HL Deb 02 May 1977 vol 382 cc827-41

3.59 p.m.

Second Reading debate resumed.

Viscount COLVILLE of CULROSS

My Lords, we now return to the Administration of Justice Bill which perhaps interests rather fewer of your Lordships than the Statement which has just been repeated. When I read the Bill it seemed to me that the only matter of principle that could be uncovered in it was that the noble and learned Lord had required each section of his Department to make at least one contribution, so miscellaneous is it in its coverage. I observe that some of the reforms have waited for quite some time—one, I think, from as long ago as 1955—before an opportunity has arisen to put things right.

I welcome some of the moves towards flexibility: for instance, in Clause 5, the freedom granted under the Courts Martial Appeal Act, for the Court of Appeal to award full costs and expenses without any statutory disadvantages, and also under Clause 12, which the noble and learned Lord explained, whereby one can go rather more easily to the county court for an injunction or declaration without having to join some other course of action. Under Clause 6 we heard that it would be possible to appoint temporary judges of the Employment Appeal Tribunal. I am sure that this is a useful and a wise clause to have on the Statute Book; but if one looks at The Daily Cause List it is very surprising to see how many High Court actions in the ordinary courts are now being tried by people, who are distinguished of course, sitting as additional judges. I very much hope that the noble and learned Lord will not need to use Clause 6 very much. This is in no way a criticism of those who sit as additional judges, but if people go to the High Court or the Employment Appeal Tribunal, they expect to have their case heard by a High Court judge, and they may be a little disappointed if it is not, so I hope this clause will not need to be used very often.

It amuses me very much to find that under Clause 9 a Socialist Lord Chancellor should forsake the nationalised Bank of England and court trade with the private banks, who have not yet been nationalised. I am sure that they will provide a much better and more flexible service, and this therefore adds to my applause on the flexibility that we can find in the Bill. I was very glad indeed to hear the news announced under Clause 10 of the appointment of the first five solicitor circuit judges. I am sure that those who have been interested in this argument ever since the Courts Act—and, indeed, probably before it—will wish them very well indeed in their new appointment. I am sure that they will be every bit as successful as those who come from the other side of the profession.

Now I should like to ask the noble and learned Lord a few questions. I attempted to give him notice, but unfortunately the "pigeon" to whom I entrusted my "post" seems not to have flown straight to the roost. Therefore I will forgive the noble and learned Lord if he has not all the answers today. Perhaps he can tell me in due course. First there must be one or two welcome savings of public money. There should be one saving under Clause 1 and Schedule 1, whereby contributions by legally-aided persons out of their own resources do not have to be recalculated in the middle of a case.

The only disadvantage seems to be—and I wonder whether the noble and learned Lord can say anything about this —if a person embarks on a case with legal aid at a certain level only to find that the lower limit of his income is raised, and that had he started later he would have received a greater contribution out of the legal aid fund. So he may feel that he has been somewhat prejudiced by the failure to recalculate. I wonder whether the safeguards applicable here could be explained.

The second saving appears in Clause 23. In the obsolete method of capitalising the amount that a spouse may get under the intestacy of the husband or wife there is still the necessity, under the legislation as it stands, to publish something called the Government Annuity Tables Order which has not been necessary for any other purpose at all since 1962. Anything that gets rid of even a few pages of the published subordinate legislation that is passed in any year gladdens my heart. There are already about 2,800 pages of it in the Statutory Instruments that are published; that involves only some of the Statutory Instruments that are passed, so there must be a saving in not having to publish and print that. Could the noble and learned Lord confirm that?

When I looked at Clause 13, it appeared to me that this was yet another nibble at the financial limits of the county court. This is the most substantial matter that I should like to raise. There are already a number of limits of financial jurisdiction in the county court which can be raised by means of an order in council; but the situation is getting very complicated indeed. The latest exercise in this line are two Statutory Instruments which came into effect at the end of March. Although I grant that there is the additional fact that there was a regency during that period of time, we have an extremely complicated set of references which grants the powers to raise these limits. The limits are set out.

That is not all, because on the same day there was laid another County Courts (Administration Order) Jurisdiction Order which is not made under any of those Statutes, but under the Administration of Justice Act 1965. I cannot imagine why there have to be two Statutory Instruments. Perhaps the noble and learned Lord can tell us. Does it not really give rise to this, that there cannot be any sense in having any financial limits retained in these Acts requiring substantive statutory amendment from time to time? Could the noble and learned Lord confirm that this is the end of this exercise? He has now picked out the only remaining areas where it can no longer be done by way of Order in Council. If not, would he please look at it again, to see whether that can be done?

First, could he arrange—because here we have a perfect opportunity—for all the limits of financial jurisdiction to be raised in one order so that the practitioner would know that that was the only place he had to look? Secondly, could the Government deal with all of them in the same place, this avoiding the necessity of having to go back and look at one or more Acts of Parliament which still maintain an area which has not been able to be covered by an Order in Council? This is important, if only for the reason that if a litigant starts proceedings in the High Court in a case where the financial jurisdiction is within the county court's limits, he is penalised in costs. Therefore, it is very much to his benefit to know what are the up-to-date limits of the county court's jurisdiction.

On Clause 16, I agree that a £10 limit on an unpaid judgment in the county court, if it is 125 years old, is now out of date; but there is one matter which I remember; that is, that there are agencies which compile lists of people who are bad payers. These are used widely in commerce, particularly in terms of credit rating. I am not altogether certain that I like these things, and it may well he that the mistake or error is not so much in having them at all but in the difficulty of any person whose name happens to appear in one, finding out that this is so. If he was able to be told and perhaps have his name struck out this would take a good deal of the problem away.

If the lists are to continue to exist, and are going to be relied upon, I would ask the noble and learned Lord to think very carefully before he cuts down their ambit. If it is thought that they are comprehensive lists of bad payers, by a stroke he is able to reduce substantially the number of people whose names appear on them and it may be very misleading. That is a slightly difficult point which could be looked at again.

I was also fascinated by Clause 19 and Schedule 4 about the ancient courts. I looked at Law Commission No. 72, which was published some time after the Courts Act had begun the reform that is here completed. I studied with great care what the Law Commission had to say then and the way in which it has been picked up in the Bill. There is only one court that the noble and learned Lord has left out. It was going to have its jurisdiction abolished by the Law Commission, but it has been left out of the Bill and I am very curious about it. It is called The Maldon Court of Record for Passing the Estates of Married Women. Why has it been left out? It seems to me immensely sinister, and I should like to know why that court is to keep its civil and criminal jurisdiction, if any, and what is the good work that it does on the same lines as that interesting insight into Welsh life in North Wales that the noble and learned Lord talked about. I am sure that in Maldon some very worthy jurisdiction is being here fulfilled, but why is it that the Government disagree with the Law Commission?

The only other clause to which I should like to draw attention is one which, of course, has been explained briefly: it is Clause 21 concerning the mortgage caution. I do not practise in this branch of the law, but two or three years ago a judge of the Chancery Division decided that a mortgage could not be protected by an ordinary caution, as I understand it, but only by a mortgage caution. It would seem to me that the change being brought about here, although highly sensible, needs fairly wide publicity because there must be a great number of properties and a great deal of money tied up and protected by cautions of one kind or another in the register. So if the noble and learned Lord could see his way to explaining a little more fully what is being dealt with here and how it is going to work, and how everybody may be made perfectly safe and happy by this new method of protecting their interests, then I feel sure that would be useful.

So far I have not been able to find any other fine pieces of cloth to put in the "ragbag" of the noble and learned Lord, but I will continue my search. Perhaps I might raise a final point. Subject to the noble and learned Lord finding a few more, is he now content to leave this Bill as the culmination of a very distinguished tenure of his office and make perfectly certain that, before the forthcoming Election, the cupboard is bare and all his tasks have been achieved?

4.12 p.m.

Lord GARDINER

My Lords, my main purpose in rising is to congratulate my noble and learned friend on the Woolsack on obtaining Parliamentary time for this Bill. Under any system of justice, of course, there are changes which require to be made—very often small ones —and there are anomalies to be put right and, while it may be true that the Administration of Justice Bill is very often referred to as a "ragbag" Bill, it is really none the worse for that in character.

I should also like to congratulate the Law Commission, whose industry is shown in Clause 19, Schedule 4, in the work they have done regarding these obsolete courts. One of the advantages of a barrister is that when he is not sure whether or not something might be properly done he has only to ask the Professional Conduct Committee of the Bar Council whether or not it is a thing that he can properly do. They are bound to tell him. Doctors, of course, have no such facilities. And if there is not going to be a meeting of the Committee in time, the chairman is bound to give him a ruling. I remember when I was first chairman of the Professional Conduct Committee, the very first question I got—and it had to be answered at once because it was urgent—was: should a member of the Bar wear wig and robes when sitting as Steward of the Manorial Court? That is not a question which is likely to arise very often in the future.

I have only one or two small questions to raise. Referring to Clause 1 and its appropriate Schedule 1, although it appears to state that a man on legal aid can choose his own barrister or solicitor, am I right in thinking that the effect of paragraph 2 of the Schedule is in fact to maintain the distinction which has long existed between a solicitor who, without giving any reason, is always entitled to refuse to act for anyone he does not like the look of, and a barrister who, since he has a monopoly of audience in the High Court, has—at any rate since the time of Lord Erskine—a duty to act for anybody, however much he may disapprove of him and however little sympathy he may have with him in any proper case?

I would respectfully agree, subject to what my noble and learned friend may have to say, with the purport of the observations of the noble Viscount, Lord Colville of Culross, as to the desirability of ensuring that at last we have got rid of all those cases in which a Government cannot alter the financial jurisdiction of the county court without legislation. Referring to Clause 5, solicitor employees, the matter has always seemed to me to raise a rather difficult question. In the original proposals, and indeed in the 1949 Legal Aid and Advice Act, legal aid was to be available in the High Court, the county court, in domestic proceedings before magistrates and in every tribunal before which there was a right of legal representation. But a distinction was drawn: tribunals were not to be included in that procedure until an order in council had been made. The reason for that was simply that it was doubted at the time whether there were sufficient lawyers in the country to do all their ordinary work and legal aid work in the High Court, the county court, before the magistrates and before tribunals as well; so tribunals were to be left for a time until it was seen that there were enough lawyers.

In the event, it did not work out like that at all, because the Act was passed in July 1949, and then came devaluation—crash, bang! crisis, cuts all round—and Lord Jowitt was told, "Of course, you cannot do any of this now." It was a year before he was allowed to start legal aid in the High Court. Then the Government fell and we had to battle against Conservative Governments for seven years before we got it introduced into the county courts. Then we had to battle for another three years before we got it introduced into domestic proceedings before magistrates. I could only persuade the Government of which I was a Member to introduce it into at least one tribunal as a start.

It has always been the case, I think, that if one takes tribunals a man could be represented by somebody who is not a lawyer as well as, and sometimes better than, by a lawyer. For example, in industrial tribunals there are many capable trade union representatives, and before a tribunal like the Supplementary Benefits Appeal Tribunal, a social worker with great experience in that particular field but otherwise knowing nothing about the law, can be a very good representative. However, there is this difficulty: those who appear in our courts, whether barristers or solicitors, are professional men with a strict code of professional conduct, particularly in relation to any court or tribunal, and the courts rely very much on the Bar and on solicitors to maintain the high standards of conduct which professional men ought to observe. One of the first cases which I saw, as a pupil in chambers, was one of Mr. Horatio Bottomley's libel actions. He always employed barristers and solicitors to draft the pleadings and do all the interlocutory work; but when it came to the trial he always got rid of them and appeared in person. Having been for many years a court reporter, he was, of course, very familiar indeed with our rules of evidence; and as a litigant in person he would deliberately introduce hearsay or other matters, the truth of which was quite incapable of being checked, and then he I would look at the jury, if rebuked by the judge, and say: "Of course, I am only a layman and I don't understand these things."

I think that our courts are particularly known in other countries, although no doubt they have their bad points, for the quality of their judges and the integrity of our system of justice. It is now so long ago since anybody even suggested that an English judge was taking a bribe from a litigant that nobody can remember when it was. One has only to read the newspapers to see in how many developed countries it is otherwise. That is largely true because of the way in which our judges are not a separate profession but are taken from the leaders of the Bar and because of the very high standards of professional conduct enforced by the professional bodies.

I am sure it is still the case that there simply are not enough lawyers to go round. They cannot appear for everyone, whether legal aided or not, in all the courts or tribunals. If a line has to be drawn, I have always thought that perhaps the right way to do it is to say that at least those appearing in the courts, as apart from tribunals, ought to be professionally qualified. It is quite true that Clause 14 limits this to very trivial applications in court and so on, but it appears to me to be the first time that that line has not been drawn at that place. While there are, of course, what used to be called managing clerks—now legal executives—men of the highest probity and considerable experience, I believe I am right in saying that the fact is that, not being barristers or solicitors, they are not subject to the professional control of their professional organisations. I am not saying that I would oppose this, but I would invite my noble and learned friend to comment on it.

I now come to Clause 20, which deals with land registration. This has always seemed to me very curious. If you make a will—and it is a fairly private affair to whom and how much money you have left —this is open to public inspection and can be put in the papers, with both the gross and net estate, showing how successful or unsuccessful you have been in evading estate duty. But who owns a piece of land in England has always been a deathly secret. I have never understood why or how, in today's terms, this can be justified in the public interest. Tenants need to know their landlords, just as landlords should be entitled to know who their tenants, sub-tenants or assignees of tenants are, and it may be very much a matter of public question who owns a certain piece of land. Yet the Land Registry is shrouded in mystery and, even to aid the criminal law, we now have a special clause to allow police officers to find out who owns a piece of land.

Finally, there is one Amendment which I may propose at the Committee stage of the Bill and therefore I should perhaps just mention it. It is, I think, a typical Administration of Justice Bill point, because it is quite a small one. It arises in this way. Under the Justices of the Peace Act 1949, where justices are sitting in court, if there is a chairman or a deputy-chairman he or she must take the chair. That seems, on the face of it, a very reasonable provision to make. But it has been found, in practice, that there is this difficulty. I have been told by experienced justices what an extraordinary change it was from being one of a Bench to having to take the chair for the first time. It seems so easy when you are just sitting there and are not the chairman who has to decide what to say or do next, but it is very difficult when you have to do it.

It has been felt that it might be advantageous that those who are likely to be appointed deputy chairmen should have an opportunity of taking the chair in court, while an experienced chairman or deputy chairman is sitting next to them. Then, if he or she suddenly wonders "What on earth am I supposed to do now?" there is somebody there with whom to have a quick word. So it may be that at the Committee stage of the Bill I shall invite the Committee to consider that point. I am told that it is a proposal which has the approval of the Lord Chancellor's Office, the Home Office, the Magistrates' Association and the Justices' Clerks' Society, so perhaps it would not prove to be too controversial.

4.23 p.m.

Lord CLITHEROE

My Lords, may I thank the noble and learned Lord on the Woolsack very much indeed for the very clear way in which he explained this Bill. I want to refer to only two points. In view of Clause 19, which refers to the jurisdiction of ancient courts—not obsolete courts, as the noble and learned Lord, Lord Gardiner, called them—may I ask the noble and learned Lord on the Woolsack who will be responsible for determining how many sheep a commoner may graze on any common on which he has a right to graze sheep at present? A dispute is usually dealt with for the lord of the manor by the steward of the manor, and I should like to ask the noble and learned Lord the Lord Chancellor whether this clause will bring that to an end and, if so, what will replace it and how will the rights of commoners be protected? If the noble and learned Lord the Lord Chancellor does not wish to answer that now, I shall entirely understand, but it is a very practical point which needs an answer.

With regard to what the noble and learned Lord, Lord Gardiner, said about Clause 20, the greater part of land in England is not registered at all. Therefore, a far more extensive Act of Parliament would have to be passed before we could meet the desire of the noble and learned Lord to be able to find out by looking who is the owner of any piece of land.

4.26 p.m.

Lord DOUGLAS of BARLOCH

My Lords, I should like to take this opportunity of saying a word about the provision which was introduced some years ago by the noble and learned Lord, Lord Hail-sham, for solicitors in certain cases to be appointed as circuit judges. The noble and learned Lord the Lord Chancellor has told us that a number have been so appointed, and that it is proposed in this Bill to reduce the kind of probationary period which elapses between the time when they become recorders and the time when they are eligible to be circuit judges. I should like to say how much this has been appreciated by the solicitors' profession. They were grateful to the noble and learned Lord, Lord Hailsham, at the time when this provision was made, and I am sure that they will be grateful to the present Lord Chancellor for the recognition which he has given to the success of this new development in our law.

There is one other point which I might make apropos of what my noble and learned friend Lord Gardiner said about the provision allowing legal executives in certain cases to attend to small items of business. It is not entirely true that they would not be subject to any kind of disciplinary procedure, because, after all, the solicitor who employs them is responsible for them and, if he failed to employ people who were suitable for this task, I have no doubt that the Law Society could take steps to reprimand the solicitor for not seeing that his business was properly conducted. I therefore venture to think that there is sufficient safeguard to enable this simple and, in my opinion, highly desirable development to proceed.

4.29 p.m.

The LORD CHANCELLOR

My Lords, I should like to express my gratitude for the welcome that this Bill has received. I am happy to say that the pigeon duly arrived on the Woolsack about five minutes before the noble Viscount, Lord Colville, began his speech, and accordingly I am now in a better position than I feared I would be in when I sent him a note to the contrary effect. He has raised a number of matters of interest, some of which we can consider in detail in the Committee stage. As to the use of deputies, which arises under Clause 6 in relation to the Employment Appeal Tribunal, as I said, that is intended merely as a precautionary measure and I hope that we shall not need it. I am fully aware of the undesirability of the over-use of deputies in that tribunal or, indeed, in any other tribunal; but your Lordships will know of the pressures which the courts and Lord Chancellors have been under for some time in being able to man the courts, in view of the increasing pressures upon them due to the increase in the amount of litigation, both criminal and civil.

The noble Viscount raised first of all a question about the savings in public money which are involved in the provisions of Clause 1 of the Bill. Part of the saving will come from the fact that assisted persons will no longer benefit from the raising of the income limits once they have accepted an offer of legal aid at a certain contribution. That, I fear, will be the case but I am willing to look at the implica- tions. It is clear that there is no question of a higher contribution being called for once an offer of legal aid has been accepted. The other part of the saving, and it may well be the substantial part, will arise from the saving in the administrative cost of recalculating contributions when they have already been fixed.

As to the Government annuity tables, it is not thought that there will be any significant savings as a result of the abolition of their publication. In any event, there is no immediate intention to cease their publication. I am advised that some form of annuity table will have to be compiled for the purpose of the Administration of Estates Act to allow the survivor's life interest to continue to be calculated. However, I am very willing to look again at this point.

A point of importance was raised with regard to means of dealing with county court jurisdiction. The County Courts Jurisdiction Order 1977 now covers all jurisdictions except, first, the Admiralty which will in future be included and, secondly, the Inheritance Act and administration orders which do not need Affirmative Resolution. Therefore we have moved towards unification and towards the elimination of the need to have a series of differing orders dealing with different fields of jurisdiction. However, perhaps this is a matter which I can look at again after discussion with the noble Viscount, Lord Colville of Culross.

With regard to the register of county court judgments, I confess that my sympathy was entirely with the noble Viscount. Indeed, initially I proposed to abolish the register because it constitutes an invasion of privacy. The debtor does not know whether or not he is in the list or how reliable the contents and keeping of the list are. However, I am bound to tell noble Lords that I received a flood of complaints about my proposal. In the end I decided—I hope not weakly—to submit, because it was said that I was undermining the commercial arrangements of the country and that the abolition of the register could cause great damage in making it easier to avoid the payment of debts. However, we have raised the figure at which a debt becomes registered from £10, as it has stood since 1852, to the figure of £50 which will be intro- duced by the Bill. In view of the fall in the value of money since 1852, I think that is a reasonable increment.

I recognise the worry of the debtor as to where he stands. As the noble Viscount has said, a debtor is not given notice of being placed on the register, but if he is aware of the rules—and I am afraid that it may be a big "if"—he will know that this happens automatically. He can, however, have a search of the register made in his own name—if necessary, by a request by post for a fee of £1—to find out what is registered against him. It may well be that we ought to give greater publicity to that fact, since it may diminish some of the anxieties which have been expressed.

I was asked a question about that fascinating tribunal, the Maldon Court of Record for Passing the Estates of Married Women. I regret to say that this court performs no judicial role; it has been extinct for years and years. For that reason it was not necessary to curtail its jurisdiction by Statute; the jurisdiction does not exist. That is the explanation of the mystery. I am sorry that it is not more intriguing and fascinating than that, because it conjured up remarkable possibilities. I have explained why the fascinating jurisdiction of the Denbigh and Laxton courts has been maintained, so I will not go into that matter.

I was also asked about mortgage cautions. I am bound to confess that I cannot readily expound upon mortgage cautions, although I do appreciate their importance. I am advised that the procedure is obsolete and that nobody will be prejudiced by the removal of mortgage cautions from the Land Registration Act. However, I will certainly look at the matter with greater care between now and the Committee stage and give due publicity to the change which has been made.

I am grateful to the noble and learned Lord, Lord Gardiner, for his support of the measure. I am happy to think that at last I have escaped his reproach of inaction in the field of law reform where, quite rightly, he is always "on the ball". The noble and learned Lord expressed his gratitude, which I certainly repeat, to the Law Commission for their part in some of the proposals contained in the Bill. The position is that a solicitor can still refuse to act for a person in respect of legal aid matters, but perhaps I can look into the matter. It is right to say that, by and large, the solicitors have enthusiastically co-operated in the work of legal aid but, as I say, I will have a look at the point.

With regard to the right given to legal executives to appear in the county court in what will really be only formal matters —like informing the court of an agreement made between the parties to adjourn the case—while I appreciate the concern that has been expressed, it is envisaged that in practice I will consult the Council of Circuit Judges, the Bar Council, the Law Society and the Institute of Legal Executives before making a direction. They have been consulted and they welcome the clause, as it enables a direction to be made that a Fellow (as one is now so impressively called) of the Institute who has been conducting the case will not be required to instruct an advocate to conduct a formal procedure such as I have mentioned, which could he the subject of a direction. As there would be a saving in the time of solicitors, there could be a consequential saving in the cost of litigation. As so much of that litigation is financed by legal aid, it will have a useful effect there also.

The noble and learned Lord referred to the techniques of Horatio Bottomley, but they did not avail him in the end. Your Lordships will know of the occasion when somebody called on him in prison where he was sewing mailbags and he was asked, "Sewing, Horatio?" "No", he said, "reaping!" So that was the end of the story.

The noble Lord, Lord Clitheroe, asked me a question to which I regret I do not readily know the answer; namely, how many sheep a commoner may graze on any common.

A noble Lord: Safely!

The LORD CHANCELLOR

Yes, my Lords, safely. I am afraid I do not know the answer to that.

Lord CLITHEROE

My Lords, that was not quite the question. On all commons where various farmers have rights to graze sheep each farmer has the right to graze a certain number of sheep. There is sometimes a case where a farmer grazes more sheep than he is entitled to graze, which is to the disadvantage of the other commoners. In those circumstances, the lord of the manor comes into the situation and on his behalf the steward generally determines the matter.

The LORD CHANCELLOR

My Lords, I am most obliged for that elucidation of the question. I will certainly look into the question as to how further protection can be given to the rights of commoners. I do not know the answer readily, but perhaps I may write to the noble Lord about it. He obviously has more expertise in this field than I have.

I was asked both by the noble Lord and by the noble and learned Lord, Lord Gardiner, about the privacy of the Land Register. There are two views about this matter, but I think the prevalent view appears to be that it ought to be private. I am bound to say that I am not particularly wedded to that proposition, but at the very least we thought this time that facilities and the right should be given to investigate the register in the event of consideration of a criminal prosecution being laid in respect of the resources and money used to acquire the land. My Lords, I apologise if we have taken a little longer than was expected on this Bill. I think it is a useful Bill and I hope your Lordships do not feel that it has been a waste of time.

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