COMMONS AMENDMENT (Hansard, 22 April 1971)

§ THE LORD CHANCELLOR
My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 37. This new clause, which was moved by the Government as the result of representations made during the Second Reading of the Bill in another place, has two separate but connected purposes. At present, broadly speaking, boroughs have recorders, and those recorders are the judges of quarter sessions and sit alone and without magistrates. When this Bill becomes law boroughs will not in that sense ever have recorders again. An essential part of the scheme is that all these courts of quarter sessions merge into the Crown court and will be presided over by circuit judges sitting with magistrates.
This caused, and I think understandably caused, a certain amount of pain to two separate classes. First of all, there were the classes of ordinary boroughs. They had frankly said, "We should like to retain some sort of personal connection with a part-time member of the bench or a full-time member of the bench, giving him a titular recordership. He will not 839 sit as a judge in our court but he will have social relations with us. He will be called by the name of the borough if he wants to use the title. He will possibly help to discuss problems with magistrates. He may even sit on the borough bench; at any rate he will be a friend of the borough". It will be part of the public relations connected with the scheme, and I wholeheartedly commend it. Whether it works or not will depend on whether it is used or not and what the appointees make of it. It does not interfere with the scheme and it may add a little to its good will.
There are two slightly different cases. One is that there are three or four boroughs in the country which have charters which entitle them to appoint recorders, a notable example being Kingston-upon-Thames. Kingston-upon-Thames has not held any quarter sessions for years, as long as I can remember, but it almost always appoints as recorder a reigning Attorney General; and if the reigning Attorney General is appointed recorder he gets two enormous chevalières but he does nothing else for it. But for some reason the borough of Kingston-on-Thames enjoys having a distinguished recorder. At present it enjoys the services of Sir Elwyn Jones, who was appointed during his tenure of office and remained in office after he lost Her Majesty's favour. Everybody likes him very much and I cannot see any harm in it. There are three or four boroughs like this. The purpose of this group of Amendments is to allow this practice to go on. I had representations from the Member of Parliament for Kingston-upon-Thames and certain other Members of Parliament similarly affected, and I think also from Sir Elwyn Jones. I am not quite sure whether he mentioned it to me. I think this was a popular Amendment and I heartily commend it. There is a third case where recorderships have been linked with a number of moribund civil courts which for various reasons I should dearly have liked to do away with. The group of Amendments also tidies up the position as regards them. I beg to move.

§ LORD GARDINER
My Lords, I am not going to ask the House to reject this Amendment or to disagree with the Commons, but I am not at all happy about the position. It was the essence of the Beeching reforms that one would get away from unreality. I appreciate that there was a feeling that "We like having our own pet recorder", which is partly the reason why this proper reform has not been carried out before. First of all, there are places where apparently there is some right by charter. That the Attorney General should be recorder of Kingston-upon-Thames without ever going near the place is all right—that is historic—but I am not at all clear from what the noble and learned Lord has said whether the others in that category—Durham, Hartlepool, Preston, Wells, and Wycombe—means that there will be members of the Bar who will be able to call themselves, for example, recorder of Preston when in fact they do not sit at all. If they are likely to sit there, it is getting very like the existing system.
And I am still less clear what the noble and learned Lord said about moribund courts. I thought we were getting rid of those—in the Bill we are getting rid of the Bristol Court of Tozey and so on. There are some hundreds of moribund courts. Whether they are going to have honorary recorders is not at all clear to me. There are courts of pie poudre, as the noble and learned Lord knows, which were granted to boroughs in their charters. In Volume 8 of the Second Edition of Halsbury's Laws of Englandcourts of pie poudre are referred to. Paragraph 1469 reads: These courts, which are courts of record, had jurisdiction to decide as to all manner of contracts, trespasses, covenants, and debts done within the time of fairs or markets and within their precincts. The jurisdiction only extends to questions arising at the particular fair or market in question, and not to those arising at any previous one. If it appears that the cause of action is not within the jurisdiction", and so on. The law administered… is the law merchant. The court of pie poudre is only authorised to sit on a day for which the fair or market is granted by the charter, and not on any other day on which the fair or market may actually be held. The procedure… is simple—pleas are begun without a writ, and an answer has to be made within a day, 841 in many cases within an hour… Judgment may be deferred to the time of another fair or market". Then it says: Courts of pie poudre are almost obsolete… I do not know what "almost obsolete" means.
Then there follows a long list of innumerable courts of record of which the first alphabetically is the Abingdon Court of Record, which has jurisdiction in personal actions up to£10 and is directed to be held weekly. There is a recorder of Abingdon, who is to be judge of the court. Paragraph 1472 continues: The proceedings are as at common law under the old practice of the superior courts before 1852. The court has been in abeyance since 1836. No rules of court or tables of fees are in existence. There is also a court of pie poudre, which had long been out of use in 1835, and a court leet. I am not at all clear from what the noble and learned Lord has said whether this means that all these quasi-moribund courts are to have honorary recorders. If so, is that really within the spirit of modernising our law put forward by the Royal Commission?

§ THE LORD CHANCELLOR
My Lords, if I may go into a little more detail about this, subsection (1) of the new clause is, I think, fairly plain. This gives the council of a borough power to appoint a person to be honorary recorder, and it is intended to preserve the right of boroughs to make these appointments. That should be read with subsection (3), which limits the persons who may be appointed honorary recorders of a borough or judge of a borough civil court to Circuit judges and new-style recorders; that is to say, they will have to be members of the Bench appointed on my recommendation by Her Majesty, and they will be part of the Circuit judge system. But inside the borough they may have the title of honorary recorder.
The exceptions to subsection (3) are the very few cases which I mentioned. One is Kingston and another is Durham—I think the noble and learned Lord recited them all—which have by charter the right to appoint a recorder, who will of course not be confined to the Circuit Bench because the charter so approves.
842 Indeed, the Attorney General cannot be a member of the Circuit Bench, and in the case of Kingston Sir Elwyn Jones presumably would not want to be a member of the Circuit Bench. I could not have excepted Kingston by name. There are about four of them. They have a very ancient right which their local Members of Parliament no doubt appreciate even more strongly than their constituents. In the case of Kingston, a very distinguished person holds the appointment. It does nobody any harm, and I feel wholly unrepentant about my act of public relations in allowing them to go on with what they have got so long as it does not do anybody any harm.
Now a more substantial question, but one of very little importance, arises in relation to what I call the moribund courts. There are, as the noble and learned Lord indicated, a number of boroughs which have local civil courts. Whether they could be called small claims courts or not, they seem to have died for want of business, for want of any other expression. I do not conceal the fact that I should have liked to have got rid of them. We did get rid of some, as the noble and learned Lord pointed out, but we should have liked to have got rid of them at the same time as we got rid of the main ones. But we accepted advice, which I think was sound, that the necessary consultations would have held us up unacceptably. We also reluctantly accepted the advice that what we could undoubtedly have done by a side wind, but rather deviously, would have been to abolish them by depriving the courts of their judge, which we could have done because of the provisions of Section 175 of the Municipal Corporations Act 1882. This section provides for the recorder of a borough to be the judge of the civil court, if there is one, except where the court independently possesses its own judge, as is occasionally the case. Section 175 is repealed by Section 11 of the Courts Bill, and subsection (2) of the Amendment was inserted to take its place.
Now it is quite true, as the noble and learned Lord indicated, that these courts are very numerous and very different and wholly anomalous. They have been established at one time or another either by Royal Charter or by local Act, or 843 Sometimes, I am told, even by prescription, whatever that may mean in the circumstances. If your Lordships are interested in research, you will find a list of them in Halsbury's Laws of England, Third Edition, Volume 9, at pages 486 to 575, which indicates that it occupies a disproportionate amount of an encyclopædia of English law considering the little importance that it has. I could go on reciting cases. There were the Great and Small Barmote Courts of High Peak, which relate to lead mining in Derbyshire. There is the Dartmouth Court of Record, which has a jurisdiction upon the water extending about a mile from the castle and as far as the white rock a mile below Totnes. This has not sat since 1821. A third is the Congleton Court of Record, one of whose officers is a catchpole. The catchpole, I must say, is the mediæval Latin cacepollus, which means the man who chases chickens. He is equivalent to a sheriff's officer.
Now the only thing I would say about all this is that if we wanted to get the Bill through there was no alternative but to keep them theoretically on the Statute Book. It would have taken an inordinate time to get rid of them; and those of your Lordships who went through the traumatic experience about whales and dolphins some weeks ago will realise why I hesitated to embark upon a wholesale clearance of what I regard as lumber. Somebody would turn up, even in this House, to preserve them if they could. At any rate, it would have been impossible to get rid of them all. They do absolutely no harm, because they do nothing. So they remain on the Statute Book; and it would have been dishonest to have abolished them by inference by depriving them of their judges. They do not really come under this new clause, because all this new clause does is to allow these boroughs, with all the other boroughs, to appoint their honorary recorders, who I suppose will attend mayoral dinners and, I hope, will attend sentencing exercise with local borough justices and tell them some of the things which local borough justices ought to know, and discuss their problems with them. But they will not sit at any quarter sessions.
Where it is provided that there is one of these extraordinary little places by 844 name which never sits, I suppose I have got to keep on with it because, as I say, we have not been able to abolish the courts by the Bill, and it would have been dishonest to abolish them by pretending not to do so and then abolishing the section which provides for their judges. So there we are. It will do no harm; and I think I have taken on as much as I can in the Bill in order to get it through in time. I am not really in a white sheet about this. We cannot tidy up the entire mass of mediæval law which can be dug out of Halsbury if you look deep enough; and the actual Amendment that I am proposing has the sole object of providing for those honorary recorders, which will give a good deal of quite harmless pleasure.