HL Deb 29 January 1973 vol 338 cc392-405

3.0 p.m.

THE LORD CHANCELLOR (LORD HAILSHAM OF SAINT MARYLEBONE)

My Lords, I rise to move the Second Reading of the Administration of Justice Bill. As your Lordships will observe, it is a Bill composed, like ancient Gaul, of three Parts. The first is to deal with the law affecting justices of the peace and the magistracy. The second is a series of unrelated amendments intended as improvements of the law in the field of the administration of justice generally. The third contains the usual provisions supplementary to the first two and requires, I think, no separate mention, except that in Clause 15(4) of the Bill the date April 1, 1973 is a misprint for April 1, 1974, and will be amended to that effect, if the House sees fit, at a later stage. I hope that all three Parts of the Bill will prove uncontentious.

As in all Bills where the content is a series of unrelated parts, it is not possible for me to commend this Bill to the House without going through it in rather more detail than its relative importance really requires. I will, therefore, take your Lordships through the clauses so far as they require explanation on Second Reading debate. Before I approach the content of Part I I should say that as some of the provisions relating to the appointment of justices of the peace and of keepers of the rolls might be considered marginally to affect Her Majesty's prerogative, in form if not in substance, I have it in command from Her Majesty to inform your Lordships that it is Her pleasure that these matters may be regulated in future as the House sees fit.

My Lords, the primary, though, as the House will observe, not the sole, objective of the first Part of the Bill is to adjust the law relating to justices of the peace to the new structure of local government. The Local Government Act itself contained transitional provisions which were designed to tide over whatever gap there might be. But as the expression implies, the provisions were at best only transitional. I have taken the opportunity afforded by the necessity for some permanent change to take a new look at the whole system for commissions of the peace, which still bears more than passing marks of its thirteenth century origins and is framed in language virtually the same as it became after the revision by the judges in the year 1590. One feature not connected with the wording is that every name has to be transcribed manually into the commission. This practice of immemorial force, which continued unabated through the successive inventions of printing, typewriting and photography, was, unfortunately, given statutory force by the Crown Office Act 1877 and can now be altered only by Act of Parliament, which I now propose should be done. This anomaly is rendered still more inconvenient by a second anomaly, namely, that the commissions must be physically retained in their own areas. This means in practice that they must continuously shuffle backwards and forwards between those areas and Westminster as names are constantly added and removed by hand. Apart from the danger of actual loss of the commission, as indeed has happened, the extent of the inconvenience can be measured by the fact that well over one thousand appointments in 211 different commissions are made every year.

The effect of Clause 1 of the Bill is that commissions will he addressed gener- ally and not individually, and that the areas will coincide with the new counties. The five commission areas of Greater London and that of the City will continue as before as if they were separate counties. The Bill enables me to issue new commissions to have effect from April 1, 1974 for each of the new counties. I will take the opportunity to revise the wording. By the transitional provisions of the Local Government Act I will be able to allocate existing justices to the new commissions. The vast majority will not be affected by boundary changes. Where they will be affected individual justices will be consulted as to where they would prefer to sit.

The new appointments will be made by an instrument which will be retained in my office. Copies and notifications will be sent to the counties and there they will be held by the Lords Lieutenants. I am taking the opportunity of the Bill to bring up to date the manner of the appointment of Lords Lieutenants in this particular capacity in which they act in the old office of custos rotulorum.

Turning to the more detailed provisions of Part 1, Clause 1(2) simply gives the Lord Chancellor authority to do what he has been doing without authority for several centuries. Clause 1(5) provides for the supplemental list of justices to be consolidated into a single list instead of being kept separately for each county, and provides that a justice may continue to sit as a judge of the Crown Court despite the fact that his name is on the supplemental list, so long as he has not attained the age of 72. This provision is intended to enable experienced justices to continue to serve for two years in the Crown Court, where difficulty is at present being experienced in finding sufficient justices who are able to give the required time, especially in cases lasting more than one day. The Lord Chancellor's special authority is required before this power may be used so as to make it perfectly clear that a justice who is unfit to sit owing to age, deafness or other like cause, will not continue to adjudicate in this capacity. Clause 1(6) safeguards the position of the City of London. Clause 1(7) preserves in the somewhat altered circumstances the rights of the Duchy of Lancaster in the appointment of justices. Clause 1(8) makes the necessary formal provision that the Isles of Scilly shall, for the purposes of the clause, form part of the County of Cornwall.

Clause 1(9) abolishes a rather absurd anomaly, of which I was wholly unaware until I became Lord Chancellor. I had no idea, and it is possible some other Members of the House have no idea, that the whole of the powers of the Commissioner and the Assistant Commissioners of the Metropolitan Police derive simply from the fact that they were made ex officio justices. So much was this so that in the Act of 1968, which abolished other ex officio justices, these two anomalous figures were retained on the commission. They may not sit in court or adjudicate, but their authority is derived from their position on the commission of the peace. I have taken the opportunity with the Home Office to put an end to what I hope will be agreed is an absurd anomaly.

Clause 2 of the Bill deals with stipendiary magistrates in the provinces. The main purpose of this clause is to enable me to appoint stipendiaries for the provinces where they are required by the work instead of waiting for local authorities to petition. In practice, the number of provincial stipendiaries has contracted in recent years at the very moment when work is increasing. This is because local authorities object, perhaps not unnaturally to paying salaries the level of which is fixed by the Lord Chancellor. By Clause 2 of the Bill the obligation to pay the salaries is now removed from the local authorities and transferred centrally, and the Lord Chancellor is given authority to appoint stipendiaries when they are required. In case there may be any belief that I am here planning a takeover from the lay bench in any parts of the country, I can assure the House that I have no such intention. So far as I can tell, there will be only one or two extra appointments required at the present time, although the jurisdiction of existing stipendiaries in the provinces will be extended to reach over the entire area of the new counties, instead of being confined, as at present they are, to the boroughs for which they were originally appointed. The Association of Municipal Authorities has accepted the change; the County Councils Association did not accept it, but has never in fact exercised its powers, so its failure to do so may not perhaps be of importance.

Clause 3 of the Bill enables me to provide courses of instruction for justices of the peace if or in so far as local magistrate's courts committees fail to provide courses under Section 17 of the Justices of the Peace Act 1949, or the comparable provisions, for Inner London, of the Administration of Justice Act 1964. It also enables me to supplement local schemes by providing training of any kind on a national basis.

Clause 4 is required urgently to amend the law as to the right of justices of the peace who happen to be solicitors to continue to practice their profession. It is proposed, as was proposed in the draft Solicitors Bill which was blocked last Session in another place, to confine the restriction on solicitor/justices to the petty sessional division for which the justice ordinarily sits. This has become increasingly important to achieve in consequence of the reorganisation of local government and the increase in the area of the commissions provided by Clause 1 of the Bill. The clause has the approval of the Law Society and the analogous clause will be dropped from the impending new Private Member's Bill on solicitors should this clause in the present Bill be approved by the House.

I now turn to Part II of the Bill. The first of the clauses in Part II is Clause 6. This increases the jurisdiction of county courts in relation to land and is rendered necessary by the approaching revaluation of rateable values which takes place on April 1, 1973. Were it not for the provisions of this Bill, most of the cases relating to land now tried by the county court would suddenly be removed from the county court jurisdiction by reason of the revaluation, since its jurisdiction depends on rateable value.

LORD HALE

My Lords, I apologise for interrupting the noble and learned Lord—and may I say that I am very glad, as I think everyone is, to see him back. Is the noble and learned Lord not now saying that the result of the independent revaluation will, in the Government's expectation or in his expectation, be to put up rates and rateable values substantially? Otherwise, why would it be necessary to increase in advance the level of county court jurisdiction for this purpose?

THE LORD CHANCELLOR

My Lords, it has no effect on rates at all, since that depends on the poundage. It obviously will increase rateable values, since the original revaluation, which ought to have taken place in 1968, is now I think six years, or maybe ten years, out of date as a result of the action taken by the Labour Government.

As I was saying, were it not for the provisions of the Bill, most of the cases relating to land now tried by the county court would in fact be removed from the county court jurisdiction by reason of the revaluation, since the jurisdiction of the county court depends on rateable value, though not of course on the level of rates. I should utter a word of caution about Part I of Schedule 2 which, if you read it, looks as if the limits are being raised by a multiple of ten. This is not so. The actual multiple is about two and a half. The reason for the apparent difference is that the Schedule relates back to the original legislation which has been the subject of intermediate legislation increasing the limits in 1963 and at various other times. I am also taking the opportunity of this legislation to provide for machinery on an Affirmative Resolution to enact future extensions if necessary by means of Order in Council instead of taking up the time of Parliament with an Act.

Clause 7 of the Bill is designed to give effect to the true intention of Parliament in the Administration of Justice Act 1970, when it endeavoured to put into practice the recommendations of the Payne Committee Report. It affects the rights of mortgagors. The history of the matter briefly is as follows. Before 1962 it was common practice for a court in its discretion to grant a mortgagor an adjournment or succession of adjournments in a claim for possession of the mortgaged property by the mortgagee so as to enable him to discharge arrears due under the mortgage and thereby avoid losing his property. In 1962 it was decided in the Chancery Division of the High Court by Mr. Justice Russell (as he then was) that the practice had no foundation in law and it had, therefore, to be discontinued because there was no power to defer ordering possession without the consent of the mortgagee.

The Payne Committee endeavoured to reverse this process, and this was the intention of Section 36 of the Act of 1970. In a recent case last year, however, the Vice-Chancellor held that this object had not been entirely achieved, since he decided that where, as is usual in the mortgages affected by this class of case, provision is made for the whole capital sum to become due in the event of a default in payment of one or more instalments, the powers conferred on the court by Section 36(2) of the Act of 1970 could he exercised only if the court were satisfied that the mortgagor could pay the whole capital sum within a reasonable period. The effect of this judgment is to stultify the real intention which the Government of the day had in seeking to pass through Parliament Section 36 of the Act of 1970, and the object of Clause 7 of the present Bill is to enable the intention of the Payne Committee's Report to be carried into effect. The method adopted is by providing under subsection (1) that only the amounts which the mortgagor would normally have had to pay if the mortgage had continued to run in the ordinary way are to be treated as due under the mortgage for the purpose of the court's order.

The purpose of Clause 8 is to have judicial salaries of the Higher Judiciary and of stipendiary magistrates determined in the same way as, under the Courts Act, those of Circuit Judges are now determined. This has become necessary owing to the increasing number of times that alterations have had to be made. Failure to do so would put the higher Judges and stipendiaries in an inferior position as regards salary, not only to county court judges but to civil servants and other persons whose salaries are covered by the top salary review body. Clause 9 needs really no separate justification. It is the machinery clause removing the necessity of separate Letters Patent to confer a pension on the higher Judges; it alters neither the amount of the pension nor the entitlement thereto.

Clause 10 is rendered necessary by the fact that there is at the moment no means open to a Lord Chancellor, who finds that one of the judges has become too ill to carry on his work and too ill to retire. This has actually happened since I was Lord Chancellor. The present provision was created in order to safeguard the judges. The Bill provides equal or superior safeguards by subsections (2) to (4) which provide that I may not use the powers conferred on me by this Bill without a consultation with appropriate members of the Judiciary. The actual identity of these members appears in the Bill, and obviously it varies with the type of appointment to be considered. Clause 11 enables me to pay pensions to the President of the Pensions Appeals Tribunal. There is no provision under the present legislation for the whole-time President to be paid a pension.

Clause 12 enables me to correct an oversight in the passage of the Courts Act 1971. In providing that I might make a solicitor a Recorder, I omitted to provide—and no-one reminded me—that he might equally be made a Deputy Circuit Judge. As the lesser ought obviously to be included in the greater, this is put right by Clause 12 of this Bill. Clause 13 gives me the right to appoint deputy district registrars. At present, registrars make the appointment, but can do so only when they are not themselves available. This is a right I do not at present have and which no one has if the registrar is in fact available, but the work is too heavy. It is entirely analogous to the appointment of deputy judges; the Circuit Judge of the appropriate county court will, of course, be consulted before any appointment is made.

The remainder of the Bill is contained in Part III, which I have already dealt with. The provisions relating to justices of the peace are designed to operate as from April 1, 1974, to coincide with the commencement of the Local Government Act. The jurisdiction of the county courts is designed to operate from April 1 this year to coincide with the revaluation. Clause 7 will come into operation one month after the enactment of the Bill. I do not think that there are any other points that I need mention on Second Reading.

It was discourteous of me not to thank the noble Lord, Lord Hale, for his kindness in his personal reference to me, and I now do so. Happily, I can tell him that I am now firing on seven cylinders out of eight. My Lords, I beg to move.

Moved, That the Bill be now read 2ª.—(The Lord Chancellor.)

3.19 p.m.

LORD GARDINER

My Lords, the whole House will be grateful to the noble and learned Lord the Lord Chancellor for the clarity with which he has explained this Bill to us. We are indeed fortunate that he has sufficiently recovered from his recent indisposition to enable him to do so. Some people object to any kind of what they call a "rag-bag" Bill, but I confess that when occupying the noble and learned Lord's office I found it extremely useful, when there were matters connected with the administration of justice to be put right, to be able to have an Administration of Justice Bill, even though it dealt with a wide range of quite unrelated subjects. We welcome this Bill, we agree with practically the whole of it, and I want to raise only three points.

First of all, on justices of the peace, who are dealt with in Part I, Clause 2, the present position, as your Lordships know, is that we have a unique system of justice under which lay citizens take a greater part than I think they do in any other country in the world. Gone are the days when the justices were the local squires; they are now representative of wide ranges and sections of the public. They decide about 98 per cent. of the criminal cases and, as the whole House knows, I am rather enthusiastic about them. Of course they are now trained. I found that, in relation to the volume of work they did, I used to get far more complaints about the professional judges than I did about the justices. Naturally, when there are 20,000 of them, about six time a year somebody says or does something silly and the Press duly take note; but appeals from decisions of justices are extremely few, and those which succeed are fewer still.

Apart from the Metropolis, where the volume of work is so enormous that it is essential to have some stipendiary justices to deal, in particular, with the smaller and rather trying cases, and perhaps with traffic accident cases, there are 11 stipendiary magistrates in the Provinces. I entirely agree with the proposals in the Bill, and I agree that it is in line with the Courts Act that central Government should decide what, if any, additional stipendiaries we should have, and that the noble and learned Lord the Lord Chancellor should accordingly have power. He has told us that he is thinking of appointing one or two additional stipendiaries, and I am sure nobody will object to that. But, of course, although officially there is no Legislation Committee, we know that in fact there is and that one of the functions of the Legislation Committee is to stop Departments from taking wider powers than they really need.

What disturbs me very much is that in its present form this clause, in effect, authorises any Lord Chancellor to abolish the justices of the peace and to replace them by stipendiaries. I am quite sure that that is not what the noble and learned Lord the Lord Chancellor has any intention of doing. It could not in fact be done, because there just are not the required number of lawyers. If the proposals were to give the Lord Chancellor power to increase the number of stipendiaries by 50 per cent., I should not object. But this power is entirely unlimited, and any future Lord Chancellor could do what I have just said, without coming back to Parliament. There are about 1,500 justices who retire each year, so that the number of justices can be run down very quickly. One stipendiary is the equivalent of about 50 justices, because the stipendiary sits alone and he sits every day, while two or three justices sit together and normally about once a fortnight. I hope that at the Committee stage of the Bill, the noble and learned Lord will be prepared to consider having some reasonable limit placed on the number of additional stipendiaries who can be appointed under this clause.

The second point that I want to raise concerns Clause 8, which deals with judicial salaries. I quite agree with what is proposed: that in future, judicial salaries should he determined by the noble and learned Lord the Lord Chancellor, in conjunction with the Minister responsible for the Civil Service—which is, in effect, the Treasury. But I should be grateful if the noble and learned Lord could tell us a little more about the Review Bodies. I am very puzzled about this subject. On November 2, 1970, the then Secretary of State for Employment made a Statement of great importance in the other place. He said that the Prices and Incomes Board was to be abolished, and so were the Kindersley Committee and the Plowden Committee. He said that the best protection for the consumer, both as to prices and services, is to be found not in statutory control, which has been tried and found not to work over the last six years, but is to be found in the process of competition." [OFFICIAL REPORT, Commons, 2/11/70; col. 673.] He went on: What we have always said and what we still say is that it is not possible to have a statutory incomes policy that works without a much larger degree of direction of labour and wages than the last Government contemplated —and I hope than any Government would care to contemplate.". [col. 675.] Then he added, as to inflation: … no Prices and Incomes Board, no form of statutory control or compulsory early warning, can prevent it from happening. What we must do is get a better balance between increases in earnings and increases in production, a more effective machinery to ensure competition."—[col. 682.] On December 4, the then Lord President, in the course of a debate, made a somewhat similar Statement; and on December 8 the right honourable gentleman the Prime Minister made another formal Statement in the other place.

It was quite impossible to reconcile the detail of those Statements, and on December 15, on a Motion to increase the remuneration of the higher Judiciary, I pointed out the difficulty. In his reply, the noble and learned Lord the Lord Chancellor said, in effect, that Prime Ministers cannot be expected to have the details of everything at their finger tips. He said that the authentic text was that of Mr. Carr, then Secretary of State for Employment. What that meant was that the Prices and Incomes Board was being abolished, and that three Review Bodies on remuneration of highly paid groups in the Public Service would be appointed. Board A would deal with boards of nationalised industries, the Judiciary, senior civil servants and senior officers of the Armed Forces, and I think there were added later Ministers and Members of Parliament; Review Body B would deal with the Armed Forces, other than senior officers; Review Body C would deal with doctors and dentists in the National Health Service. These Review Bodies would all be serviced by an entirely new body, the Office of Manpower Economics, which would not be part of the Government machine. These bodies would be set up early in the New Year.

During the debate in your Lordships' House I did not criticise that. I asked two questions: first, whether the body to deal with the Judiciary would have on it someone who really knew the sort of lives which judges, particularly on circuit, lead; and, secondly, what would be the terms of reference and, in particular, whether they would deal with pensions as well as with remuneration. In his reply, the noble and learned Lord the Lord Chancellor said that he did not think those matters had been decided. My Lords, that was in December, 1970; and we are now in 1973. While it is always possible to miss an Oral or Written Question, or even a Bill, in the other place, although one tries to keep an eye on what is happening, so far as I know there has been ever since the most deafening silence about this new structure which was declared with such a flourish of trumpets.

I should like to ask whether the Office of Manpower Economics was appointed, as it was said it would be, early in 1971; and, if so, what it has been doing since. Has Review Body A to deal with the Judiciary been appointed; and, if so, of whom does it consist, and what are its terms of reference? They may of course have been very busy behind the scenes, without that fact having reached me, but in a way it seems strange that all this was declared in 1970 and that there has been an extraordinary silence ever since. I think I have said before that I do not hold it against the Government that they change their mind. If an honest man comes to the conclusion that something he said before is now wrong, he will say "I was wrong there, and I have changed my mind." But the pace of change is rather confusing, so one cannot be blamed for not quite knowing whether the situation which existed in one year goes on existing in the next.

Then, my Lords, on Clause 12—this is a small point—the House may remember that a short time ago we had a discussion as to which judicial offices should be occupied by which half of the legal pro- fession. For the reasons I then ventured to explain, I feel very strongly that the great reputation which English justice has elsewhere is due at least partly, and I think very greatly, to the fact that we have a divided profession instead of, as in America, every lawyer trying to do everything. For the reasons I then explained, I regret that the dividing line between the professions has for the last quarter of a century always moved one way. I do not think there has ever been a case of barristers being allowed to do any of the things of which solicitors have always had a monopoly, but gradually solicitors have been allowed to do things which hitherto have been the province of the Bar. There was at that time a consensus between the Bar Council and the Law Society, and I well understood the very natural desire of the noble and learned Lord to rule by consensus rather than by confrontation. But again there seems to be something of an exception in this Bill, in that although a solicitor cannot be appointed a Crown Court judge, he is now, if I have understood it rightly, to be entitled for the first time to be a deputy Crown Court judge; and I should like to ask whether that has been done after consultation with the Bar Council and the Law Society.

Later in subsection (3) the clause deals with deputy district registrars and deputy county court reigstrars. Is there any real reason why a barrister, if he wanted to be, should not be considered for appointment as a district registrar or a deputy or a county court registrar or a deputy? I wondered how the noble and learned Lord might react to an Amendment to add, after the word "solicitor", the words "or barrister". I have only one other short observation, and that is as to the Short Title of the Bill, which says: This Act may be cited as the Administration of Justice Act 1972. That, I assume, will be amended in due course.

VISCOUNT AMORY

My Lords, before the noble and learned Lord sits down, I wonder whether he would answer one question. He opened up to us I thought the most appalling possibility that under this Bill the Lord Chancellor of the day could abolish overnight the voluntary magistracy and substitute stipendiary magistrates. When he said that, I looked anxiously at my noble and learned friend the Lord Chancellor, but he gave no start of surprise. He did not turn pale, and I saw no trembling come over his frame. I should like to ask the noble and learned Lord whether he would beg my noble and learned friend, when he comes to wind up, to put us out of our anxiety on this score.

LORD GARDINER

My Lords, I said that I am quite sure the present occupant of the Woolsack has no intention to do that and that it would not in fact be practicable to-day because of the shortage of lawyers; but as the Bill is drafted, enabling a Lord Chancellor, for the first time, to appoint stipendiary magistrates in the Provinces, there is no limit at all, and without coming back to Parliament, not at a stroke but fairly quickly owing to the number of justices of the peace who resign and retire every year, replacement could in fact be made over quite a few number of years. I am sure the noble and learned Lord does not intend to do that, but there is a sensible case, I think, for inserting in the Bill some limit on the total number.