who has not at some time lost a client by urging him strongly to settle a case instead of fighting it, although clients sometimes begin to see that they are getting professional advice when one points out to them that if the case is settled the barrister will get no more money at all, whereas if it goes on he hopes that a lot of guineas will be transferred from his client's or his opponent's pocket to his own. But we all agree that it is the client who matters.

The Royal Commission, having that in mind, said with reference to advisory committees, in paragraph 325 of their Report—the subject occupies some paragraphs but I will quote just one or two sentences: We think it is a shortcoming of the present system that, however good may be the informal relations between the staff of courts and members of the legal profession and others concerned with their work, there is no recognised machinery for discussing common problems. Then the Report says: The administration of justice probably brings together as wide a range of different professions and interests as is to be met anywhere in the public service. One of the primary tasks of the new court service will be to ensure that the abilities of all those who attend the court, whether they be judge, advocate, probation officer, one-day juryman or witness, should be used as effectively as possible with due recognition of the fact that many of them have other pressing calls on their time.

After further reasons are detailed, it is strongly recommended that there should be advisory committees. The Report continues: We regard it as essential for these committees to be aware of their responsibility for providing information and advice, as well as criticism. Their existence should give the court staff early information of any problems occurring in their circuits and should also provide the Lord Chancellor with knowledge of general sources of difficulty.

The present clause says that the Lord Chancellor may appoint advisory committees. I know, of course, that the cases which have sought to distinguish when the word "may" means "may" and when it means "shall" are extraordinarily difficult to reconcile. But the object of this Amendment is simply to inquire from the noble and learned Lord the Lord Chancellor—I raised the point on the Second Reading, but, understandably, he had not time to deal with it—whether this provision means he really is going to appoint these advisory committees, or whether we are to be left in doubt. The Royal Commission were very emphatic that these committees, who include representatives of the general public, the police, the prison and probation services and so on, should be appointed at least on each circuit. I beg to move.


I am happy to give the noble and learned Lord the assurance for which he has asked, and I apologise for not replying in the course of my rather lengthy reply on Second Reading to this particular inquiry which he addressed to me. I shall begin, I hope, by appointing at least one committee for each of the six new Circuits. The terms of reference will be within the discretion which I shall retain, but are likely to include the following matters: first, delays at a particular court centre indicating a case for allocating more resources, particularly judge-power, to that centre; second, arrangements at a court for the listing of cases—the committee might well consider that in particular cases these were less than satisfactory and that closer liaison was needed between the staff of the court and the local solicitors and so on; thirdly, accommodation, especially that of consultation rooms and telephones for the use of the legal profession; and fourthly, notifying the parties of the time and place of trials. They might well, for instance, draw attention to the fact that the system was not working satisfactorily and that litigants were frequently being summoned overnight to attend hearings. I certainly intend to appoint them and see how they get on from there.

So far as the difference between "may" and "shall" is concerned, I really do not know the difference in an Act of Parliament. The happy rule upon which I worked in the House of Commons, and to which I should like to adhere now, is that where there is no legal sanction apart from Parliament—that is to say, where a court cannot intervene—you use "may"; and where it is intended that a court should intervene you use "shall". But I know of no judicial authority to support this rather brash proposition. There would be another reason for using "may" here. On any view, I have to be given the option between appointing one advisory committee and more; and that being so the "shall" might be void for duplicity if it were inserted; so perhaps the text had better remain as it is. As the noble and learned Lord's speech was a probing speech, it may be that he is willing to leave it at that.


I think that is very satisfactory, and I am much obliged to the noble and learned Lord. While we are on this clause, may I suggest one additional source from which perhaps members of a committee might be drawn, and that is editors of local Press? I throw that suggestion out only for what it is worth. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 29 agreed to.


Is Amendment No. 26A not moved?


I speak on behalf of the noble Lord, Lord Mais, to say that he apologises for not being in his place to say, "Not moved". He has an important engagement.

Clause 30 [Summoning of Jurors]:


This is an Amendment which is solely drafting, in order to correct somebody's lapsus calami. I beg to move.

Amendment moved— Page 22, line 8, leave out ("from") and insert ("following 'liable to serve on juries for the trial of all'").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 30, as amended, agreed to.

Clauses 31 to 33 agreed to.

Clause 34 [The ballot, and swearing of jurors]:

LORD GARDINER moved Amendment No. 28: Page 24, line 38, leave out subsection (7).

The noble and learned Lord said: This subsection reads: This section has effect subject to proviso (b) to section 1 of the Sex Disqualification (Removal) Act 1919 (under which a judge may order that a jury be composed of men only or of women only). That is the existing law, however rarely it may be used. It is contained in the Act of 1919 and in substance provides that a judge, either on application by one of the parties, civil or criminal, or on his own motion, may order a case to be tried by an all male jury or an all female jury. When I raised this point on the Second Reading the noble and learned Lord the Lord Chancellor answered by saying that this was a Bill dealing with courts and judges and so forth and that this provision merely represented the existing law. That is quite right, but is no good reason why we should expressly continue a law which ought not to exist. I cannot think that in 1970 it can be right to say that there are any cases which men as men are unfit to hear, or which women as women are unfit to hear. This seems to be a slight on both sexes and we ought not to continue it. I beg to move.


I should like strongly to support what my noble and learned friend Lord Gardiner has just said. It is significant that a "unisex" magistrates' bench is frowned upon officially, and it is held to be desirable that a magistrates' bench should always be representative of both sexes. Surely what the noble and learned Lord, Lord Gardiner, has said is true: that in these days there is absolutely no type of case which it is inappropriate for either sex to take part in hearing as a juryman or jurywoman, as the case may be. I hope very much that the noble and learned Lord, the Lord Chancellor, will see his way to take this opportunity of deleting this subsection, which is an anachronism that we now have an opportunity to remedy.

8.20 p.m.


I do not think this is an Amendment about which I feel strongly either way. My recollection of the days when I went as judge's marshal with Mr. Justice Roche was that he did, in fact, in unreported cases, order all-male juries to deal with buggery cases, bestiality cases and homosexual cases. I do not think he considered that women were unfit to try them, but I believe he did think that some women would wish to be excused from trying them because they were distasteful. And although I would agree that a bench of magistrates probably does not contain such women I think they probably do exist at the present day.

The curious fact (and I think probably even at this late hour I may be entitled to refer to it) is that I can find only three reported cases in which a one-sex jury was ordered. The first was the case of Vaquier, which will be remembered by your Lordships as a murder case in which Sir Patrick Hastings delivered a classical, and classically brief, cross-examination. Curiously enough, it was then urged as a ground of appeal that an all-male jury (I think it was) had been ordered; but the appeal was dismissed.

Then in the Last Exit to Brooklyn trial the judge voiced his doubt about whether or not to order an all-male jury, but counsel for the Crown submitted that as the issue was whether the book tended to deprave and corrupt any reader, women should contribute to the verdict on behalf of potential women readers. However, defence counsel demurred (I cannot think who the defence counsel may have been), and the judge then ordered an all-male jury, largely, it would appear, in order to save embarrassment in the jury room. I think he may have been right. I must say that I think the judge was put in an embarrassing position by the dispute between counsel and by the possibility that inside the jury room there might have been embarrassment.

The third case was Regina v. Sutton, when the judge ordered an all-female jury. That case concerned the manslaughter of a baby girl who died after being dipped in a bath of scalding water by her aunt, who acted in a fit of temper. In giving judgment on appeal the Lord Chief Justice is reported to have said that the court disapproved of the practice of ordering an all-women jury and it was better to leave the case to a mixed jury, even if it was a highly emotional case. If I may express my own opinion candidly, I have absolutely no doubt that in that case the Lord Chief Justice was right and the trial judge was wrong, and there should have been a mixed jury.

I will only say this: I think there may be cases when embarrassment can be caused or distaste may be felt by women who, therefore, may be, not unfit to try the case but not good jurors—because a reluctant judge is often a bad judge—and who may be rather reluctant to express their inhibitions on the subject in the publicity of a public court. Therefore if it were left to me I should probably mildly prefer to keep the provision as it is, on the condition that it is very rarely used; but I think perhaps we should be wise to consider it again on Report. I will take it back, because I am bound to say that I do not feel strongly either way but I should have thought the advantages were mildly in favour of retaining it. On the other hand, I should like to give it further thought.


I was going to ask the Committee to divide on this Amendment, but in view of what the noble and learned Lord has said I shall not do so at this stage of the Bill. Everything that the noble and learned Lord has said has convinced me that I was right. I think really this is perhaps more of an insult to women than to men. Subsection (2) provides for a right of objection to the summoning officer against serving on a particular jury or a particular case, and there is then a right of appeal to the court, so that anybody who feels like this can object.

This argument about embarrassment reminds one of the days when they used to say in the Inns of Court "Well, we could not have a High Court judge who is a woman because there is not any lavatory accommodation". That is the sort of standard argument used by men, and certainly no woman in this House has raised any issue of embarrassment. As for the Last Exit to Brooklyn, that is a strange contrast when I tried so hard to get extra women on the jury in the Lady Chatterley case, because I knew that it is not the women who are shocked; it is the men who are shocked.

Therefore, for all these reasons I hope that by the time we come to the next stage of the Bill the noble and learned Lord the Lord Chancellor may be prepared to accept this Amendment. In the meantime, I beg to withdraw it.

Amendment, by leave, withdrawn.

Clause 34 agreed to.

Clauses 35 to 43 agreed to.

Clause 44 [Matrimonial jurisdiction.]:


I think I am entitled to say that this is really a drafting Amendment. I beg to move.

Amendment moved— Page 31, line 2, after ("(1958)") insert ("or by section 2 of the Law Reform (Miscellaneous Provisions) Act 1970").—(The Lord Chancellor.)

On Question, Amendment agreed to.

On Question, Whether Clause 44 shall be agreed to?


On Second Reading I raised a question on this clause about the position in matrimonial cases. Again I make no complaint at all that the noble and learned Lord was unable to deal with it at that stage. The question which I raised was in substance this: will the effect of this clause be that the High Court judges will be able to overrule a decision of Parliament? The noble and learned Lord the Lord Chancellor may remember that there was a division of opinion in another place as to what constituted an undefended case. The decision which Parliament took was that if there was a dispute between husband and wife as to whether the marriage should be ended or not, that was a serious thing which ought to receive the attention of a High Court judge; but if they were agreed that the marriage should be dissolved, then ancillary matters of maintenance and children, which had in fact been dealt with throughout the country for twenty years by the County Court judges, should continue to be dealt with by the County Court judges. It has been said that some High Court judges did not agree with that and would like such ancillary matters to be dealt with by them, but to my mind the point is of primary importance because of the additional expense which, contrary to their will, may be imposed on two parties where the petition itself is not in dispute or, of course, if they are legally-aided cases on public funds.

I wonder therefore whether the noble and learned Lord the Lord Chancellor could tell us whether, as he understands the position, this clause may be used by the High Court judges to overrule that decision which was made by Parliament.


I think I can give the noble and learned Lord some satisfaction about this. He is quite right in saying that he raised it on Second Reading, and it was one of the matters that I passed by. Clause 44, which we are discussing, enables rules of court to make more extensive provision than is currently possible for a transfer of ancillary proceedings in matrimonial cases between the High Court and the divorce county court. The noble and learned Lord expressed his anxiety lest this provision should mean that ancillary proceedings would be unnecessarily transferred to the High Court, and he raised this matter on Second Reading. I think I can assure him that this will not happen. It is envisaged that the rules made under Clause 44 will provide for transfer only on good cause being shown, and I would certainly use whatever influence I have, which I am told is decisive in making rules of court, to prevent the will of Parliament from being overridden.


I am very much obliged.

Clause 44, as amended, agreed to.

Clauses 45 to 48 agreed to.

Clause 49 [Crown Court rules relating to costs]:


I think I can assure the Committee that this is a drafting Amendment. I beg to move.

Amendment moved— Page 33, line 40, leave out ("High") and insert ("Supreme").—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR moved Amendment No. 32:

Page 34, line 12, leave out from ("above") to end of line 15 and insert— ( ) Rules under this section may amend or repeal all or any of the provisions of section 47 above or of any other enactment passed before this Act about costs between party and party in criminal or other proceedings in the Crown Court.

The noble and learned Lord said: Although this looks formidable, I think I could simply assure the Committee that it is a technical Amendment, but perhaps I had better add a word of explanation. The effect of the Amendment is to enable Crown Court rules made under the section to amend or repeal enactments about costs in Crown Court proceedings other than criminal proceedings. It is necessary because there are various enactments about costs on appeals to quarter sessions in non-criminal matters which it may prove convenient to replace by Crown Court Rules (an example, for instance, being Section 24 of the Licensing Act 1964, which relates to the award of costs against appellants in liquor licensing cases), but the clause as introduced allows the amendment or repeal only of enactments about costs in criminal proceedings. I hope this explains the purpose to the Committee. I beg to move.

On Question, Amendment agreed to.

Clause 49, as amended, agreed to.

Clauses 50 and 51 agreed to.

Clause 52 [Financial provisions]:

On Question, Whether Clause 52 shall stand part of the Bill?


I wonder whether this would be a convenient moment to consider whether we proceed beyond this point. I know my noble friends Lord Merthyr and Lord Royle well enough to know that they would not have put down their new clause if they had not desired to see it take effect. I have no information as to why they are not here, but I imagine that it is probably the lateness of the hour. They could, I suppose, put the Amendment down at Report stage without any objection from the Government side of the House. Perhaps that might be the most convenient course. I only thought I should say something to protect their position, as they are not here.


We should have no objection to the Amendment being put down on Report. Perhaps I may say, on the Question, That the clause stand part, words which may diminish their desire to do so.


I think it would probably be helpful to know the intention of the noble and learned Lord or the noble Earl the Chief Whip as to whether it is intended to press on. If not, this might be a good breaking point.


I do not know whether noble Lords would consider it reasonable to spend another half hour with this Bill. We are very rapidly coming on to what one always comes on to in Committee stages, a vast number of detailed drafting Amendments which can be taken en bloc. I do not want to press the Committee beyond endurance, but I believe I may make considerable progress with another half an hour.

I do not know whether it would be in order, or convenient, to say something at this point about the choice of clerks to magistrates' courts committees, having regard to the fact that the noble Lord, Lord Merthyr, was not here to move his new clause after Clause 51. The effect of the existing provision of the Bill is that in all counties except Rutland the magistrates' courts committees are free to choose anybody they like as their clerk. In the boroughs and in Rutland (where, necessarily, there is only one justices' clerk) the justices' clerk is also clerk of the magistrates' court committee ex officio. If the original Amendment were accepted, the magistrates in a county would be obliged to choose one of the justices' clerks.

The reasons why the Government have doubts about the Amendment are, first, that it is not a necessary consequence of the changes in the administration of the higher courts which are the main purpose of the Bill, and it might be better considered when we come to consider the constitution of magistrates' courts, which, although I cannot promise it for this Session, is obviously one of the next stages in reform. Secondly, since county magistrates' courts committees are free to select anyone they choose, the objective of the Amendment can be achieved by persuasion, if the arguments are such as to convince most magistrates. And the Government would be reluctant to fetter the committees' choice, both on general principles and in view of the importance that the committees feel confidence in their clerks. Thirdly, the possible choice is not limited to serving justices' clerks and members of the county council staff. Some magistrates' courts committees might wish to consider, for example, a retired justices' clerk or, conceivably, a former member of the new court service; and the Government would not wish to prevent their doing so. When my noble friends read these observations, it may be that they will not wish to put an Amendment down on Report. But if they do, the Government will offer no opposition.


Just to add to what the noble and learned Lord has said, I think I am right in saving that if this Amendment were carried, nearly every county in the country, being obliged to appoint a justices' clerk to be clerk to the magistrates' courts committee, would be equally obliged to change the holder of that office and would be obliged to get rid of the present holder and substitute somebody else.

Clause 52 agreed to.

Clause 53 agreed to.

Clause 54 [Interpretation of this Act and rules of Construction of other Acts]:


Amendment No. 35 is a drafting Amendment. I beg to move.

Amendment moved— Page 37, line 33, leave out ("presiding judge") and insert ("judge presidin").—(The Lord Chancellor.)

On Question, Amendment agreed to.

8.40 p.m.

On Question, Whether Clause 54, as amended, shall stand part of the Bill?


The noble and learned Viscount, Lord Dilhorne, has had to go, but the noble and learned Lord the Lord Chancellor may remember that on Second Reading I raised the curiosity which Clause 54(2) is. The first paragraph seems to be natural enough; namely, Except where the context otherwise requires this Act applies in relation to proceedings on a coroner's inquisition and to matters arising out of such proceedings, as it applies in relation to proceedings on indictment and matters arising out of them. Then there follows this sentence: Except as otherwise provided, this subsection shall apply for the construction of any Act passed after this Act as it applies for the construction of this Act. These are the words which the Amendment of the noble and learned Viscount would have deleted, and I would respectfully ask the noble and learned Lord the Lord Chancellor whether there is here a precedent. I am used always to being told that there is a precedent for everything; so I suppose there is. But it seems most extraordinary to make a law that in any Act passed after this Act, the nature of which and the context of which we can naturally now know nothing at all about, this subsection is to apply for the construction of that new Act as it does for this Act.


The only precedent I can offer without further consideration is the Interpretation Act. It is a device which saves repeating the phrase "a trial on indictment or inquisition" throughout this Bill, and it was intended to provide that this long periphrasis should save trouble in any future Bill. I still think that this is a convenient clause. Noble Lords will of course be aware that proceedings on a coroner's inquisition as such are extremely rare, because what in practice happens—and I can speak from recent experience—is that if a coroner's inquisition brings in a verdict of manslaughter or murder, which of course they are capable of doing and which would ordinarily lead to an indictment, what then happens, for the convenience of everybody, is that the case is put through the ordinary committal stages of a magistrates' inquiry. If the magistrates' inquiry yields to the proposition that there is no case to answer, no evidence is offered on the coroner's inquisition, which then becomes a pure formality. This is a draftsman's convenient device; it is in fact an ancillary piece of statutory interpretation of exactly the same kind as the Interpretation Act was found to be. If noble Lords objected to it seriously as an unpleasant innovation I would not defend it; I would say, "Let it go". It is not going to affect the value of the present Bill. I personally should like to see it in.


The noble and learned Viscount and I will consider carefully what the noble and learned Lord has said.

Clause 54, as amended, agreed to.

Clause 55 agreed to.

Clause 56 [Short title, commencement and extent]:

On Question, Whether Clause 56 shall stand part of the Bill?


I also raised a point on Second Reading in regard to Clause 56(2). I do not want to deny the noble and learned Lord the Lord Chancellor any powers which he may feel he ought to have, but this goes rather further than anything I can remember. Subsection (3) says: Without prejudice to the other transitory provisions of this Act, any order under this section may make such transitional provision as appears to the Lord Chancellor to be necessary or expedient in connection with the provisions thereby brought into force, including such adaptations of those provisions or any provisions of this Act then in force, and such savings of the provisions repealed by this Act, as appear to him to be necessary or expedient in consequence of the partial operation of this Act (whether before or after the day appointed by the order). This seems to me to be a sweeping power, but I should not wish to stand in the way of the Lord Chancellor's having any power that he felt he ought to have. But I wonder if the noble and learned Lord can tell us whether this does not go rather further than one has been accustomed to seeing.


I am advised that I do need this power, and I can only offer the noble and learned Lord the explanation which I am given as to why it is needed. Clause 56(3), which is the substantial point on which the question arises, provides an additional power for use, if need arises, for the Lord Chancellor to make by order further transitional provisions—I emphasise that they are only transitional provisions—or to adapt existing transitional provisions. It also provides for savings for repeal provisions where this is necessary in consequence of the partial operation of the Act.

The implementation of the Bill will necessarily be a complicated process, and while every effort has been made to ensure that the transitional provisions are wide enough to cover likely eventualities, it is possible that further provisions or adaptations may have to be made in the light of the planning work which will have to be done after the Bill becomes law and before its implementation. I am advised that it is important, and that the provision should be retained as a necessary reserve power. But I assure the noble and learned Lord that I would consider drafting Amendments in order to make the meaning of this power clearer. That is the only explanation I can offer. It is one of those things which will die with the bringing fully into force of the Bill, and I hope it will not be necessary to use it.

Clause 56 agreed to.

Schedule 1 agreed to.

Schedule 2 [Holders of certain existing judicial offices]:

THE LORD CHANCELLOR moved Amendment No. 38:

Page 42, line 30, at end insert— ("9.—Subject to the preceding provisions of this Part of this Schedule, for the purpose of determining—

  1. (a) the annual pension payable to a Circuit judge under section 18 of this Act, or
  2. (b) any such derivative benefit payable to or in respect of him as is referred to in subsection (5) of that section,
service before the day appointed for the purposes of section 15 of this Act in any of the judicial offices specified in paragraph 1(2) above shall be treated as service as a Circuit judge.")

The noble and learned Lord said: This Amendment enables existing judges who are to become Circuit judges to carry their full pensionable service with them to the Circuit Bench. Since this is a statutory transfer it is right to make it plain that no pensionable service will be lost. The Amendment which I am now moving is the first paragraph of a longer Amendment which previously stood in my name. The rest of it I have withdrawn because I am advised that it was technically deficient. I propose, however, to add to Amendment No. 38 on the Report stage in order to deal with the respective liabilities of central and local Government for the payment of pensions where applicable. I think, however, that it would be right for the Committee to agree to this Amendment though not complete, in order that existing judges should be left in no doubt that their rights are to be fully preserved. I beg to move.

On Question, Amendment agreed to.

On Question, Whether Schedule 2, as amended, shall be agreed to?


I apologise for not having given the noble and learned Lord the Lord Chancellor notice that I was going to raise this point on the second Schedule and on pensions. That being so, I do not expect him to reply to-night, although he may be able to let me know the answer before the next stage. I found the pension position a little difficult when I was contemplating recommending the promotion of a chairman of London Quarter Sessions to be an additional judge of the Central Criminal Court. I discovered that he would have to leave ten years' worth of pension behind him. And when a judge was promoted from being an additional judge of the Central Criminal Court to be Recorder of Liverpool he had to leave part of his pension behind him. I believe that in subsequent Administration of Justice Bills we did our best to clear this point up; and were it not for the position in the City of London it would all now be quite clear, because they would all be paid by the central Government.

What I am not clear about at the moment is what is the effect of the City of London's paying, for example, the pensions of the Recorder and Common Serjeant, if the Lord Chancellor were minded to appoint the Common Serjeant as Recorder of Liverpool. Would the pensions be transferable, or what would happen? It always struck me as a silly arrangement that the right man could not be put in the right judicial position simply because his pension came from some different body from the body to which he was moving. I do not expect a reply to this point to-night. Perhaps the noble and learned Lord would be good enough to let me know before the next stage of the Bill.

Schedule 2, as amended, agreed to.

Schedule 3 [Premises formerly used for business of abolished courts]:

8.51 p.m.

LORD PARGITER moved Amendment No. 40: Page 43, line 17, at end insert— This sub-paragraph shall not apply to a council chamber, committee room, office or other room used for local government purposes but which may have been made available on occasions, whether regular or otherwise, for the sitting or other business of a magistrates' court.

The noble Lord said: I beg to move Amendment No. 40 standing in my name. The object of this Amendment is for the protection of local authorities generally. This is also the object of one or two subsequent Amendments I have put down. I know that it might be said that all Lord Chancellors will act reasonably in these matters. I also know that the present Lord Chancellor has always been eminently reasonable in everything he has said and done both here and in another place, and therefore one would have no hesitation in accepting his reassurance on a matter of this kind—because probably that is what his answer will be. The fact remains that as the clause is now drafted it would be possible for any Lord Chancellor within the first three years of a period of ten years to give a direction which would last for the remaining part of the time up to ten years, and which could very effectively exclude a council from using its own council chamber, or its committee rooms, or other parts necessary for the conduct of its business. It might be said that no Lord Chancellor in his senses would do anything like this, but a Lord Chancellor in very grave difficulties might do anything to ensure that the accommodation was provided in order that cases could be heard.

It is not sufficient merely to say that this would not happen, and I am moving this Amendment in order to make it quite clear that in no circumstances would a Lord Chancellor in the future use such powers of direction. In any case, it would be wrong to say that, because in the past local authorities have made their council chamber or other rooms available for the extra number of magistrates' courts required as a result of the increase in crime, they would be quite happy to do the same sort of thing in the future. They certainly would not want to do it under duress. I think it is most important that good relations should be maintained, and it should be made perfectly clear, and should be set out, that while a Lord Chancellor might require the cooperation of local authorities, he is in no sense in a position to direct them. I beg to move.


I appreciate the motives of the noble Lord, Lord Pargiter. I have been in discussion with local authorities on this matter and have written them an explicit assurance, which I now repeat publicly—an assurance which they asked me to give and with which I hope most of them, if not all of them, will be content—that it is not intended to use the power of direction to such an extent as to hamper in any way the work of the local authority. I hope that this assurance will be enough, so far as regards this period of transition.

The limitation proposed by the noble Lord in the Amendment is, I think, unacceptable. Many magistrates' courtrooms serve a dual purpose as court and committee rooms, and they serve it without serious inconvenience to either side. The Amendment might, if carried lead to argument over the use of ancillary accommodation. The position we have to get to with these premises which are used for dual purposes is one of amicable symbiosis by mutual toleration. Obviously this situation cannot be tolerated for ever, but I hope that during the transitional period local authorities will be content to accept an assurance from the Lord Chancellor that we shall not use our power of direction so as to hamper the work of the local authority. I do not think one has to look too far into the future and to possible future Lord Chancellors and their conceivable misbehaviour in the 21st century.


We have to look to a period of ten years, which is rather a long time, during which the direction could be enforced. I quite accept that there would probably be an amicable arrangement. I think that will always be possible. However, it is much easier to arrive at an amicable arrangement when both sides stand equal than when one side has a big stick and can threaten to use it if the other side does not agree to what it wants to do. That is the danger I want to avoid. Certainly the assurance the noble and learned Lord has given satisfies me personally, knowing his spirit of reasonableness, and I should be quite happy with it. Perhaps the fact that this point is now in the record of the House may make it acceptable, and I shall be happy, at this stage at any rate and at this hour, to withdraw the Amendment, subject to the fact, of course, that all parties are reasonably satisfied with the explanation which the noble and learned Lord has given. In those circumstances, and on the basis that the Amendment may be put down again, I shall be happy to withdraw it.

Amendment, by leave, withdrawn.

8.58 p.m.

LORD PARGITER moved Amendment No. 41: Page 43, line 45, at end insert ("or, in a case where it is not reasonably practicable to hire suitable alternative accommodation, such payment as would fall to be made if paragraph 3 of this Schedule had effect.")

The noble Lord said: The problem here is one where the Lord Chancellor can, by direction, exclude the local magistrates' court from sitting in their present court, and the direction can remain in force for up to ten years, so that they have to find some alternative accommodation. Somebody will say that the church hall is good enough for a magistrates' court. Well, I would respectfully suggest that the magistrates' court is an important court. The vast majority of cases come to the magistrates' court. It is true to say that nearly all cases come to the magistrates' court first, and it is highly important that magistrates' courts should be conducted with all necessary dignity. If they are deprived of the use of their existing courtroom it would in many cases be extremely difficult for them to find an alternative.

It may be said that when this position arises, the duty of the Lord Chancellor obviously is to direct that a new Crown Court shall be provided, rather than disturb the magistrates. I would remind your Lordships that in the kind of cases that come before the magistrates' courts now there may be a whole gang who are subject to very strict security requirements, and one cannot use any sort of place which is far removed from the cells from which the prisoners have to be brought, with all the risks attendant to moving prisoners to-day. Those risks are just as relevant to a magistrates' court as they are to a high court. I ask for the assurance—and that is what this Amendment would provide—that if suitable alternative accommodation is not reasonably available (and I am asking for reasonable accommodation) payment should in those cases fall to be made as if paragraph 3 of the Schedule had effect. This, in effect, would enable the authority to provide a new magistrates' court. I beg to move.

9 p.m.


Again I accept the principles underlying what the noble Lord has said. But of course Amendment 41 does not affect the power of the Lord Chancellor; it affects the compensation which is payable to the local authority. I accept, of course, that, where magistrates are turned out of their premises as a result of the Crown Court occupying them and they have to find alternative accommodation, they must be paid a reasonable sum to compensate them for the provision of the alternative accommodation. On the other hand, the effect of this Amendment would be that, if it were not practicable to hire, they should thereupon be paid a sum which was exactly the same sum as if the building in question were acquired.

It would of course be wrong in principle for the Department of the Environment—which would be the Department concerned—to make capital payment by way of compensation when no capital asset accrued in return. I do not think the noble Lord would expect that, and I do not think it is something which could ask my colleague to accept, either. It is difficult to conceive of purely temporary circumstances where totally new buildings would be necessary. The direction under paragraph 1(3) is intended to cover emergency situations in which the local authority would scarcely have time to build or acquire alternative accommodation. If the displacement of the magistrates is more or less permanent, that is probably something which would have happened anyway and is not a direct consequence of the Courts Bill.

If there is any further explanation which the noble Lord wants, or if there is some point that I have omitted in my reply, I shall be happy to consider it if he will communicate with me. The last thing I want to do is to leave a local authority out of pocket as a result of something that I have done to them because of the Courts Bill; that is to say, that they have been put to expense as a result of being displaced.


I am grateful to the noble and learned Lord for that explanation. I accept that it is difficult to say that a capital asset passes and is acquired. Obviously, the new magistrates' court would not have been acquired. What would have been acquired is the Crown Court which had previously been a magistrates' court, and that would surely be a capital asset which was accruing to the Crown. It might be argued that as all the loan charges had been paid off there was no question of any compensation, but I do not think that is a very sound argument in all cases. I would not accept that that was necessarily so in this case. It is a question of what it is reasonable to expect a local authority to do with regard to the provision of a magistrates' court.

In many cases it will be quite impossible to find suitable alternative accommodation. In fact, it may be far easier for the Lord Chancellor, with his greatly extended powers, than for the local authority, particularly since he will be operating in a very much wider area in the context of the type of building which he could acquire for the purposes of the Crown Court. So I hope he will not leave the matter so that he has to have a magistrates' court because it was a magistrates' court, and that he will look at the possibility of acquiring other buildings. If he will give that assurance, I think I shall be happy to leave the matter where it is at this stage.


I think I can give that assurance, but if I regret this afterwards I hope I may communicate with the noble Lord. Obviously, I am prepared to look at moving myself, as distinct from displacing the magistrates. What I am not prepared to do—and I must make this plain—when I take over a court is to pay for it as if I were acquiring Naboth's vineyard from Naboth. Some local authorities have spoken to me as if, when I took over an asset from them by a transfer of function, I ought to compensate them as if they were a private owner, when all I am really doing is removing from them a financial burden. They cannot have it that way, although I think I can give the particular assurance for which the noble Lord asked.


I quite appreciate the point which the noble and learned Lord has raised. On the question of the transfer of a building upon which there are no outstanding charges, this has generally been accepted with regard to the transfer from local authorities to the State, or vice versa. Therefore I do not suppose there is any reason for a change in this respect. If the local authority has to build a court because the Lord Chancellor has acquired one, the question of compensation obviously arises, and I know that that will be accepted in those circumstances. With that assurance I am happy to leave the matter where it is. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.


I think I said another half-hour and we have reached 35 minutes. I like to keep my bond as closely as that—more closely, if possible—and therefore I might move that the House do adjourn, unless the noble Lord wishes to speak.


It would be most helpful if we could get rid of the question of severance.


I will go on. I am eager to go on.


If this matter is taken on Thursday, as it might well be, I have to be in Strasbourg then and I should find it difficult for someone to move the Amendment. I beg to move Amendment No. 43: Page 45, line 10, after ("for") insert ("severance or other"). The object of this Amendment is merely to ensure that Section 7 of the Compulsory Purchase Act 1965 really operates in this case. I think it is the intention that it should, but what has been left out is the word "severance". The standard provision applying to the assessment of compensation on compulsory acquisition is that regard shall be had to the damage by severance of the land required or other injurious affection. There seems no reason why the word "severance" has been left out, and I would ask the noble and learned Lord whether he is prepared to insert it, in order that there can be no question of any difficulty arising on the interpretation of the Land Compensation Act. I beg to move.


I have inquired of the Parliamentary draftsman of this particular point. I am told that "injurious affection" is usually taken as including severance, and therefore the intention is to deal with severance, as the noble Lord wishes. I will again put it to the Parliamentary draftsman as to whether it should be put in expressly, but I am advised that it is unnecessary, and, if unnecessary, therefore undesirable.


If the noble and learned Lord will look at it again, I shall be happy to leave that one where it is and to move on to my last Amendment.

Amendment, by leave, withdrawn.

9.9 p.m.

LORD PARGITER moved Amendment No. 44: Page 45, line 20, at end insert— ("Provided that no such reduction shall be made in any case where rule (5) of section 5 of the Land Compensation Act 1961, applies.").

The noble Lord said: I shall be brief in moving this Amendment. The object here is this. There will be many cases where a court has been used partly as a Crown Court, or what will be a Crown Court, and partly as a magistrates' court. One might argue perhaps 50 per cent. either way. If the intention is to acquire this court for the purpose of a Crown Court, the problem then arises with regard to the magistrates' court, because in those cases, obviously, a new court will have to be provided. This is not now a question of acquiring temporary premises: the premises will actually go over to the Crown for Crown Court purposes, and a new magistrates' court will have to be provided. As the Bill is at present drawn, it might be argued by the Exchequer in regard to their responsibility (I am not saying that this would be the Lord Chancellor's responsibility: it will be the Exchequer's responsibility): "You have had only 50 per cent. use of the court therefore, on the question of the provision of a new court, you will be compensated only to the extent of 50 per cent. of the cost of the new premises." This would obviously be wholly unjust, because the building has to be provided anyway, and it will have to be provided only because the other court has been taken over as a Crown Court. I hope the noble and learned Lord will see the justice of this point, that the compensation must be the full compensation required to make provision for the new magistrates' court which will have become absolutely necessary. It is not a question here of "if" or "but": it means that a new court has got to be provided. I beg to move.


This is another of these very highly technical problems. The actual effect of the Amendment, which I could not accept, would be to give the local authority full compensation for reinstating a whole court building, including the court rooms used exclusively by the abolished courts. That I could not accept. On the other hand, if the noble Lord is concerned, as I think he is, from the remarks he made, that the compensation payable by the Government might not always cover the cost of reinstating the minimum number of court rooms necessary to enable displaced magistrates to carry on elsewhere, I think I can reassure him to that extent. In my view it would be wrong to pay compensation on a one-for-one basis where court rooms are patently under-used, since one has to consider what is the most economical means of providing equivalent accommodation. But I do not think we could argue, for example, that where you have two magistrates' court rooms, one of them used full-time and the other used half-time, the compensation should be less than the cost of reinstating the two whole court rooms, assuming that rule (5) applied. I think I have reassured the noble Lord about this. We intend to be fair. It is such a complicated subject that it may be that I have not gone the whole way with the noble Lord, but I rather think I have.


From trying carefully to follow what the noble and learned Lord said, I think that this is satisfactory. If there be two or three courts, to say that the Government must recompense a local authority for providing a similar building would obviously be ridiculous. The main thing is that they will pay for the building which is absolutely necessary for the purposes of the magistrates' court as it will be after the severance. If I understand it rightly, and that is in fact the intention, then I am perfectly happy to accept it.

Amendment, by leave, withdrawn.


Before saying that I do not propose to move my Amendment No. 45, may I just say that I observe that the only names on the Order Paper now are those of the noble and learned Lord the Lord Chancellor and mine. Although I shall put down Amendment No. 78 again on the Report stage of this Bill, I do not propose to move any further Amendments to-night, and I do not object to any of the Amendments which stand in the name of the noble and learned Lord the Lord Chancellor.

Schedule 3 agreed to.

Schedules 4 to 7 agreed to.

Schedule 8 [Amendments of other Acts]:


No. 46 is a drafting Amendment brought about by a printing error. I beg to move.

Amendment moved— Page 61, line 11, column 2, leave out ("presiding judge") and insert ("judge presiding").—(The Lord Chancellor.)

On Question, Amendment agreed to.


No. 47 is also, I think, a verbal Amendment. I beg to move.

Amendment moved— Page 63, line 42, leave out ("43") and insert ("40(3)").—(The Lord Chancellor.)

On Question, Amendment agreed to.


Amendment No. 48 is a technical Amendment. I beg to move.

Amendment moved—

Page 64, line 23, at end insert— ( ) In section 84(1) of the Judicature Act 1925 (power by Order in Council to direct location of district registries) for the words from the beginning to "Order in Council" substitute "The Lord Chancellor may by order contained in a statutory instrument". The amendment made by this sub-paragraph shall not invalidate any Order in Council made under the said section 84(1), and any such Order in Council may be varied or revoked by an order made by the Lord Chancellor under the said section 84(1) as amended. ( ) In section 99(2) of the Judicature Act 1925 (rules of court which may increase expenditure out of public funds) references to the Supreme Court shall not include the Crown Court."—(The Lord Chancellor.)

On Question, Amendment agreed to.


Amendment No. 49 is a verbal Amendment. I beg to move.

Amendment moved— Page 64, line 24, after ("210(1)") insert ("of the Judicature Act 1925 (council of judges to consider operation of Act)").—(The Lord Chancellor.)

On Question, Amendment agreed to.

9.15 p.m.


Amendments Nos. 50 to 60 are consequential Amendments on the abolition of clerks of the peace and are necessary because paragraph 11 of the Table in Part I of Schedule 8 (which substitutes for references to clerks of the peace references to the appropriate officer of the Crown Court) do not adequately deal with the text of Section 242 of the Local Government Act 1933.

I think we have now got to the stage when I can say that the remaining Amendments are either technical, verbal, consequential or drafting. I beg to move Amendments Nos. 50 to 60 en bloc.

Amendments moved— Page 65, line 11, at end insert—

("Local Government Act 1933

. In section 242(1) of the Local Government Act 1933 (examination of local authority costs for legal business by clerk of the peace) for the words from the beginning to "deputy" substitute "On an application made by the council of a county district to the appropriate officer of the Crown Court, the officer".")

Page 66, line 10, leave out paragraph 26 and insert— ("26.—(1) For paragraph 1(c) of Part I of Schedule 1 to the Legal Aid and Advice Act 1949 (proceedings for which legal aid may be given) substitute— (c) the Court of Appeal and the High Court. (2) In paragraph 3 of the said Part I for "a court of quarter sessions" substitute "the Crown Court". (3) In paragraph 1(1) and paragraph 2(1) of Schedule 3 to the said Act (remuneration of persons giving legal aid) for the words "the Supreme Court" substitute "the Court of Appeal or the High Court".")

Page 66, line 14, leave out from beginning to ("for") in line 15 and insert— (".—(1) For section 115(3) of the Representation of the People Act 1949 substitute the following subsection:— (3) A barrister shall not be qualified to constitute an election court for the trial of an election petition relating to any local government area in which he resides, or which is included in a circuit on which he practices as a barrister. (2) in section 123(1) of the said Act")

Page 67, line 33, at end insert—

("Licensing; Act 1964

.—(1) In section 28(3)(b) of the Licensing Act 1964 after the words "justices of the peace" insert "or the Crown Court".

(2) So far as section 193(1) of the said Act (disqualification of justices) relates to justices sitting in, or otherwise discharging the business of, the Crown Court, for the reference in that subsection to their acting in any area having a separate commission of the peace substitute a reference to their dealing (in the Crown Court) with proceedings which are related to that area in any way.

(3) For the purposes of the said Act that part of the county borough of Stockport which, at the passing of the Criminal Justice Administration Act 1956, formed part of Cheshire shall instead belong to Lancashire, and to the hundred of Salford in the same way as the remainder of the borough.")

Page 68, line 16, leave out ("before") line 32, at end insert—

("Matrimonial Causes Act 1967

. In section 7(1) of the Matrimonial Causes Act 1967 for the words "county court judges" substitute "Circuit judges" in the two places where those words occur.")

Page 70, line 10, leave out ("24(2)(b), 39")

Page 70, line 13, after ("(2)") insert ("(3), 24(2)(b)")

Page 70, line 22, leave out ("presiding judge") and insert ("judge presiding")

Page 70, line 29, after ("1(3)") insert ("and in paragraph 4(3)")

Page 70, line 33, leave out from beginning to ("for") in line 34 and insert— (".—(1) In section 4(2) of the Administration of Justice Act 1970 for the words "at assizes" substitute "in the Crown Court". (2) In section 43(1)(b) of the said Act")— (The Lord Chancellor.)

On Question, Amendments agreed to.

Schedule 8, as amended, agreed to.

Schedule 9 [Quarter Sessions Jurisdiction: Substitution of References to Crown Court]:


No. 61 is a drafting Amendment. I beg to move.

Amendment moved— Page 71, line 42, leave out ("56(2)(b)").— (The Lord Chancellor.)

On Question, Amendment agreed to.

Schedule 9, as amended, agreed to.

Schedule 10 [Transitional provisions]:


I beg to move Amendments Nos. 62 and 63.

Amendments moved—

Page 75, line 42, at beginning insert— (" . The repeal by this Act of provisions in Schedule 1 to the House of Commons Disqualification Act 1957 shall not affect the operation of section 4 of the Judicial Pensions Act 1959 (holders of high judicial office who are former holders of other judicial offices).").

Pave 77, line 2, at end insert— ("(2) Without prejudice to sub-paragraph (1) above, for the purposes of—

  1. (a) any stautory provision contained in or made or issued under the Local Government Superannuation Acts 1937 to 1953, the 925 Superannuation (Miscellaneous Provisions) Act 1948 or Part III of the National Insurance Act 1965, which is in force at the passing of this Act, and
  2. (b) except as may be otherwise expressly provided therein, any enactment passed after the passing of this Act whereby any of those Acts is amended, extended or superseded, and any statutory instrument which after the passing of this Act is made or issued under any of those Acts or such an enactment,
in any case where, at a time after the day appointed for the purposes of section 43(1) of this Act, a court of quarter sessions would, if this Act had not been passed, have been the employing authority in relation to a clerk of the peace, deputy clerk of the peace or other officer of the court who before that day died while serving, or otherwise ceased to serve, in that employment, or in relation to the widow or any other dependant of such a person, the relevant local authority, as defined in subparagraph (3) below, shall be treated as being at that time the employing authority in relation to that person or, as the case may be, to that person's widow or other dependant. (3) In sub-paragraph (2) above "the relevant local authority" means—
  1. (a) in relation to a person, or the widow or other dependant of a person, who was clerk of the peace or deputy clerk of the peace for a London commission area or who was otherwise an officer of the court of quarter sessions for such an area, the Greater London Council; and
  2. (b) in relation to any person, or the widow or other dependant of any person, not falling within paragraph (a) above, the county council which, immediately before the day appointed for the purposes of section 43(1) of this Act, defrayed expenditure of the court of quarter sessions concerned under section 29(9) of the Administration of Justice Act 1964.").—(The Lord Chancellor.)

On Question, Amendments agreed to.

Schedule 10, as amended, agreed to.

Schedule 11 [Repeals]:


I beg to move Amendments 64 to 77 en bloc.

Amendments moved—

Page 78, leave out lines 31 to 33.

Page 79, leave out lines 4 and 5.

Page 85, leave out lines 31 and 32.

Page 85, leave out lines 45 to 47.

Page 86, leave out lines 49 and 50.

Page 87, column 3, leave out line 22.

Page 87, leave out lines 29 and 30.

Page 88, column 3, leave out lines 2 to 4 and insert ("Section 30").

Page 88, leave out lines 12 and 13.

Page 89, column 3, leave out line 13.

Page 89, column 3, leave out line 18 and insert ("Section 19").

Page 89, column 3, leave out lines 19 to 21.

Page 89, column 3, leave out lines 25 to 27.

Page 90, leave out lines 27 to 30.—(The Lord Chancellor.)

On Question, Amendments agreed to.


I beg to move Amendments Nos. 79 to 91 en bloc.

Amendments moved—

Page 91, leave out lines 4 to 7.

Page 92, column 3, line 43, at end insert ("Section 242(2)").

Page 93, leave out lines 11 and 12.

Page 95, column 3, leave out line 51.

Page 98, column 3, leave out lines 38 and 39 and insert ("In section 38(e) the words "for the constitution, where requisite, of committees of quarter sessions as standing committees, and"").

Page 98, column 3, leave out line 58.

Page 99, column 3, leave out line 36 and insert ("Sections 16 to 21.

1965 c. 66. The Hire-Purchase Section 50.") Act 1965.

leave out lines 52 to 58.

Page 101, column 3, line 10, at end insert— ("In Schedule 5 the amendment of the Children and Young Persons Act 1933.")

Page 101, column 3, line 23, after ("Crown Court") insert ("at Liverpool")

Page 101, column 3, line 25, leave out ("1(3) and")

Page 101, column 3, leave out lines 37 to 40 and insert ("(2) and (3)")

Page 101, column 3, leave out line 43.

—(The Lord Chancellor.)

On Question, Amendments agreed to.

Schedule 11, as amended, agreed to.

House resumed: Bill reported, with the Amendments.