§ 3.20 p.m.
§ THE LORD CHANCELLOR
My Lords, I must apologise to your Lordships that the fortunes of Parliamentary business should lead me so often to intrude upon your Lordships' time. However, on this occasion I think we have moved across from The Mikado back to lolanthe. For the purpose of my present Motion, the Second Reading of the Courts Bill, I think I can claim to embody the law.
In 1873, when the Judicature Act was passed, a number of ancient and venerable courts were seemingly abolished, or rather amalgamated. There was the Court of Chancery, presided over by a long succession of Lord Chancellors. There was the Court of Common Pleas at which the sole right of audience was enjoyed by the Serjeants at Law, and where Mrs. Bardell brought her famous action against Mr. Pickwick. There was the Court of Exchequer, whose judges were called Barons and whose table was covered by a sort of black and white chess board. There was the venerable Curia Regis, the Court of King's Bench itself, at which Sir Thomas More, when he was Lord Chancellor, passing into Westminster Hall, used to kneel to ask for his father's blessing, for his father sat there as a puisne judge. There was the Court of Exchequer Chamber; there were the Courts of Admiralty, and the Ecclesiastical Courts at Doctors Commons. All of these had an ancient and honourable history. All, by the standards of the age, worked well.
But I would point out to your Lordships that none has been mourned, because the new Supreme Court into which 1246 all were merged maintained their traditions, continued their judgments and fused their jurisdiction. There is to-day, I believe, no one who doubts that by the Judicature Act 1873 the prestige of the English courts, the value of English Law and the service which the legal professions provided to the public were all vastly improved. As an historian of the period has said, the Judicature Act 1873 introduced by my predecessor, Lord Selborne, and traditionally supposed to have been drafted in his own hand without the benefit of Parliamentary counsel, was a classic-example of spectacular reform carried out by consent.
So, my Lords, it will be, I trust and believe, as the result of the Bill now before your Lordships if, as I hope, it soon passes into law. True it abolishes ancient courts of venerable antiquity and great distinction. Commissions of oyer and terminer and general gaol delivery will no longer be issued to the High Court Judges as they travel to the circuit towns, as they have done since the reign of Henry II, to hear criminal cases and to dispose of the list of civil causes. Quarter sessions, also of great antiquity—both borough and county quarter sessions—will no longer sit as such. The office of recorder is given in the Bill a totally new meaning from that which it has always had in the past. But, my Lords, if I thought that by introducing this Bill I was bringing to an end a tradition which has raised the prestige of English justice to a pinnacle from which it is admired all over the world, I would never have undertaken to stand godfather to it this day. But it will not be so.
The red Judge, as before, will still do justice in the circuit towns; although by virtue of the Assizes Order which has just been laid before your Lordships' House, a number of towns where there is little or no busines will next year, even independently of this Bill, cease to be visited by the judge of assize. Magistrates will sit as full judges in more appeals from courts of summary jurisdiction and on more trials on indictment in their respective counties and boroughs than ever they have done before. The Bar will continue to be divided into circuits. There will still be recorders to provide part-time judges and what now are called commissioners, but in the Bill 1247 are known as temporary High Court Circuit Judges. Indeed, until the new courts are built, putting as it were, flesh on the legal skeleton of legislation, I take it that an outside observer might see precious little different in the actual conduct of criminal and civil cases in the Provinces; though there will, I trust, be immediate benefit from more flexible administrative arrangements.
The abolition of assizes will carry with it certain inevitable consequences. There will no longer be commission days. Many of us will regret that the proper and agreeable ceremonies which have attended the opening of assizes may in the normal course no longer be seen. I hope, however, though this will depend largely on others than myself, that we may continue to have a due and proper amount of ceremony at certain times to mark the dignity of the law and, above all, the fact that it is the Queen in whose name justice is being taken to the people of this country in whatever places it is most needed. Just as we here in Westminster begin the new law year with a service for the Judges in the Abbey, and the Lord Chancellor's Breakfast in the Royal Gallery, I hope that on appropriate occasions early in the term there may be some similar ceremony in the main court centres, and that the disappearance of the particular commissions of assizes may be replaced by a commission of a more general nature which can be proclaimed in public with a suitable degree of ceremony.
But, my Lords, none the less there is a sense in which this Bill is a radical, even a spectacular, reform; the same sense as that in which the Judicature Act was such a reform. Its aim is to do for the criminal law and for the trial of civil causes and nisi prius what the Judicature Act did for civil litigation in the High Court. It aims to merge the old jurisdictions in the Supreme Court of Judicature and thus to provide a better service for litigants and those accused of crimes; but not to alter the substance of justice, the traditions of the profession or the standard rightly demanded of the Judiciary.
With very few exceptions it reproduces the recommendations of the Beeching Report—that is to say, those of the recommendations which require legislation; 1248 for a number of them (the appointment of circuit administrators and presiding judges, for example) require no legislation and have already been carried out. The basic need for a Bill of this character is seen by the arrears which have been building up in the courts for some years. To delay justice, my Lords, has been well said to be the same thing as to deny justice. Yet justice is being delayed, and the delays, I am sorry to say, are increasing. In the Central Criminal Court, for example, at the end of October there was a backlog of 701 cases. The Inner London Sessions were worse, with a figure of 1,438; and the other London Sessions were relatively also bad. In Liverpool, the backlog was 180, though it was a great deal better in Birmingham and in some other centres, where the criminal calendar had been disposed of at the expense of civil business. The figures for Liverpool represented an improvement as a result of improvising arrangements whereby five courts have been sitting continuously instead of intermittently. These are only examples.
Appendix 7 of the Beeching Report, which relates to 1967, when the situation was less bad than it is now, showed that 3,000 men and women charged with indictable crimes in Greater London, and of course rather more outside over the whole of the country, had to wait 60 days or more before their cases were tried at all—that is, 60 days or more after committal—which means that the charges had been hanging over them for far longer. The total for the country was 6,700 cases. More than 1,300 of these persons were in custody, and not on bail during the time of waiting. Since the Bill was on the stocks, I have heard it said by some who criticise the Bill that quarter sessions have been working relatively well outside London. So they have been; but, again using the 1967 figures, there is nothing to be complacent about even there. They had the less serious cases, and in 1967 about 13 per cent. of the cases, even there, had had to wait 60 days or more for trial on indictment. And that, in my judgment, is too much.
I do not wish to underestimate the extent to which we are short of courts, by which I mean the physical buildings, and of ancillary staff: the shorthand writers, clerks, ushers, gaolers—especially shorthand writers—without which justice cannot possibly be done. We are short. 1249 But when I came to attempt, as I am now doing, a crash programme in the interval before this Bill becomes law I found that for the present these are limiting factors. Nevertheless, the Beeching Commission established beyond a per-adventure that even the shortages of these adjuncts are exaggerated by time wasted on travelling to outlying courts; by courts' being situated separately rather than in batches; by the absence of administrative centres on circuit; by the excessive use of part-time judges and officials and by the multiplicity of responsibility between the centre and localities, between quarter sessions and assizes in the same locality, and between one locality and another on the same circuit.
It is not too much to say that the basic framework of sessions and assizes was laid down when barristers and judges, and sometimes attorneys, rode around the circuit on horseback, with their briefs in their red and blue bags and their circuit files in hampers. That was before the days of railway trains, let alone motor cars or aeroplanes. The variation in the total number of judges required to keep waiting time at a theoretical limit of 28 days was calculated by the Beeching Commission to vary between 13, if a given volume of work was retained at one centre, to 24, if it were spread over 12; and, of course, the number of judges has to be multiplied several times over if the ancillary staff is also taken into account. The added expense to litigants and to the public involved in some of the consequential troubles—in the absence of fixed days for hearings, in adjournments for want of time and other delays—is of course enormous. The additional capital and maintenance cost in buildings must also be not insubstantial.
My Lords, the basic proposals in this Bill can be reduced, I think, to three in number: first, the merging of quarter sessions, assizes, Central Criminal Court and Crown Court jurisdictions into one organisation with two levels of Judiciary—the High Court Judge and the Circuit Judge; second, the merging of the ancillary staff into a unified administrative court service under the Lord Chancellor's Office and of the fiscal buildings under the responsibility of the Environment Secretary and third (although this is not in the Bill, since the High Court and the new Crown Court can sit anywhere and 1250 already do so if required) the concentration of actual trials into a smaller number of centres corresponding to ease of access and centres of population and the organisation of the court service into circuits by the Lord Chancellor under presiding judges and circuit administrators.
Your Lordships will find that the Bill is divided into six Parts and 11 Schedules. The first Part amalgamates the new network with the existing Supreme Court in London and the Provinces and gives complete flexibility in places of sitting. The second part defines the Crown Court and transfers to it the jurisdiction, appellate and at first instance, of the courts to which it is a successor. The right of audience will remain as at present, but it will be possible for the Lord Chancellor to direct that solicitors are to have a right of audience in certain circumstances—for instance, at those places at which they have at present a right of audience before quarter sessions. I intend to give such directions at once in respect of the successor courts to those where solicitors have a right of audience now.
Part III deals with Judges of the Crown Court. These will consist of the High Court Judges, the existing county court judges, the official referees and all full-time judges with criminal jurisdiction above the level of the stipendiary magistrates, including the Recorders of London, Liverpool and Manchester, the Common Serjeant and the additional Judges of the Central Criminal Court. The offices of Recorder and Common Serjeant of the City of London will be retained, and the City will have the privilege of paying for their salaries—a very generous exception to the rule that the taxpayer should pay. In return for this, the Lord Mayor and the Aldermen retain their right of sitting with the High Court Judge at the Old Bailey, a right which they have possessed since time immemorial, with almost universal approbation.
The Vice Chancellor of the County Palatine of Lancaster will also be a Circuit Judge but his principal work, which is High Court Chancery work, will continue to be his, and he and his successors will continue to be given by the Duchy the additional title of Vice Chancellor of the Duchy to mark his special 1251 qualifications and his special responsibility The full-time Circuit Judges and the part-time recorders will be appointed by Her Majesty on the recommendation of the Lord Chancellor. The Lord Chancellor will also be able to appoint temporary judges wherever the need arises.
In the new Crown Court, justices of the peace will normally sit as full-time members of the Court with the professional Judge, except when the graver offences are being tried or in cases in which the length of the trial or the difficulty of finding magistrates able to sit throughout the year make it expedient that the Judge should sit alone. This represents an increase in their responsibility, since they do not normally so sit at borough quarter sessions and not at all at assizes. The Beeching Commission made no firm recommendation about the position of the justices in this respect, but inclined to the view that when they sat in the Crown Court they should do so merely as assessors. I was at first minded to accept this recommendation as it stood, but on reflection I do not think it would be satisfactory, and I have found that it certainly would not be popular with the magistrates concerned. The Bill therefore provides, as I have said, for their sitting as full members of the Court.
The new Circuit Judges will be appointed on the same basis as county court judges are now, but they will normally be expected to do criminal work. Some may have additional qualifications or responsibilities entitling them to higher remuneration—and the Bill provides for this—though this is a power that I propose to exercise very sparingly. Existing holders of judicial appointments are of course safeguarded as regards salary and pensions, and there is no reason why they should not continue to be described by their existing titles when this would be appropriate.
Parts IV, V and VI of the Bill contain a number of additional consequential provisions. The change postulated by Clause 25 of the Bill relating to Supreme Court Masters and probate registrars was recommended as long ago as 1915 by a Royal Commission, who thought that they should all be appointed by a Minister responsible to Parliament. 1252 The Lord Chancellor would, of course, not consider making an appointment to these offices without consulting the President, the Lord Chief Justice or the Master of the Rolls respectively. The position, in particular, of the right of existing officers in the Principal Probate Registry to be considered for appointment as registrars will be fully maintained.
§ Clause 26 gives me a general enabling authority for the appointment of staff. I wish to say something on the position of the staff of existing courts, who have in so many cases had to cope in recent years with the problems of an inflexible system and an ever-growing volume of work. I want to make it clear that it is my firm intention that all existing staff of the courts, whether or not those courts will be changing in substance, will receive fair and equitable treatment when the new arrangements are introduced.
§ The major courts are already administered by substantial numbers of full-time staff, and where there is to be no substantive change in their staff requirements my intention will be to invite those staff to come over as a body to run the Crown Court that will directly replace them. In the case of other staff, where we shall be replacing the present quarter sessions with a smaller number of Crown Court centres, we shall hope to attract an appreciable proportion of those local authority staffs now engaged for part of their time on quarter sessions work to come full-time into the unified court service. The exact terms of transfer are still being worked out in detail; we need the benefit of the experience which these officials have, and I believe that we can offer them a varied and satisfying career.
§ Clause 29 enables the Lord Chancellor to set up advisory committees on the lines proposed by the Royal Commission, to bring to the notice of the Lord Chancellor's Office any matters relevant to the work of the courts, and of local significance, of which they should be aware. Such committees must necessarily be experimental, and I propose to take great care in seeking for the services of people of the necessary standing and experience in the various Circuits.
§ Clause 38, in Part V, provides for majority verdicts in the few civil cases still tried by jury. They have been not infrequent in the past, by agreement between the parties, although I was 1253 always taught as defendant never to agree to one. Clause 39 puts an end in theory as well as in practice to the old special juries. I myself was sorry to see them go in, I think, 1949 or thereabouts. But the present provision is more theoretical than of practical importance.
§ Clause 45 is almost the only clause which has nothing to do with Beeching. Advantage has been taken of the legislation to give effect to the proposal in the Banks Committee's Report earlier this year that it was desirable that there should be a right of appeal from the Patent Appeals Tribunal in place of the existing procedure involving a motion for certiorari.
§ Clauses 46 to 50 give effect to paragraph 405 of the Report recommending that the cost of criminal proceedings in the Higher Courts should in future be borne by the Central Government. Your Lordships will remember the trouble that arose in particular over the train robbery case. The clauses go slightly further than this by including the cost of indictable offences triable summarily and committal proceedings. Clause 48 makes similar provision in regard to criminal proceedings before the Divisional Court of the Queen's Bench Division.
§ My Lords, I do not think there is any need to add anything more about this Bill on Second Reading. The Beeching Report was very fully debated in the last Parliament in the House of Commons, where it was welcomed by the present Attorney General on behalf of the Party of which I am a member. Though it was not debated here, I know that it was favoured by my predecessor on the Woolsack, who I believe is to speak next, and by the Labour Administration. It received a warm welcome from the Press, the Judiciary and legal profession. Since this is the first time that this House has addressed itself to the subject, I should like to offer my own thanks, and those of Her Majesty's Government, to the noble Lord, Lord Beeching and to his colleagues on the Royal Commission for their admirable and, as I believe, enduring work. It falls to me now to ask Parliament to bring its main provisions into effect. Although it has meant an immensity of work for my staff, and some considerable study on my part, it would be a failure of 1254 nerve and not want of conviction that would lead me to abandon it now. I put the Bill forward as a measure urgently necessary in the interest of the due administration of justice. My Lords, I beg to move that the Bill be read a second time.
§ Moved, That the Bill be now read 2a.—(The Lord Chancellor.)
§ 3.47 p.m.
§ LORD GARDINER
My Lords, I should like first to echo the thanks expressed by the noble and learned Lord on the Woolsack to the noble Lord, Lord Beeching, and the members of the Royal Commission. The House will remember that apart from a judge, barrister, solicitor, clerk of assize, and the former First Permanent Secretary to the Lord Chancellor, the Royal Commission also consisted of Lord Beeching, whose administrative talents we all know, Mr. Norman, then chairman of De la Rue (now Sir Arthur Norman, Chairman of the Confederation of British Industry), Mr. Parker, Chairman of Parkinson Cowan Limited and also the British Institute of Management, and Mr. Cannon,; President of the Electrical Trades Union. All these administrators of note were very busy men. I think we owe them a great debt for the amount of time that they must have given up and the great amount' of interest which they showed in every detail of the Royal Commission's work. It has resulted in a Report of which I would only say that I do not recollect reading a better Report of a Royal Commission.
Next, may I say how much I appreciate the fact that the Government have decided to put this legislation forward and to implement the Report? I should like to compliment them on the speed with which they have prepared this Bill. No words of mine could be too high praise for the Lord Chancellor's staff. They are a magnificent body of men, of great ability, and the only thing that has ever troubled me about them is the number of hours that they work. Probably only the noble and learned Lord the Lord Chancellor, the noble and learned Viscount, Lord Dilhorne, and 1 can realise, looking at these 56 clauses and 11 Schedules, what a vast task it must have been to get this Bill ready by this date.
1255 I suppose the Second Reading of a Bill has two objects: first, to express opinions on the general policy of the Bill and, secondly, to raise any points that it may be necessary to raise in order to obtain some clarification before deciding whether or not to put down Amendments. I hope that I have already said enough to express my enthusiastic welcome for the Bill as a whole. I agree that it is a radical and spectacular reform; it is the biggest reform in the administration of justice which has taken place in this century, and possibly at any time in our legal history.
I should like to mention three points to make it clear that I agree with them. First of all, I agree with the course proposed in relation to rights of audience at quarter sessions, and secondly I agree with the Government in departing from a recommendation of the Royal Commission in relation to the functions of justices in the Crown Court. After I had read the Report for the first time, I said: "There is only one point wrong; that is the proposal that justices should attend the Crown Court but have no say at all." I think there was some misconception. I know how it happened, and I need not trouble the House with that. I thought that I would make it clear that I agree with the Government on that point.
Thirdly, I should like to give a welcome to majority verdicts in civil cases. The House will remember that the last Government introduced majority verdicts in criminal cases, and considered at the same time whether we should not do the same in civil cases. We did not do so for two reasons: first, the case for majority verdicts was not nearly so strong in civil as in criminal cases; secondly, it would have been right outside the scope of the Criminal Justice Bill.
I have a number of points to raise, mainly for clarification, and it may be convenient if I take them in the order in which they appear in the Bill. There are some minor points affecting, for example, panels of juries, and so forth, which, under the Bill, are to be determined by directions given by the Lord Chancellor. When we come to matters of much more importance, which are in a sense the "guts" of the Bill—Clause 2(2), referring to where and when the 1256 High Court (that is the civil side) is to sit, and Clause 4(5) dealing with who is to sit in the Crown Court, and where, and what cases they are to try—they are all matters to be decided not by the Lord Chancellor, but on behalf of the Lord Chancellor. I should like to ask the reason for the distinction. Is this a disguised reference to the noble and learned Lord, the Lord Chief Justice? Is it a reference to the presiding Judge? Is it a reference to the Lord Chancellor's Permanent Secretary? Parliament is entitled to know about these important matters. What is the reason for the change and, who, in practice, is really going to decide?
I then come to a point under Clause 4 on which I am not sure that the noble and learned Lord on the Woolsack and I are likely to agree. As the House knows, the present muddled position is that courts of assize and quarter sessions are provided or not provided, as they think fit, by the local authority. The county courts are built, maintained, staffed and run by the Lord Chancellor, and without very much difficulty or complaint. The magistrates' courts are a "fudge"; it is really for the magistrates' courts local committee in the first place to say whether or not their accommodation needs improvement, and they then put the matter up to the local authority. If the local authority will not do what the magistrates' courts local committee want, there is a right of appeal to the Home Secretary. The Home Secretary—and this also applies in relation to courts of assize and quarter sessions—has some measure of control by his loan sanctions. It was this muddled system which faced the Royal Commission. They have said that there is no reason at all why our courts of assize, quarter sessions and county courts should have any connection with local authorities. There must be central control; there must be one Minister who is responsible for them all. However, magistrates' courts as such were outside their terms of reference.
The Bill does this in relation to every local authority in the country, except one, and that is the City of London. I was not born yesterday, and I hope that I am a realist. I appreciate that there are reasons why, particularly at the present time, a Conservative Administration may want to please the City of London. In the first place, the worst court in the 1257 country from the point of view of delay, as the noble and learned Lord himself has stressed, is the Central Criminal Court. It has a very wide jurisdiction, taking cases from far outside the City of London. The Royal Commission used their strongest terms about it. They referred to the amount of delay that there was, and they then said:This poses a serious enough problem logistically, but when it is remembered that some of the cases represent accused persons held in cusctody, and all involve witnesses with fading memories, the situation is intolerable.Speaking of the Old Bailey, they said:The problems at the Old Bailey are more acute than those at any other higher court because of its special position.The special position is largely due to the muddle. If there are not enough judges, that is the fault of the Lord Chancellor. If there are not enough courts (and there are not enough of them) that is the fault of the City of London. The staff are provided by the G.L.C. Therefore, it is remarkable that, in accepting the general recommendations of the Royal Commission, who only said of the City that if the City wanted to go on paying for the court they did not see why the Government should not accept or reject the offer as they thought right, we find in Clause 4(7) of the Bill a provision which I agree is their historic position. But this is supposed to be a modernising Bill. Clause 4(7) says:When the Crown Court sits in the City of London it shall be known as the Central Criminal Court, and, notwithstanding the provisions of subsection (4) above requiring proceedings to be heard and disposed of before a single judge, the Lord Mayor of the City and any Aldermen of the City shall be entitled to sit as judges of the Central Criminal Court …That is to say, trying murder cases, or any other cases; and the Aldermen are laymen. I appreciate that they have not done so for a great many years, but I suggest that it is not right, in a modernising Bill, to continue this provision simply because the aldermen of this particular local authority like dressing up in their robes and sitting at the back on the bench.
The Mayor's and City of London court is to become an ordinary county court, but it is to retain the title of the Mayor's and City of London Court. It has nothing to do with the Mayor at all, and nothing to do with the City of London at all. 1258 It is simply to please the City that it is to be called the Mayor's Court. Recorders, under the Bill, are to be part-time barristers who give up about a month a year to sit in the Crown Court. That is what a recorder is. The Recorder of London, therefore, now has an inappropriate title. He will not be a recorder at all. He is, I suppose, the most experienced criminal judge in the country and that is a permanent appointment. His title, to please the City, is still to be retained; and we learn from another clause that the title of the second senior judge at the Old Bailey, the Common Serjeant is also to be retained. Again, he is not "common" and he is not a "serjeant". The only parallel that I can think of is the title of the Lord Privy Seal, who need not be a Lord, and is not really either a "Privy" or "Seal". In a modernising Bill we ought not to continue these titles. They will also be the only judges in the country who—if I understand it correctly—are to have their pay and pensions paid by a local authority. Unless I can be given some better reasons for the extraordinary way in which the City of London has been favoured in the Bill, I shall consider putting down an Amendment on these matters.
My next point is only a small one. In Clause 16(2) Circuit Judges are to retire at 72, but the Lord Chancellor is to have a right to retain them for up to another three years. I think that on one occasion I did this myself, but I would ask the noble and learned Lord to consider whether it would not really be better to say 72 and have done with it. The Lord Chancellor may know two Crown Court Judges who are just going to retire and both want to stay on, and it is extremely invidious to ask A to stay on but not B. Nothing gives greater offence, and I cannot help thinking that one should say 72 and stick to it; but I should be glad to know the view of the noble and learned Lord about this.
Judges' pensions and so forth, particularly those of the lower Judiciary, used to be determined as matters of detail by the Treasury, but they are now to be dealt with by the Minister for the Civil Service. I hope I am not saying anything improper if I say that I always thought that this title was inappropriate, although the Government of which I was a member chose it. But this work is 1259 what the Treasury used to do, and the civil servants who deal with these questions of remuneration and pension are the same civil servants moved over from the Treasury to the Department known as the Department for the Civil Service. I have great admiration for my noble friend Lord Shackleton, the former Head of the Department, as I have also for the noble Earl, Lord Jellicoe. But they deal with other people besides civil servants and have a much wider interest—those who are in the public service but who are not civil servants. It always seemed to me that to have judicial remuneration or pensions dealt with by somebody called the Minister for the Civil Service was inappropriate. He ought really to be called the Minister for the Public Service.
I thought I would draw attention on pensions to the usual rather complicated provisions. Then in Clause 18(7) it is stated:The decision of the Minister for the Civil Service shall be final on any question arising with regard to—So, if he has made a mistake, there appears to be no way to put it right. I would invite the noble and learned Lord to comment on that clause.
- (a) the application of any of the provisions of this section to any person, or
- (b) the amount of any pension under this section, or
- (c) the reckoning of any service for the purpose of calculating such a pension."
§ Clause 29 relates to advisory committees. In these days, we all have to take acount of public relations, but I think the Royal Commission were quite right in saying that on every circuit the circuit administrator ought to get together a committee to include one or two people from the Citizens' Advice Bureau, to represent the public, to see how the arrangements are working and to make any representations which barristers or solicitors or people who have been jurors or witnesses, or members of the public, might wish to make. I am sure that that is very valuable. I will not waste time in inviting the House to consider the law, but the noble and learned Lord on the Woolsack will know that it is always a matter of the gravest doubt whether the word "may" means "may" or "shall". I observe that all the clause says is that the Lord Chancellor "may" 1260 appoint advisory committees. I would ask him: Does he take the view that "may" here means "shall", and what in fact are his intentions?
Then I would ask him to justify, if he can, Clause 34(7). I know that this is existing law, though practically never used; but this is a reforming Bill and it seems extraordinary to continue this particular law. The subsection says this:
This section has effect "—
this applies to jurors—
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).
§ I have never heard of such an order being made for an all-women jury, except once, and very rarely for an all-male jury. In 1970, I "suggest that this really cannot be right. Indeed, I can conceive of its leading perhaps to injustice, because a judge might desire to be exceptionally fair to a person accused of publishing an obscene book and might think, "Women are so easily shocked, I will be very fair to the accused and order an all-male jury." This shows the vice of this sort of thing.
§ In the Lady Chatterley case some of my friends at the Criminal Bar said, "Well, we suppose you will challenge any woman on the jury?" As it was my opinion that it is not the women who are shocked, but the men, I naturally discussed this with my clients, Penguin Books; and they took exactly the same view. In the result I started with a jury of ten men and two women, and I deliberately challenged four or five men in order to try to get another woman on the jury; and I succeeded. So I cannot think of any case to-day which either men are unfit to hear or women are unfit to hear, and I cannot think it right that this provision should be continued in this Bill.
§ I will deal as delicately as I can with Clause 44. This follows, in substance, the recommendations of the Royal Commission, but the question is whether it is right. In the Matrimonial Causes Act introduced by the last Government, undefended divorce cases were transferred from the High Court to the county court. The reason was that for about twenty years, when there were not nearly enough High Court Judges to hear all the divorce cases, it was agreed that undefended 1261 cases should be tried by county court judges, but to please various interests they were to be dressed up as High Court Judges for the day and called "My Lord", instead of "Your Honour". Everywhere outside London all undefended cases, including matters of custody and maintenance and so forth, have for some twenty years been dealt with by the county court judges. In London, for purely administrative reasons, while the cases were heard by the county court judges, who were given jurisdiction as High Court Judges for the day, matters relating to children and maintenance were usually dealt with by the High Court Judges.
§ When Parliament had to decide, "If you are sending undefended cases to the county courts, what is the definition of an undefended case?" differing views were expressed. Some thought that anything to do with children ought always to go to a High Court Judge. That was I think largely based on the views of those in London who did not realise that for twenty years outside London all those matters had been decided by county court judges. There was a division of opinion, and the decision which Parliament took was this: if there is a dispute between husband and wife as to whether the marriage should be ended, that affected status; and therefore any case that was defended as to whether there was to be a decree or not ought to be tried by a High Court Judge, but if there was no dispute about that then the whole case would be dealt with in the county court. Some learned judges apparently did not agree with that decision of Parliament, and I should like to ask whether this new provision, which would enable any High Court Judge to take away any interlocutory subject, or the whole case, from the county court judge, is intended to be so operated as to contradict the decisions which Parliament has so far taken.
§ Before I come to a couple of clauses the effect of which I am not quite sure about, may I say just a word on Clause 27? The clause refers to "The Secretary of State" and the accommodation which he may provide. This used to be the responsibility of the Minister of Public Building and Works, but will now be that of the Secretary of State for the Environment. The expression is not intended to refer to the Home Secretary. I always 1262 find this point rather confusing. Your Lordships know that in a Bill there may be reference to "the Secretary of State" but the definition section never says who the Secretary of State is. The reason for this, as I understand it, is that as Governments are always messing about with he machinery of Government there would be so many changes if the Secretary of State was identified. It therefore becomes necessary to be quite clear who is referred to as the Secretary of State.
§ Then Clause 54(1) deals with appointed days. I must not ask the noble and learned Lord on the Woolsack to do the impossible, but could he give us any sort of idea when, if the Bill receives the Royal Assent next summer, it is hoped that the various parts of the Act would be put into effect?
Clause 54(2) I have not come across before. It deals with coroners, and says:
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.
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.
§ I only ask whether it is not rather unusual to find in the Bill a provision that all subsequent Acts, whatever their contents may apparently be, must be interpreted in the light of this Bill?
§ Then I would ask whether the Schedules contain any changes of which we ought to be told. It is really quite impossible, particularly in the case of the Schedules dealing with amendments to and repeals of Acts, for any one person to go through them all and see what they amount to. I invite the noble and learned Lord to tell us whether the Schedules, and particularly Schedule 11, contain any change in the law of which Parliament should be told.
§ Lastly, my Lords, may I mention seven omissions from the Bill? First, although the Royal Commission were good enough to do all the work to determine exactly where Crown Courts should sit, in which places the work should be dealt with only by the Crown Court Judges and which should have a High Court Judge, and so forth, there is nothing about this in the 1263 Bill because it is being dealt with administratively; but I should like to ask the noble and learned Lord the Lord Chancellor whether in substance he accepts as being right the places recommended by the Royal Commission. Secondly, the same question applies to what cases are to be tried by whom. The Royal Commission recommended three bands of offences to be tried by the High Court Judge or by Circuit Judges, and so forth. I would ask him again, assuming that this change is going to be done administratively, whether he agrees with the detailed recommendations which they made under that head.
§ Thirdly, what are the Government's intentions, if any, with regard to further increasing the jurisdiction of the county court and the jurisdiction of the registrar? That was dealt with by the Royal Commission in paragraph 472 of their Report. Fourthly, what is the position about appeals from magistrates' courts? This was dealt with by the Royal Commission in the first place in paragraph 225, and, speaking generally, is there not a case for reconsidering the nature of appeals from magistrates' courts to what will now be the Crown Court? Because as your Lordships know, in that case—and I think that case only—an appeal is a complete rehearing. The whole case having been tried before the justices and the justices having come to their decision, it starts all over again as if there had been no trial at all, and the prosecution call their evidence. It is heard entirely anew. This is historic. May there not be a case for reconsidering the whole procedure of appeals? I invite the attention of the noble and learned Lord to an article about this subject in the current issue of the Justice of the Peace.
§ Then the Royal Commission said, in paragraph 226, that there was one field in which experience counts for a great deal, and therefore they thought there ought to be a juvenile appeal court. That does not appear in the Bill at all. In paragraph 227 they dealt with domestic and quasi-administrative appeals from magistrates' courts, and in paragraph 228 they observed that it could not be right that appeals from affiliation orders—which are not criminal at all but purely civil—should go to a criminal court. They recommended that appeals in these cases should go to the county court.1264
§ In paragraph 229 they recommended, for the reasons which they gave, that appeals in relation to betting and gaming and liquor licences should go to a licensing appeals tribunal. There is no mention of that in the Bill. If the noble and learned Lord says, "Well, I knew you were anxious and I was equally anxious to introduce this Bill as soon as I possibly could; the office have had an awful job getting it ready at all, and these proposals, although they may be right, would have involved so much further research work and drafting that I felt they really could not be dealt with in this Bill ", I should be prepared not to disagree with that. But I should like to know whether their omission from the Bill is due to that reason or to a difference of opinion between the Royal Commission and the noble and learned Lord.
Paragraph 521 is the summary or recommendations. The reasons for it have been given in the preceding part of the Report. It reads in this way:
The High Court long vacation should be progressively shortened".
§ As it is by no means the first time that that opinion has been expressed by various bodies, I would ask the noble and learned Lord what his plans are in that regard. Sixthly, may I ask him what has happened to the Report of the Morris Committee of 1965? That was a Committee of which the noble and learned Lord, Lord Morris of Borth-y-Gest, was the Chairman, and it was a Committee on juries. It considered a complete overhaul of the qualifications for sitting on juries. I regretted that the last Government had not time to deal with the matter, but they did intend to implement the Report in this Session if they had been returned. As we have heard a great deal about juries, I should like to know whether the Government are going to implement the recommendations of that Committee, and if so what the prospects are from the point of view of time.
Lastly, may I ask what are the intentions of the Government about magistrates' courts? I do not want to express any opinion to-day, but some take the view that there having been this complete overhaul of the courts of assize and of quarter sessions it is time that there was an overhaul of the work of the magistrates' courts. I do not know what the views of the Government are about that,
but may I ask what are their views about buildings? In paragraph 341 the Royal Commission said:
Magistrates' courts are outside our terms of reference, but if the buildings are to be used effectively, they will have to continue to share accommodation with the higher courts in many places where High Court and Circuit judges will sit. Therefore, the needs of the magistrates will have to be taken into account, both when planning the use of existing accommodation and when building programmes are being prepared. Accordingly, we hope that the Government will decide to accept responsibility for building and maintaining these courts also, at least in the centres where High Courts and Circuit judges will sit, and we are reinforced in this view by the realisation that the Government already accepts about 80 per cent. of the cost of building such courts.
§ This is the absurd position: that although the Government pay most of the cost, the local authorities alone decide about magistrates' courts and provide hem, and of course the practical difficulties are great. For a long time the Lord Chancellor has been responsible for the buildings and the administration of county courts. The Ministry of Public Building and Works in my experience are extremely good and they got to know what was wanted for county courts. But you see the most extraordinary buildings under this muddled arrangement about magistrates' courts. I have opened one or two extraordinary buildings. I remember one which was to be for both quarter sessions and magistrates' court, and which was going to cost over a million pounds. It was not wired for tape, and, as your Lordships know, because of the increasing shortage of shorthand writers one of the reasons for the delay in criminal appeals is the delay in getting transcripts. I have always refused to approve new courts unless they are at least wired for sound. The place of honour opposite the Bench was given to the Press, and the dock was put behind the Press. The witness was between the judge and the jury, so that the jury could only see the side of his face or the back of his head.
§ The reason for this situation is because there is always this difference between the Lord Chancellor's office and the Home Office. I have great regard for the Home Office, but, as your Lordsips know, those who staff the Lord Chancellor's office have usually been in practice themselves; they know what goes on in court. Telling off the Judiciary is a matter requiring tact. Of course a county court registrar is 1266 a judge; he hears all the smaller cases. If there is some defect in his administration it has to be pointed out to him, but that is all right, first, because the letter always comes from the Lord Chancellor's office, and, rightly or wrongly, this has in legal circles quite a different prestige to that of any other Government Department; and, secondly, the registrar knows that the head of the Lord Chancellor's county court branch was for years himself a very experienced county court registrar. The same applies when we have to deal with justices of the peace and send people to sit in with the advisory committees when they make recommendations to the Lord Chancellor. The three senior members of the Lord Chancellor's staff who do that are in their spare time themselves justices of the peace; so the committees know that they know what they are talking about.
§ But I am afraid that this does not really obtain in the Home Office, and I was sorry indeed to think that merely because magistrates' courts were outside the terms of reference of the Royal Commission this very unsatisfactory sort of muddled responsibility for the provision of adequate magistrates' courts was to continue. But, of all the courts I have seen—and some courts of sessions and county courts are not what they ought to be—I think that the worst examples are among the magistrates' courts.
§ May I close by making one or two apologies? I hope that nothing I have said on these, to some extent, minor points will be thought in any way to detract from my enthusiasm for this Bill as a whole. I apologise because, as the noble and learned Lord knows, although I agreed to it, the Bill has been published only four or five days, and in consequence I was not able to give him a note of the points I was going to raise. I have chosen to speak now, partly for that reason, and partly because if we have a very long debate it is possible, because I have an engagement at the Palace this evening, that I may not be able to hear his reply. If that happens, I hope the noble and learned Lord, who I take it is similarly engaged, will not take it as any discourtesy on my part.
§ I have not said anything about one very delicate point in the Bill; that is, whether solicitors should be eligible to be Circuit judges. Some people feel very 1267 strongly that they ought to be, and some people feel very strongly that they ought not to be. I do not myself take either of those extreme positions, but I understand that the Law Society are mounting a massive campaign in both Houses, and therefore there is no danger that the point will not be raised for your Lordships' consideration when we get to the Committee stage of the Bill. In all the circumstances. I propose to leave what I have to say about that matter until we come to the Committee stage of the Bill. Subject to the points I have raised and some which I may wish to raise on Committee, we on these Benches very strongly support the Bill; we hope that it will obtain its Second Reading to-day and receive the Royal Assent as soon as possible.