HL Deb 29 January 1973 vol 338 cc418-30

Debate on Second Reading resumed.

4.7 p.m.

LORD HALE

My Lords, my name, like the maidservant's baby, is very small and I can assure the noble Lord, Lord Milverton, that I have no desire to exercise any preference over him. However, as my name is first on the list, it may be convenient to follow the order, lest I find that in giving way I have lost my chance of speaking. I expect I shall not detain the House for long, because in listening to the extremely interesting discussion which has taken place on the last Statement I have forgotten almost every word that I had intended to say. I have an apology to make to the House, although it is not really my fault, because I really put my name down ex abundanti cautela. On a previous occasion I was asked whether I wished to speak on a Second Reading, and I said that as my points were mainly Committee points I would leave it until we dealt with the core of the matter in Committee. Then, on Second Reading, I heard vaguely the words "Committee negatived". I asked my neighbour what this meant, and he explained—much more courteously than I should—that "there ain't gonna be no core". In those circumstances, finding this the type of Bill that I absolutely detest, and finding it covering a large number of matters, including many arising from a large number of committees, of which I can say quorum pars parva fui, I felt that the best thing to do, having received the Bill by post only this morning, was to go to the telephone and have my name put down on the list just in case. That I did; and so it remains.

As I have said, I dislike this type of Bill. I remember when I first went to a boarding school at ten guineas a term, all in, there appeared on the table a large lump of suet which, at the age of ten, I found very attractive looking and which I was told was called "spotted dick". It was so called, not with any pornographic intention but because it was carefully studded with little currants outside and had almost a Dickensian appearance. I said, "That looks very attractive", and a cynical neighbour of ten years of age said, "Wait till you see what's inside." He had reason for that. The noble and learned Lord explained the Bill very clearly and some of my major apprehensions have now been removed. One knows how these things arise and I do not want to be too fastidious about it. In another place, for many years I used to pop up and ask the Minister whether the words in the Bill really meant what he said they meant. and sometimes advice would be sought from the Box and the Minister would say that with the advice that he had got—some of the highest in the world—the words really did mean what he had said they meant, even if they did not look like it. The House would then proceed to pass the Bill. Six months later a matter would go to the Court of Appeal on a high constitutional principle. The Court. with a very great wisdom, always said that they must adjudicate not on what Parliament meant but on what Parliament said, and therefore they were bound to assume that Parliament meant something by this clause and must give some interpretation to it, even if this might be difficult. Then the matter would come back to the various Ministries and a series of minor Amendments would be passed.

There are four Schedules and this is a very "bodge-podge" Bill; and it is a dangerous form of legislation too. It means that every judge, every solicitor and every counsel has to start pencilling up, making notes and alterations. The Bill deals in the Schedules with over thirty measures, some of which are referring to Custodes rotulorum. Obsolete enactments are in Part I and they include such recent measures as the Justice of the Peace Acts 1949 and 1968. When I find that another Schedule contains an amendment of the Local Government Act 1972, which was passed somewhat recently, and with the temporary or partial transfer of the Scilly Isles to Cornwall for administrative purposes it seems that I shall be in order on Committee in tabling an Amendment to restore Middleton to Oldham and Wilmslow to Manchester.

As I say, very many things are included in the Bill. The noble and learned. Lord who sits on the Woolsack explained the clause about mortgages, which now seems excellent—all the more excellent because it came from a Committee of which I was a member, although I had long since forgotten it. There were a great many law reform committees going on at that time. We found ourselves on the Withers Payne Committee—and it was a very happy Committee to be on because of its distinguished personnel and because we sat under the most charming and gifted of chairmen. We met for four years, during which time we considered a subject which seemed to expand as we went along. We were, in the abundance of law reform committees, rather in the position of cricketers in a public park, and from time to time a representative of one Committee would say that we had pinched his wall after we had been trying to bat against it for some months, and there was some confusion about terms of reference. I gather that a number of recommendations from that Committee have already passed into legislation and are working satisfactorily.

It is rather odd, but it is very wise and prudent that this recommendation should come into this Bill in advance of the statement made in a Written Answer to the noble and learned Lord, Lord Gardiner, last week that the other part of the Withers Payne Committee will not be the subject of legislation in this particular Session. That is to be regretted. One wonders why some things can be done and others cannot. But I hope that when those concerned come to the second part they may reach my dissenting report—which, because it appears about page 350, I do not think anyone has yet read.

My Lords, it is not often that I have the slightest disagreement with anything said by the noble and learned Lord, Lord Gardiner, to whom I listen always with great admiration, attention and envy, but I am not a delegate of the Law Society and never have been. I am in fact struck off the rolls and I used at one time to write them sarcastic letters to point out that the electors of Oldham selected me to represent them despite, and not because of, the fact that I was a solicitor—and it is not always an electoral advantage. I hope we shall not pursue too strongly the privileges of the two professions. I found when I retired recently that I did not get some of the financial privileges that are accorded to the Bar. There are privileges on both sides, and possibly sometimes there are too many. But we have managed to get on pretty well, and if his objection really arose from the clause which deals with the appointment of deputy county court registrars, I personally have to say on that clause that the only thing to which I have objected is its verbosity, its strictness and its insistence on various qualifications, which nearly always lead to further enactments and further discussion. But the power to appoint deputy registrars is obviously necessary and I would not have thought that that particular office which may, as I understand the clause, be purely temporary in cases of appointment through illness, would excite any dispute between the professions.

In those circumstances, as there is going to be a Committee and as one or two of the points I wanted to make were Committee points, I do not think I need to worry the House now—indeed, I feel I should almost apologise for coming. I am grateful to the noble and learned Lord, the Lord Chancellor. I was very glad to see him back—we all were—and I was very glad to hear him explaining this Bill with his customary lucidity, and explaining it in ways which satisfied at least one or two of the apprehensions I had felt. I shall therefore have time now to consider the matter more carefully, to read through his speech again and that of the noble and learned Lord, Lord Gardiner, and then decide whether any further participation on my part is necessary.

4.19 p.m.

LORD MILVERTON

My Lords, I should now like to make a few of the points that I have been struggling to make this afternoon concerning the inclusion of local authorities in the provisions of Clause 7. I will be very brief and, because of the delays there have been, will cut down what I have to say to a matter of only four or five minutes. What is important to the local authorities and to the Association of Municipal Corporations is that both the 1970 Act and Clause 7 of the present Bill apply to local authorities lending money. The proposals are based on a recommendation of the Payne Committee on the Enforcement of Judgment Debts. In paragraph 1391 of their Report that Committee proposed that the powers to suspend possession orders should not be applicable where the lender is a local authority seeking possession of a dwellinghouse. The Association sought therefore to have local authorities excluded from the 1970 Act provision, and they now are very anxious about their inclusion in Clause 7 of the Bill.

The reasons for this Association's view remain the same as those which were advanced in 1970. I will deal with this with the utmost brevity, but the reasons are because local authorities have the responsibility of lenders of last resort in the house-purchase field, being unable to choose their borrowers as building societies or other lenders can. They are also answerable to the ratepayers for the proper use of public money. Before taking proceedings, cases are individually examined by elected representatives answerable to the electorate for any misjudgment. Local authorities lending money are subject to such conditions as the Secretary of State may impose, and they are not free agents as are other lenders. Therefore they have some hope that perhaps the exclusion of local authorities from Clause 7 of this Bill may yet receive serious consideration from the Government.

4.12 p.m.

LORD WILBERFORCE

My Lords, I wonder whether I might raise one short point on Part II of the Bill, particularly with regard to Clauses 8 and 9. I do so with some inhibitions, but I hope I may do so since all I have to say relates to machinery rather than substance. There is a difference in the machinery in Clause 8 on the one hand, and in Clause 9 on the other hand. In Clause 8 a procedure is introduced enabling changes in the judicial salaries mentioned there to be made by the Minister for the Civil Service, the noble and learned Lord the Lord Chancellor, or the Secretary of State, in the case of Scotland, without the necessity for a fresh Act of Parliament. But when one gets to the subject matter of Clause 9, which deals with pensions, one sees there that the clause incorporates all previous legislation by the mechanism of Schedule 3, which is on page 20 of the Bill. It simply sets out the legislation as it has grown up over a number of years and, as Clause 9 makes clear, the Schedule simply reproduces existing enactments.

It seems reasonable to suppose that in the near future there will be discussions with the Civil Service Department, the Office of Manpower Economics, or the Review Board. We await the answer of the noble and learned Lord on that matter to the question of the noble and learned Lord, Lord Gardiner. There will be discussions on pensions, among other things, and one would suppose that at the very least those discussions would clear up some of the jungle which one finds in Schedule 3, arising from the fact that one can go back to 1950, and that there are a number of classes of people who came in at different times with different rights and different options. One also hopes that some antiquated provisions will be modernised.

If I may mention one, there is still the provision which applies to the Higher Judiciary and which fixes their widows' pensions at one-third of the deceased person's pension. That is well below the proportion prevailing in other fields. It is well below that in industry, which is generally two-thirds, and even in the case of the public service the proportion has been recently raised to one-half—though, I hasten to say, against the making of compensatory payments. One-third is clearly out of date and one would think that that would have to be adjusted, no doubt with some compensation on the other side. My only suggestion would be —and I wonder whether the noble and learned Lord would be kind enough to consider this at some stage—whether in relation to pensions it would be advantageous to introduce, through Clause 9 or elsewhere, some mechanism which would enable, by some such mechanism as one finds in Clause 8, an agreement that may be reached with the Treasury, or relevant body, to be introduced without the necessity of a fresh Act of Parliament.

I do not want to go any further at this stage, or to go into any question of substance. I really wanted to raise this point as a matter of procedure. I have a precedent behind me to this extent: there is a provision of this kind in the Superannuation Act of 1972 which deals with a whole range of pension payments in the public service and elsewhere. It would not be a difficult matter, as a matter of drafting, to bring into part of the Bill, either in Clause 8 or in Clause 9, something similar to the provisions in the Act of 1972. I should be most grateful if the noble and learned Lord on the Woolsack would give his consideration, no doubt after taking advice, to whether this might be a good provision to bring into the Bill so as to simplify the process of bringing pensions and related matters up to date. My Lords, that was the only point I wanted to make.

4.27 p.m.

THE LORD CHANCELLOR

My Lords, I should like to thank the various noble Lords who have made their different contributions to this Second Reading debate. If I may go back to the noble and learned Lord, Lord Gardiner, and deal with the various speakers seriatim, it may be the convenient course to take. I should like to thank the noble and learned Lord, Lord Gardiner, for his welcome back to me. I was unfortunately indisposed last week, but it was nothing more than the fashionable 'flu, which I believe is called by the rather curious name of "English 'flu", for the first time in my life. It was always the "Spanish 'flu", or the "Asian 'flu", or something else in the past. Now we apparently have evolved our own strain, which has taken its toll of a number of people, including me. I am very grateful to the noble Lord for his generous words.

If I may deal with his next observation in conjunction with that of the noble Lord, Lord Hale, I would repeat that this is a Bill of unrelated points. The noble and learned Lord, Lord Gardiner, said that when he was Lord Chancellor he found that he, too, had to make use of these Bills. I do not think that the noble Lord, Lord Hale, is right to dislike them. If we are going to be serious—and I hope we are going to be serious—on the subject of law reform, one of the things we have to do is clean up the Statute Book. As the Statute Book is in a dreadful mess, with pockets of obsolete enactments of one sort or another, then if the Lord Chancellor of the day is going to improve matters and make the law more intelligible to the people, Parliament has to get used to the fact that a very large number of uncontentious Bills which are as dull as the suet pudding which the noble Lord, Lord Hale, consumed to his great dismay during his educational days must be digested, and it must digest a certain number of these suet puddings. I suggest that the best way of doing this is to masticate them in silence. But that is entirely a matter for the House. I am not going to wear sackcloth and ashes for producing a rag-bag of disparate things, provided it is guaranteed—as I have tried to do—that they are all improvements on the status quo.

To revert to the noble and learned Lord, Lord Gardiner, I thought that his complaint about the stipendiaries had a certain amount in it, in that the provisions of Clause 2 are fairly general in extent. He was quite right to draw attention to that. I think his fears are somewhat fanciful, especially in the form in which they were taken up by my noble friend Lord Amory. There are only 2,500 barristers at present practising at the Bar, and therefore the chance that they would all be substituted for 21,000 magistrates, which is the number of lay magistrates there are, is a fanciful one, even if it were not for the assurance that I have given to the House. Even on the basis of 50 magistrates to one stipendiary, I think it would be found that the results are not within the compass of any Lord Chancellor.

It is a little difficult to know what to do in an enabling Bill of this kind, except to say that where the situation demands it some responsible member of the Government—responsible, that is, to Parliament—should have the power to make appointments. I think that over the country as a whole—England and Wales and, I suppose, Lancashire under the Chancellor of the Duchy—it is a little difficult to say in advance exactly how many will be needed, and probably unnecessary to go to Parliament every time a new one is needed. Lord Chancellors and their predecessors, the Home Secretaries, have made metropolitan stipendiary magistrates since the year dot, certainly throughout my lifetime, and I do not think there has been any tendency except away from stipendiaries in London in favour of lay magistrates. I would certainly go the whole way with the noble and learned Lord, Lord Gardiner, in the tribute which he paid in passing to the lay magistrate system. I have taken every opportunity I could since I became Lord Chancellor to pay tribute to their work, and I entirely share the experience of the noble and learned Lord. Although I receive a great number of complaints about a great number of judges from disappointed litigants of one kind and another, and sometimes from members of the public who read rather colourful accounts in the Press of what has taken place in court, oddly enough the strongest and bitterest complaints are almost all against the professional judiciary, not against the lay magistracy. Whether there is any significance in this, I am not at all sure, but I can only say that the impression I get is much the same as that which the noble and learned Lord gave to the House.

At any rate, this is not the kind of Bill about which I have any inhibitions. I should be delighted to have suggested Amendments on this subject. If the noble and learned Lord, Lord Gardiner, desires to curb the powers which I am proposing, I am sure he will do so kindly and I will certainly look at any Amendment he or anybody else puts down; and in the meantime I will contemplate the possibility of proposing a Government Amendment, without undertaking to do so. At any rate, this is not something about which I feel any kind of false pride and I should be delighted to have any suggestions for improvement, either now or at any other time.

On Clause 8, I think the noble and learned Lord, Lord Gardiner, did, for once, nod in asking me for more information about the Top Salaries Review Body. Its Chairman is the noble Lord, Lord Boyle of Handsworth, and the noble Baroness, Lady Seear, is another prominent member of it; and Sir George Coldstream and Mr. Anthony Lloyd, Q.C., are also members of it. It has published at least one Report, Cmnd. 5001; and those proposals have, broadly speaking, been accepted by both Houses of Parliament—I think on Affirmative Resolution. So perhaps the Government have not been quite so dilatory as might at first sight have been thought from what the noble and learned Lord said.

As regards the deputy Crown Court Judges, I really do think that the greater includes the lesser. If your Lordships remember what we did in the Courts Act 1971 you will recall that we provided that solicitors could be recorders. In fact, I have appointed between 20 and 30 (I cannot remember the exact number) solicitors, and the reports I have had about them are universally encouraging. The recorder is a part-time judge, as we went into at length in the Courts Act, who promises to give at least 20 days of his time to judicial work in the Crown Court. As a rule, when I am dealing with a member of the Bar, before I make him a recorder I rather like to see how he shapes on the Bench. For that purpose I normally ask him to be good enough to sit as a deputy judge. If I make him a deputy judge he sits only for short periods of time; he is under no obligation to give me 20 days a year, and I am under no obligation to give him any more than the cases which come his way when he is sitting as a deputy judge. But it helps me, and helps him, I think, to know how judicial work appeals to him, and it is therefore a step before making him a recorder—a lesser step and not a greater step. Once I have made him a recorder, although I can in theory remove him for incompetence, it is a big step to take; he is paid quite a substantial sum every year as a retaining fee.

What I omitted to do, I am bound to say by sheer inadvertence, when we were discussing the Courts Act 1971, because it was done under some stress of emotion between the parties concerned, was to provide that solicitors could be deputy judges as well as recorders. I am perfectly sure that that is a sensible step. I am not secretly trying to undermine the independence or the prerogatives of the Bar, or to encroach on anything that I ought not to do; but if a solicitor can be a recorder he can also be a deputy judge, because the greater includes the lesser. I have not had an answer from the Box which would be helpful on the point, but I do not think I consulted anybody; I thought that this was a perfectly sensible thing to do. If it causes grave offence, either in the Law Society or among the Bar Council, or among the general pub- lic, I am perfectly prepared to consider the matter in Committee without feeling, again, any sense of false pride; but I do not think there is anything to argue about.

The next point was: why cannot a barrister be a deputy county court registrar or a registrar? I am bound to say that I have never hitherto asked myself this question. It has been part of the prerogative of a solicitor from the word "go". The reason, broadly speaking, is that, at any rate in origin, county court and district registrars do a great deal of work in relation to taxation of costs which is not usually within the professional experience of a member of the Bar. I would accept, lest the noble and learned Lord think that I have not taken it into account, that district registrars, who are almost always county court registrars wearing another hat, do in fact do the work of the Supreme Court Masters in the Provinces; and the work of these Supreme Court Masters in London is done by solicitors in the Chancery Division and by barristers in the Queen's Bench Division. Whether these are the laws of the Medes and Persians which cannot be changed, I am not prepared to say, but if the noble and learned Lord likes to raise the question by some appropriate Amendment on Committee I can go into it further. It is not a subject again, for which, or against which, I am prepared to enter the last ditch and die. My guess is that if I were to allow barristers to become registrars of county courts, none would apply, and that would solve that. But I am quite prepared to consider the point on its merits and to have my Department investigate it. It is certainly not a question which I had asked myself at any stage of my professional career until the present.

Those were the points raised by the noble and learned Lord, Lord Gardiner. I have dealt with the points of the noble Lord, Lord Hale, about this being a hotch-potch Bill. I agree that it is, but I suffer no shame from that. I was a little puzzled as to why the noble Lord, Lord Milverton, should complain that Clause 7 applies to local authorities because, so far as I can see—and this is borne out by such persons as I have been able to consult since I heard his speech—it is an Amendment to Section 36 of the Administration of Justice Act 1970, which also applies to local authorities. I am told (although, of course, the Government responsible was the Labour Government at that time) that the exclusion of local authorities was considered in the 1970 Act but that it was deliberately decided by Parliament at that time not to exclude them, on the ground that as regards the lending of money they are not really different from any other lender of money: they do not have to lend money; they are not compelled to, any more than building societies are compelled to lend money, or those persons who advertise in the popular Press as being willing, and even too anxious, to lend you anything from £10 to £25,000 on your mere note of hand, are compelled to lend money. It is not part of their statutory duties; it is only one of their powers. I do not really see why they should be excluded from Section 36 of the Administration of Justice Act 1970, and in their infinite wisdom the Labour Government appear to have come to the same conclusion. All I am doing is to amend that Act in a sense that is favourable to the borrower and I do not think I should be at all happy about excluding local authorities in relation to it.

Perhaps I may again explain what we are doing in Clause 7, in language that is probably simpler than absolute legal accuracy would require. The courts, again in their infinite wisdom, have decided that there is no power to withhold possession where the borrower from whom it is being sought is unable to pay the whole sum—the whole pound of flesh—due under the mortgage. Previously, as I have said, until Mr. Justice Russell decided this was illegal, it was always the practice of the Chancery Division to refuse such an order. It was intended by the Payne Committee (until Vice-Chancellor Pennycuick decided that that was not achieved by the Act of 1970), that in fact the borrower could be protected either by successive adjournments or by other procedural devices if he kept up his payments, even though the whole capital sum—the whole pound of flesh—might have fallen due owing to the stringent form in which mortgages are drawn at law; and I still think that is right. It is certainly to the benefit of borrowers and certainly in the best tradition of Lord Chancellors to protect borrowers who are in danger of losing possession under a mortgage. So I do not feel at all inclined to let off the local authorities and catch only the building societies and other lenders.

I cannot give the noble and learned Lord, Lord Wilberforce, a complete answer to the point that he put. Such a review as he contemplates is in existence at the present time, and I would confirm his view that a more thorough-going review of judicial pensions is both desirable and in contemplation. But I doubt whether it could be put into this Bill. It would have to include Scottish and Northern Irish judicial pensions, and, as I have said, a review is going on in consultation with the Civil Service Department. I do not think it would be ready in time for this Bill, and in any case I doubt whether this Bill could be made the vehicle for it. If it could, I should be happy to contemplate an Amendment; but I do not want to hold out hopes of that. At any rate, my general advice has been to make what I believe are called "encouraging noises" to the noble and learned Lord, and I hope he will be encouraged by the noises which I have in fact succeeded in making. My Lords, I think I have dealt with the various points which noble Lords have made and I should like to thank them again for having played a part in this debate.

On Question, Bill read 2ª, and committed to a Committee of the Whole House.