HL Deb 16 May 1977 vol 383 cc481-510

3.53 p.m.

House again in Committee.

Clause 16 agreed to.

Clauses 17 and 18 agreed to.

Lord GARDINER moved Amendment No. 4: After Clause 18, insert the following new clause:

Persons to preside at meetings of Justices: Magistrates' Courts

.—(1) The following subsection shall be substituted for section 13(3) of the Justices of the Peace Act 1949 (under which the chairman or a deputy chairman of the justices for a petty sessions area must preside at any meeting of the justices, if present):—

"(3) Subject to the next following subsection, if the chairman or a deputy chairman of the justices for a petty sessions area is present at a meeting of those justices, he shall preside unless he requests another justice to preside in accordance with rules made under this section.".

(2) At the end of subsection (5) (power to make rules) of the said section 13 there shall be added the words "and

(c) as to the justices whom a chairman or deputy chairman of justices may request to preside at a meeting,".

The noble and learned Lord said: Section 13(3) of the Justices of the Peace Act 1949 provides that: the chairman or a deputy chairman of the justices shall preside, if present… at any meeting of the justices for a petty sessions area. The question of who should take the chair in a magistrates' court has rather a chequered history. At one time it was always the senior magistrate, who was usually the oldest, and sometimes, frankly, too old, and obviously not necessarily the most competent. Then at one time there were many ex officio justices, of most extraordinary and varied character. In a borough the mayor was an ex officio justice. The chairman of district councils and all kinds of odd people, like the Lord Chancellor, were ex officio justices of the peace. When I was in Office in 1968, we got rid of all that in the Justices of the Peace Act 1968.

The mayor had always insisted on taking the chair if he sat. He sat only rarely, and therefore did not know the work properly: nevertheless he always insisted on taking the chair when he did sit.

Now we have got rid of all the ex officio justices, and the chairman and deputy chairman are elected by their fellows. But one difficulty has arisen, as I shall now explain. As many experienced magistrates have told me, after years of doing this work, liking it, and knowing it thoroughly, one day they are asked to take the chair. They think that there is nothing in it because they have sat for years and years hearing how chairmen take the chair, yet the first day in the chair can be a cause for the gravest concern. A justice in such a situation finds that he has never realised how specialised the post is: after all, it is usually only the chairman who speaks, and he is responsible for the conduct of his court and for asking those questions which should be asked, and so forth.

But at the moment, because of the section in the Justices of the Peace Act to which I have referred, somebody who is being tried out as a deputy chairman for the first time cannot have an experienced chairman or deputy chairman sitting next to him to whom he could turn if he felt he had got into a jam. Conducting a court is indeed a responsibility. In that admirable monthly publication The Magistrate I see from time to time little problems set with regard to things which have happened in the course of a particular case. There is the matter of what the chairman failed to do which rendered a whole case a nullity and the conviction had to be quashed.

This is a difficult situation. For some time now the Magistrates' Association has been asking that benches, not compulsorily, but if they wish, should be able to have a chairman or deputy chairman sitting in court next to someone very much less experienced who in effect is being tried out. This proposal also has the support of the Justices' Clerks Society. I acknowledge with gratitude the assistance I have had in the drafting of the Amendment, and if there is any alternative drafting which my noble and learned friend might prefer, I should be only too happy to accept it. Subject to that point, I beg to move.


I am glad to be able to tell the Committee that the Government are happy to accept the Amendment as moved by my noble and learned friend. If I might catch my noble and learned friend's ear for a moment, I should like to say that I well remember the battle over the issue of ex officio justices of the peace which he, with his customary determination, fought to a successful conclusion, with perhaps not such able assistance in another place. It is clearly desirable that a justice who has not yet become chairman or deputy chairman of his bench, should sometimes be given the opportunity of taking the chair and should have the advantage of having that experience in the presence of the chairman or deputy chairman who can give him advice and guidance.

I am also satisfied that my noble and learned friend is right in seeking to achieve this object by taking a rule-making power rather than by a straight Amendment to Section 13 of the 1949 Act, because if the proposed system is implemented, we might run into unexpected and unforeseen difficulties, and it is right that we should be able to rectify these by amendments to the Magistrates' Court Rules, instead of having to resort to further legislation. I am much obliged to my noble and learned friend for his initiative in putting down this Amendment.


Before my noble and learned friend replies to the Lord Chancellor, I should like to say that it is a delightful change to hear magistrates receiving some extra encouragement in this Chamber, because quite recently, during the passage of another Bill, I got the feeling that they were not too popular with some of your Lordships, for various reasons. As one who has frequently been described as a senior member of the bench and therefore forced rather reluctantly into the chair, I would endorse everything that my noble and learned friend Lord Gardiner has said. Being in the chair is certainly very different from sitting on the bench beside the chairman. While I did not send somebody to be hanged and then have to say that the penalty would be only a fine of £10, in the terms of the apocryphal joke of the magistrates' courts, I can recall several occasions when the clerk had to put me right, which I suspect would not have happened had one been in the situation envisaged if this becomes part of the Bill. As a magistrate I should like to express my appreciation for the fact that this suggestion has been so readily accepted by my noble and learned friend.


Before my noble and learned frend answers, may I, too, add a word to the thanks which have been expressed by my noble friend. I would point out that the magistrates themselves do take certain initiatives, in that, for example, in some places they actually hold meetings which are addressed by experienced chairmen—I speak from very personal knowledge of one case, anyhow—in order that those who are likely to be in the chair at a later stage may have the benefit of experience and have explained to them what are the duties of a chairman. I think the Magistrates' Association uses its utmost endeavours to see to it that, while those who take the chair for the first time obviously cannot understand as much as a very experienced chairman, they will, even at the initial stage of their taking the chair at a court, have some understanding of what should be done and how to do it.


While on balance I think the Amendment that is being accepted is right, I think the way it is put into practice ought to he kept in mind. I know things are rather different now, but when I first sat as a magistrate many years ago—and I sat regularly in those days—one took the chair on occasions without it being obvious that one was what might now, in this discussion, be called a learner chairman; and, bearing in mind that one has to deal with cases in which the people concerned want to feel that they are getting justice and that they are being dealt with by the top people, the number one people, while they may not be aware of the technical considerations (and they are very real ones) which are embodied in this suggestion which is now going to be accepted, T would hope that it will not be an obvious learner chairman who is involved when it is actually administered.

I remember that years ago—and I find to my horror that I have been a magistrate now for something like 32 years—you attended your court regularly and you saw how the chairman of the bench, whom you admired, worked; and you learnt your trade, if you like, as a future chairman, from being there and seeing how it was done. That is rather how it is done in Parliament, too, if one wants to be a worthwhile Minister. If this results in it being obvious that on this day the one presiding and the only one who is going to make the comments, as the noble and learned Lord has said, is in fact the learner chairman (I use that term again) of that day, it could have the effect of interfering with the general acceptance of the judgment in a way which may not be altogether helpful. When you are behind a bus carrying a sign on the back saying, "learner driver", you do not quite feel that it is being driven by someone who is as experienced in road usage, and so on, as the real chap who might have been in charge. I am merely saying that, while one sees in theory the good sense of what is embodied in what is now being accepted, one hopes that it will be applied in a way which, even during the transitional period of teaching someone to be a chairman, does not give the impression that the real people are not in charge in handing out a judgment which may be hurtful to people involved in the case.


Perhaps I may say in regard to what the noble Lord, Lord Harmar-Nicholls, has just said that I am quite sure the magistrates will deal with this sort of situation sensibly, and obviously will not throw a tyro into the deep end at an early stage in his magisterial career. In addition, of course, since the days when the noble Lord plunged, unbelievably all those many years ago, into the affairs of the bench, we have started quite a substantial system of training of magistrates, so that training in chairmanship will also have been inculcated. I am very grateful to my noble friends Lady Phillips and Lord Janner for what they have said; and may I say that, while wishing every success to my noble friend Lady Phillips in her new endeavours, I hope it will not keep her away from the bench too long.

On Question, Amendment agreed to.

4.5 p.m.

The LORD CHANCELLOR moved Amendment No. 5: After Clause 18, insert the following new clause:

Membership of Rule Committees.

".It shall cease to be a requirement that the practising barristers included among the persons empowered to make rules of court under section 99 of the Supreme Court of Judicature (Consolidation) Act 1925 and section 50 of the Matrimonial Causes Act 1973 be members of the General Council of the Bar".

The noble and learned Lord said: This Amendment is necessitated by the following circumstances. The Rule Committees which make the Supreme Court Rules and the Matrimonial Causes Rules are each required to include, in addition to other distinguished persons, two practising barristers and two practising solicitors, so that the views of the practising profession may be taken into account when rules of procedure are being made. As the relevant Statutes now stand, both practising barristers have to be members of the Bar Council. Very often, expert assistance may be needed in Chancery matters, for instance, or in family law, and the most suitable person may not happen to be at the time a member of the Bar Council. Furthermore, a barrister who was a member of the Bar Council when he was appointed to the Rule Committee may cease to be so shortly afterwards, so he ceases to he eligible for membership of the Rule Committee and the necessary continuity of membership is lost. The sensible thing clearly is to relax this requirement and enable vacancies to be filled from the practising Bar after appropriate consultation. Perhaps I should explain to your Lordships that the Senate of the Inns of Court and the Bar are content for this change to be made on the understanding that they will be consulted as they have been in the past. I beg to move.


I have no hesitation in welcoming this Amendment. It must be right that the noble and learned Lord should be able to choose for the Rule Committees people who are most likely to be useful members, and I am delighted to think that my profession has been so ready to give assistance in getting rid of this unnecessarily inflexible piece of legislation.

On Question, Amendment agreed to.

Clause 19 [Jurisdiction of ancient courts]:

The LORD CHANCELLOR moved Amendment No. 6: Page 12, line 39, leave out from beginning to ("business") in line 40 and insert ("but any such court may continue to sit and transact such other").

The noble and learned Lord said: This Amendment clarifies the drafting of Clause 19(2) and brings out the basic policy which underlies the Law Commission's proposal. The ancient courts which are referred to in Schedule 4 are to lose any jurisdiction which they still possess (and which has gone into disuse) in theory although not in practice, to hear and determine legal proceedings, but they are to retain their jurisdiction to transact any other business which it is customary for them to transact. In my view, this will appear more clearly if the subsection is amended in the way proposed, and the Law Commission agree with that view.

Perhaps I may take this opportunity to say a few words on the point that was raised by the noble Lord, Lord Clitheroe, on Second Reading. The management of common lands and the regulation of common rights may well be included in the customary business which a manorial court will retain. That is made clear in Part III of Schedule 4, which lists the customary business of certain courts. If, in the cases which the noble Lord mentioned, the steward of the manor was exercising administrative functions of that kind, I see no reason to suppose that he will lose them. Without knowing more of the whole circumstances, I cannot speak with complete certainty, but I think that will be the position; and I hope that that will reassure the noble Lord. I beg to move.


I am much obliged to the noble and learned Lord the Lord Chancellor for having considered this matter. I am sure that the Amendment which he has drafted will make it clearer, and I think that the situation as it prevails at present, at any rate in some places, will be able to continue without any difficulties being caused. I am much obliged to the noble and learned Lord.


The only thing that remains as a scintilla of doubt in my mind about this is the possibility that people may think that the clause that we are now dealing with removes the teeth of any courts which may be sitting to deal with administrative matters but which nevertheless ought to have the backing of the law in so doing. As I recall it, my noble friend's common rights concerned cattle and sheep, and I can well believe that the ancient manorial customs that such a person should have only a certain number of beasts upon the common need to be enforced. Of course, the clause as it now reads abolishes jurisdiction to hear and determine legal proceedings. I think probably what we need to be sure about is that, although the matters that were being discussed by my noble friend Lord Clitheroe do not count as legal proceedings, the courts still have full jurisdiction, I suppose, in the last resort, to insist that whoever it is who is exceeding his number of beasts on the common should abide by the rule and be constrained in the end by the lord of the manor's court not to do so. This is, I believe, the only area of doubt left to me. Clearly, it cannot be resolved today. If my noble friend Lord Clitheroe were to give details of the commons he is concerned with and the powers and the duties of the courts, this could be looked at further. I believe it to be very complicated.


I am grateful for the two interventions. I think the position is safeguarded by the terms of subsection (2) of Clause 19. But I am willing to look at it and receive any parculars that the noble Lord, Lord Clitheroe, may have which may enable me to put the matter beyond peradventure.


I thank the noble and learned Lord for that and for his letter.

On Question, Amendment agreed to.

The LORD CHANCELLOR moved Amendment No. 7:

Page 13, line 5, at end insert— ( ) The descriptions of courts in Part I of Schedule 4 to this Act include courts held for manors of which the Queen or the Duke of Cornwall is the Lord".

The noble and learned Lord said: This Amendment makes Clause 19 bind the Crown. The Bill as it stands takes away the obsolete jurisdiction of, among other courts, courts baron, courts leet and customary courts of the manor. Some of these courts are royal courts, where the Queen or the Duke of Cornwall is the lord of the manor; for example, in the case of the court leet of the Island and Royal Manor of Portland. Since Acts of Parliament do not bind the Crown unless that intention is stated, the clause as now drafted leaves a technical doubt as to whether those royal courts would retain or lose their obsolete jurisdiction, a jurisdiction which, I am sure, the Monarch and the Duke would have no interest or wish to preserve. The purpose of this Amendment is to make it clear that courts leet and courts of Royal Manors, like those other manors, are to lose their obsolete jurisdictions. Her Majesty the Queen and the Duke of Cornwall have agreed that this should be made clear in the Bill; and the Amendment, I hope, does so. I beg to move.

On Question, Amendment agreed to.

On Question, Whether Clause 19, as amended, shall stand part of the Bill?


I must confess that I felt staggered, albeit rather mildly, when I learned from Clause 19, in association with the Schedule on page 28, that the ancient Macclesfield Court of Portmote is to be abolished so far as its judicial functions are concerned. I thought to myself, "Are they trying to tamper with the history of a town I love?"—for anybody who has lived in Macclesfield has learnt to love it. It is a place where everybody knows everybody else and where nearly everybody greets his neighbour by his Christian name. I spent four of the happiest years of my life in Macclesfield. I went there about 55 years ago to join the editorial staff of the old Macclesfield Courier, one of those local newspapers which were founded in the days of the Battle of Waterloo. I found the people were proud of their town and that the mayor on formal occasions, would always refer to it as this "loyal and ancient borough".

I had much to do with the courts in that district. Three times a week I was reporting the borough magistrates' court; once a fortnight the county magistrates' court; and once a month the county court under that eminent Judge Ruegg, perhaps the greatest expert on rents that the law in this country has ever seen. Every quarter, I would be at Knutsford quarter sessions and from time to time at the Chester Assizes if there were any malefactors from Macclesfield who happened to be appearing there.

I thought that I knew everything about the courts in that district so that, when I noticed that the court of Portmote was mentioned, I began to wonder whether I had missed something or whether I had been neglecting my reporting duties. I thought therefore that I would wait a little before I decided whether to bless or condemn this part of the Bill. I have been able to inform myself about the court of Portmote through the courtesy of the chief administrative officer of Macclesfield Borough, the man whom we formerly referred to as the town clerk.

He has sent me a few pages from a history of the borough. This was printed recently to celebrate 700 years of the borough's Charter. May I read a few passages from this historical document: The Portmote of the Borough of Macclesfield met at three-weekly intervals on Tuesdays … it dealt with offenders against the bye-laws for maintaining the quality of food, with disputes between burgesses, with brawls, public disorder and breaches of the peace … the scold was admonished or punished for annoying her neighbours, officers were appointed to supervise the selling of goods and the brewer and baker were … charged with offering an inferior article for sale". This historical account goes on to record many cases in which people were fined two, three or four pence for assaulting their neighbours or breaking the law in some other way. The Portmote also had the duty of appointing the mayor and other officers of the town. One of these officers was the custodian of ale. He had to go about the town tasting the ale for sale at various places and judging whether it was up to standard or not.

Although these fines of two, three or four pence perhaps do not seem excessive today, the document goes on to say: The fines levied were heavy when considered in relation to the value of money". It was our old friend inflation creeping up. It goes on: The labourer's rate at the beginning of the fourteenth century was Id a day; at the end of the century it had doubled and was still rising. Thus a 6d fine would be between two and three days' pay at the basic rate". This Portmote seemed to have had a busy time giving judgment in perhaps 12 or 14 cases every time it met and imposing appropriate fines. It also kept a close eye on the standard of beer sold in the town. It says: It is noticeable that most, indeed all, it seems, of the offenders concerned with the brewing of ale were women; the term ' ale-wife ' is also an indication that brewing ale was a woman's occupation. There were three qualities of ale, strong, `mediocre' and small; each quality was differently priced and for each a standard was enforced". It goes on to say that the price fixed for ale in the days of Henry VIII was a gallon of new ale for three-halfpence and a gallon of olde ale for 2d. Time has marched on since then.

But the Portmote continued to exercise its authority, earning the respect of the populace, for many centuries; until, the document says: the resentment felt in the town at the encroachment of privilege by the Portmote … gathered strength towards the middle of the Sixteenth Century". It goes on: Tumults broke out over the custody of the key to the Guild Hall; apparently the mayor and the steward had been attempting to lock each other out. Feeling ran high and the need for standardising and regularising the machinery of local government must have been felt". So things went on until 1595 when the borough obtained a new charter and when this old court sank into desuetude. Having informed myself on all those matters, I can be quite easy about accepting the proposal that the court shall now be formally and officially abolished from a judicial point of view, and therefore the Bill will have no objection from me.


No doubt this will be tremendously interesting to a great number of people. A lot of people will be very sorry about what is being done. I am ignorant about all this, but I listened with great interest to what the noble Lord opposite said. Has there been any public representation about what is going on now or does no one know anything about it, except what is now being done in the Bill? Nobody has said very much. I should love to know what went on in Newcastle-upon-Tyne, having spent my life there and having been a member of the bench there for years. I have never heard anything about that particular matter. I should like a little more historical fact, if that is possible.


Nothing would give me more pleasure, if I knew the history, than to regale the noble Baroness, Lady Ward of North Tyneside, with the history of the Newcastle-upon-Tyne Courts of Conscience or Requests and Conservancy. It embraces a multitude of aspiration and judicial activity. I expect its activities were as recent as 1595, when we heard of the demise of the Macclesfield court, which was indubitably equitable and no doubt a by-product of the activities of the Lord Chancellor of the time.

All I can say by way of assurance to my noble friend Lady Ward is this; the Law Commission engaged in as wide consultation as they could with all the local interests and local authorities concerned. I have little doubt that they sent someone up to Newcastle-upon-Tyne and discovered that the jurisdiction of that court had been out of use for hundreds of years. One always has a pang of regret about these matters. I remember when I had the honour last year of representing Parliament in Washington. When we loaned one of the original copies of Magna Charta, I did not dare tell Congress that we had repealed all of it except two paragraphs, because that might have seemed absolute blasphemy so far as they were concerned.

That is the position. We have done our best, and if any of these courts continue to have any administrative or business functions at all, they will continue to exercise them. I am not sure what the form is in Macclesfield, whether the Macclesfield Court of Portmote can continue to appoint the mayor, if that is what the inhabitants want. No doubt my noble friend Lord Leatherland, will pursue his inquiries in that direction. He has given a most notable requiem to the Macclesfield court and we have all been very interested in what he has said.


While thanking the noble and learned Lord for his reply, may I say this: he has said that inquiries have taken place wherever possible. But did everybody agree to what is now being put into the Bill? Did anybody object?


I do not think anybody objected to the courts being listed as obsolete. The local historians, no doubt, were of considerable assistance. For once I can give a total assurance to the noble Baroness that nobody objected. This simply removes the accumulation of the obsolete from the administration of justice.

Clause 19, as amended, agreed to.

Clause 20 [Inspection and copying of registers and documents in custody of Land Registry in connection with criminal proceedings etc.]:

The LORD CHANCELLOR moved Amendment No. 8: Page 13, line 35, leave out from beginning to ("to") in line 36 and insert ("make an inspection under this section in relation").

The noble and learned Lord said: This is a drafting Amendment to correct a minor defect in the wording of subsection (1) of Clause 20. It does not alter the substance of the Bill in any way. I beg to move.

On Question, Amendment agreed to.

Clause 20, as amended, agreed to.

Clauses 21 to 23 agreed to.

4.26 p.m.

Viscount COLVILLE of CULROSS moved Amendment No. 9: After Clause 23, insert the following new clause:—

Amendment of Oaths Act 1888 51 & 52 Vict. c. 46

( ). In section 1 of the Oaths Act 1888 the words from "person" to "religious belief shall cease to have effect.

The noble Viscount said: I confess that when I first saw this Bill I did not think that there could be anything left in the way of law reform that had not been included in it. Since then I have been in touch with the Council of the Law Society, and discovered that my fond hopes to start with are far from the truth. The Law Society at the moment are extremely busy with the Law Commission and, therefore, I did not have time to do very much about the points that they have raised. Indeed, this Amendment is the only one that I could draft quickly enough in time for the Committee stage.

I hope that the noble and learned Lord can say a little about this matter, because it has been the subject of quite a substantial study. It was a little while ago, but I am sure that his Department were given a copy of it in 1970, and that he has since had a chance to read it. It appears that those who are nearest to the "front line" in the administration of justice have found that the ancient provisions of the 1888 Oaths Act are really no longer the current scene in court today. The Act provides that everybody shall take the oath unless they specifically object on the grounds either that it is against their religious beliefs to take that oath or, alternatively, that they have no religious beliefs. The Act goes on to say that, even if they do not have any religious beliefs and take the oath, that does not do any harm to the oath, which seems illogical, but I do not wish to tinker with that part.

But when I read this part of the Law Society's document—incidentally, I note that last autumn they asked the noble and learned Lord whether he was going to do anything about it, so at least it is up to date—it rang a bell for me, because only the other day I was in the magistrates' court and later in the Crown Court, and one of my witnesses refused to take the oath. He did so on religious grounds rather than on the grounds that he had no religious belief. But it caused a slight flurry. It caused him a good deal of embarrassment. It certainly made me wonder what was going on. It bears out, therefore, what the Law Society have found by the consultation among their membership; that is, that what usually happens is that, if somebody is not quite sure whether or not they would like to take the oath and they have to make a definite pronouncement why they do not want to take the oath, they just forget all about it and take the oath, anyway. Therefore, it devalues the effect of the oath and nobody really takes the thing as seriously as they should.

I am not going into the much more difficult question of whether we should have an oath any more at all, and whether this is any form of safeguard for telling the truth. I am certainly not going into the question of whether changes in the oath should he accompanied by changes in the law on perjury because that is a very wide matter which the Law Commission are looking into; but this is an apt occasion to raise this small point. It is only going to make it easier for people to take the oath if they wish or to affirm if that is nearer to their ordinary method of pronouncing upon the truthfulness of what they intend to say.

I prefer that if people find the oath meaningless, then they should find it easy to affirm rather than profane the oath by taking it when they simply do not mean it at all. That is what my Amendment is intended to achieve, because all it would do is to give people the straight option, without giving any reason, to affirm rather than to take the oath. So it is a small matter but it seems to me a sensible one, and I hope that the noble and learned Lord will look upon it in a friendly way.


At some time perhaps the noble Viscount would tell us to which religious belief he is referring. In Section I of the Oaths Act 1888, the words "religious belief" occur twice. The Amendment does not make it clear which is meant.


That is because I had to do this in a very great hurry, and I apologise. I am referring to the passage that says, … unless it is contrary to your religious belief or you have no religious belief". I wish to leave out both of those provisions and therefore leave it as an absolutely straight alternative. As usual, it seems I have got the drafting wrong but I hope that it has not misled the noble and learned Lord.


I must confess that I have a great deal of sympathy with the Amendment but I do not know that I would dismiss it as "a small matter". There is a great deal of feeling about this. The suggestion for dealing with it has been expressed in its most extreme form by a proposal that the witness's oath should be replaced entirely by a form of affirmation and that he should not take the oath at all on the Bible or the Testament. But it is the case that the requirement for taking the oath has been with us for many centuries and what I am not sure about is how great a consensus exists among the public at large for getting rid of it. I am not at all sure that the majority of opinion would support getting rid of it. I know that is not the point to which the Amendment immediately refers, but that is one of the problems that have been raised in this connection.

It is very interesting, and perhaps the noble Viscount will bear with me for a moment while I deal with that part of the issue which is sometimes raised in this connection. The Magistrates' Association in 1968 voted by 140 to 130 votes in favour of getting rid of the oath altogether and having affirmation instead. That is an interesting fact. I do not know what the view would be today; but even in the limited form covered by the noble Viscount's Amendment, which I think he has already indicated was suggested by the Law Society in 1970 as an interim measure, designed then to pave the way for full abolition—which he is not advocating—the proposal raises social questions, and of course it touches only one aspect.

Can we really legislate only on the witness's oath without also touching on the juror's oath, and possibly the oath on taking office in a certain context? It is very interesting that when a Life Peer is admitted to your Lordships' House there is simply an oath or an affirmation, without explanation as to the use of the alternative method. So I think this Amendment goes a little wider than the mere question of the witness's oath. We are not concerned at the moment with the drafting aspect, although if your Lordships were disposed to press on with this it would clearly need redrafting, and I would urge that it should be withheld for that reason. Of course, I say that without criticism of the noble Viscount.

The Committee are now considering a Bill making a series of technical improvements in the administration of justice and, frankly, I do not feel happy about the Committee deciding this matter without a full debate and, if I may say so, a larger attendance in which all shades of opinion can be represented, before we can properly proceed with what I consider to be a significant change in the law. I am certainly willing to consider the matter further with my colleagues in the Government to see whether we can get a sound and representative view of public opinion on this matter; but I confess that as at this moment of time, although the Amendment has my full sympathy, I should not be happy if we were to proceed with it today without being sure of the ground upon which we stand as regards public expectation and public experience.


I should like, if I may, to say that I entirely support what the noble and learned Lord has said. The result of a vote taken by the Magistrates' Association in a way rather depends on what part of the country the magistrates came from. I very well remember—although I have not been on the Newcastle-on-Tyne bench for quite a long time—that practically all the witnesses there expected to take the oath. We had a very good bench, and an excellent clerk, and very often the people coming in who would take an oath had already discussed it in the court precincts but not actually in the chamber where the magistrates were sitting. So although there were people who wanted only to affirm, I do not really think that people in Newcastle, if they had to come to the court, would do other than expect to take an oath.

Once again, I feel like saying that quite often in my part of the world we have quite different views from those held in the South and other parts of the country. I would gladly agree that this question should be put off; and then I should really like to know that, when the consultations take place, they take place in all parts of the country because there are very, very different views held on many matters in my part of the world as compared with London. If all the views come from London, I would not pay much attention to them. I like to know that my part of the world has been consulted, because hardly anybody there ever came to court who did not realise at once that they had to take an oath. So I am very grateful for what the noble and learned Lord has said and I hope that he will be whole-heartedly supported by Members of this Chamber.


I am sorry there is not a larger Committee to determine this question but, if I rightly understand the effect of the Amendment, it does not abolish the oath at all.


Hear, hear!


All this Amendment does is to enable people to do what they can do now: choose whether to take the oath or to affirm; but they will not have to give any specific reason for it. That is all it does. In other words, it would put them on the same plane as Peers, who also are perfectly free when they are sworn in either to take the oath or to affirm. They do not have to give any reason, and I do not know that they are any less serious or that they are any the worse for that, or that witnesses generally would be in any different position.

This question sometimes gives rise to a little trouble, or it can do. I remember a case in which a demonstrator was charged with a breach of the peace. When the police had cautioned him and said: "You can't go any further than this", he was alleged to have turned round and waved to those behind him and said: "Come on!" That, he entirely disputed and a number of witnesses were called to say that he never did anything of the kind. Then they were asked: "Were you watching him all the time? He may have done this when you were looking somewhere else." There was one man, obviously his key witness, who was next to him the entire time and must have heard him if he had said it. He had long hair and I am not sure whether he was not wearing jeans. The case came before Mr. Seaton of the London Sessions. The man said he wanted to affirm, and so Mr. Seaton said, "Don't you believe in the Bible?"—to which, not unnaturally, the man said, "What part of the Bible?" Then they got into a very long theological argument, and after Mr. Seaton had said, "I can't think how you ever got into Cambridge", he told him to stand down and so his evidence was never heard.

I was not in this great case, but only on appeal, when I had little difficulty in satisfying a Divisional Court that my client's conviction could not stand, because he had been deprived of his opportunity to call a witness. As they said, the only proper question that a judge can ask under the Act is, "Do you wish to affirm, because to take an oath would be contrary to your religious belief, or because you have no religious belief?" This can cause difficulties and I should be in favour of the Amendment. But it is a pity that we do not have a larger House to express an opinion about it.


If my noble and learned friend says that we shall be able to discuss this matter at a later stage, may I ask whether he is giving an undertaking that something will be put on the Order Paper which will permit it to be discussed, without an Amendment? I have seen this Marshalled List only since I came into the House—it may be my fault; I do not think it is. We are in difficulty over documents and this is typewritten.

When I glanced at the Amendment, I remembered that 1882 was the year of Mr. Gladstone's Administration, after the Midlothian campaign, when Parliament was being concerned. It also appears that this is the termination of what followed, because Mr. Gladstone recorded in his diary his remarkable appointment again as Prime Minister, after he had long resigned the leadership of the Liberal Party. He also wrote that he saw the intervention of Divine providence on his behalf in this matter. As Mr. G. W. E. Russell, one of his supporters and friends, has recorded, within four minutes of Mr. Gladstone appearing in the House the newly elected Member for Northampton, Mr. Bradlaugh, walked to the Table and commenced an argument over oath and affirmation which occupied the best part of several Sessions, and resulted in the greatest possible uproar. The reports of those debates will produce for my noble and learned friend a variety of opinions about the importance of the oath, which will make most instructive reading, and enable him to consider again the implications of this matter.

There was another case raised in the reminiscences of a New York lawyer engaged in the trial of a Tong, where there were 25 Chinese witnesses. The first Chinese witness demanded to take the oath over the newly-severed head of a chicken, and by the end of the second day they found that they had run out of chickens and the case had to be adjourned until the rest of the Tong were able to take their oaths.

My information is now out of date and I do not know the elaborate provisions of the oath, but they provide an interesting literary subject and it may be that there are matters connected with them which the House could consider on the Report stage. As I understand the Amendment of the noble and learned Lord, Lord Gardiner, I entirely sympathise with it, but I do not think anyone wants to press the matter at this moment.


My recollection is that Parliament has dealt with the question of saucers and chickens by the Oaths Act 1961. Therefore, this is no longer a cause for adjournments, and the case which the noble Lord, Lord Hale, mentioned must have been before that date. I am grateful for the interest which has been shown in this Amendment, and for the support that I have received. To start with, I thought that the noble and learned Lord, Lord Gardiner, was inquiring into my own religious beliefs, but now that it is only a matter of drafting I can easily apologise for that. It is interesting that this seems to be the first time that this matter has been discussed in Parliament. Therefore, it certainly would not be my wish to try to draw it to any kind of conclusion today, and I shall in a moment beg leave to withdraw the Amendment.

The only point that concerns me is that if the noble and learned Lord the Lord Chancellor would like a rather wider debate about the matter, I entirely agree with him and would not wish, upon the basis of a comparatively short discussion this afternoon, to enter into a change in the law which is bound to raise feelings, in one way or the other, in a number of people. How does he suggest we might draw in the public, so that they might discuss it? I do not know how many of them read our Official Report, still less how many will persevere with the Committee stage of this Bill. But if he has any suggestions I should be glad to fall in with them, and perhaps he can think of some method of doing it. Otherwise, I am afraid that the matter is likely to drop and we shall miss the opportunity to make a small but worth while Amendment. Has the noble and learned Lord any ideas?


I have no precise idea worked out. I should have thought that this was a problem, as this noble House has expressed some interest in the matter, for Ministers to pursue and seek to gauge opinion in whatever way they can. I am afraid that I have not followed it through with any precision. I am very willing that we should return to it at Report stage, if only to enable me to elucidate that direct question in the meantime.

I confess that my sympathies are with the Amendment, and I am afraid that my speech may have not clarified the fact that it is an Amendment that seeks not to abolish the oath, but to eliminate the embarrassment which has been so graphically illustrated by my noble and learned friend Lord Gardiner in that perfectly shocking story which, as he was apparently counsel in the case, inevitably ended to the satisfaction of the appellant.

But I am very willing to look at the matter again at the Report stage. An Amendment which would eliminate the drafting difficulty could be prepared. There are two references to "religious belief" in Section 1 of the Oaths Act and if it were simply amended to read every person shall be permitted to make a solemn affirmation instead of taking the oath", we could then discuss it, without the embarrassment of the religious convictions of any of us being called in question. Finally, I am grateful to the noble Viscount for having brought this matter forward, and I hope that we shall be able to proceed in that way.


I will take the advice of those who have drafted this correctly for me. It is obviously much better to have it set out in that way, than to do it by reference. Unless anything very strange happens, I will put it down for another try at Report stage in order to enable a number of other people to take part. Meanwhile, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clauses 24 to 26 agreed to.

Clause 27 [Citation etc.]:

4.49 p.m.

The LORD CHANCELLOR moved Amendment No. 10: Page 18, line 19, at end insert ("section 24;").

The noble and learned Lord said: The purpose of this Amendment is to add Clause 24 to the list of clauses which by virtue of subsection (4) of Clause 27 will come into force one month after Royal Assent. I can say, by way of comfort to noble Lords who will be concerned with further business, that most of the remaining Amendments are of a highly technical character. Therefore, it may be that we shall not encroach upon their patience too much in the remaining Amendments. I beg to move.

On Question, Amendment agreed to.

The LORD CHANCELLOR moved Amendment No. 11: Page 18, line 21, leave out ("Subject to subsection (4) above, this Act") and insert ("The provisions of this Act, except section 26 above, this section and the sections mentioned in subsection (4) above,").

The noble and learned Lord said: This Amendment ensures that Clauses 26 and 27, containing the formal parts of the Act, will come into force immediately on Royal Assent. I beg to move.


I hope I shall not be in any way embarrassing my noble and learned friend if I ask him whether he has any rough idea of when those sections, which are not coming into force a month after the Bill receives Royal Assent, will come into force. I think I am right in saying that this applies to Clauses 3, 12, 13, 15(1), 15(3), 17(1), 17(2), 17(3), 17(5), 18, 19, 22 and 23. My belief is that of recent years this practice has very steadily increased. Speaking as an ex-Minister, administratively it is extremely convenient. It means that you can take plenty of time; you do not have to bring a particular section into force until you have all the machinery available. In many cases there is a very good reason for it, and it is very good practice. On the other hand, it very much increases the power of the Executive over that of Parliament.

To take one quite recent example, three or four years ago the right reverend Prelate the Bishop of London and I, and others, persuaded this House—and the other House was similarly persuaded—that a highway is divisible into two. In law there is the carriageway and there is the footway. The carriageways are for vehicles and the footways for pedestrians. We were saying that the quite recent habit of many motorists, because they cannot find somewhere to park on the carriageway, of parking their motor cars on the pavement could be very dangerous to the infirm and particularly to the blind and old people, who very often have to step out into the road to get round the cars. They cannot go along the footway because it is blocked by vehicles. Parliament accepted that argument and said that each local authority was to have a list—because in country districts it may be perfectly all right—of the places where motorists must not park their motorcars on the pavement.

This was three to four years ago, but because there was the provision that sections could be brought into force at any time the Minister liked, the Minister has never liked. It gives the Minister power to sweep away something which Parliament with some care has passed, wants done and believes that it has made law; but it is never done at all because the Minister does not like it or—as in this case, I believe—because the local authority said that it would be a bother. This is a pretty high proportion, is it not, of all the clauses in the Bill? We have no idea at all when they are going to come into force.

In one of the current week's legal papers there is an article on how difficult it is for solicitors and others to find out what parts of an Act are in force and what parts of an Act are not in force. Therefore, without wishing to complain in any way, I wonder whether my noble and learned friend could give us a very rough idea—assuming that he really does intend to make such an order in respect of all these other sections—of whether he has it in mind to make an order in respect of them in, say, three months' time, or whether we are to anticipate a series of commencement orders, which, as I have said, create a little difficulty for practising lawyers.


I cannot resist joining the noble and learned Lord, Lord Gardiner, in his remarks about bringing Acts of Parliament into force at different times. I do not know about it either administratively or executively, but from the point of view of the practitioner it is a nightmare. The other day I had to look up whether a certain Statute, or certain parts of it, had come into force. With some difficulty I found the Commencement No. 4 Order, and, timed about 18 months before that, I eventually discovered the Commencement No. I Order. To this day I cannot find the Commencement Nos. 2 and 3 Orders, and I do not know whether there is a Commencement No. 5 Order. How one is supposed to tell clients whether important provisions are or are not law, I do not know; and that is even after looking up all the places to which fairly well-informed lawyers normally resort. This is something which the noble and learned Lord, Lord Gardiner, has rightly put his finger on as being an increasing menace to a proper knowledge of the law.


I sympathise again with the speeches which have just been made, but the difficulty we are in is that, except for these two clauses, the provisions of the Bill require rules to be laid. While naturally we shall try to combine in one rule as many of the provisions as can be happily wedded together in one, and shall do so as soon as is practicable, I am afraid that I cannot give a time estimate. However, I am very anxious that these changes, which will improve the administration of justice in the special ways we are indicating, should take place as soon as possible. I can give that assurance to my noble and learned friend. This is part of the price one pays for deciding to legislate by exercise of a rule-making power. Of course, it has the great benefit of flexibility and of meeting unexpected situations without one having to go through the log-jam of passing a special Act of Parliament to deal with the situation. A rule-making power has its advantage in that way, as I think will be readily recognised. All I can say is that I shall do my best to ensure that the rules are introduced as soon as may be.

On Question, Amendment agreed to.

4.57 p.m.

The LORD CHANCELLOR moved Amendment No. 12: Page 18, line 33, leave out ("18") and insert ("(Membership of Rule Committees)").

The noble and learned Lord said: The new clause "Membership of Rule Committees", which is to be inserted after Clause 18 by Amendment No. 5, applies only to England and Wales. The effect of the Amendment is to include this clause among those listed in subsection (7) of Clause 27 which extend to England and Wales only. I beg to move.

On Question, Amendment agreed to.

The LORD CHANCELLOR moved Amendments Nos. 13 to 17:

Page 18, line 36, leave out ("above so far as it relates") and insert ("and (4) above so far as they relate").

Page 19, line 3, leave out ("above so far as it relates") and insert ("and (4) above so far as they relate")

Page 19, line 8, leave out ("(3)") and insert ("(4)")

Page 19, line 11, after ("extends") insert ("only")

Page 19, line 13, leave out subsection (11).

The noble and learned Lord said: With permission, I ask for leave to move Amendments Nos. 13 to 17 en bloc. They are technical drafting Amendments to subsections (7), (8) and (9) of Clause 27 which do not affect the substance of the Bill in any way. I beg to move.

On Question, Amendments agreed to.

Schedule 1 [Legal aid, advice and assistance]:

The LORD CHANCELLOR moved Amendment No. 18: Page 20, line 32, leave out ("that") and insert ("such conduct on the part").

The noble and learned Lord said: This Amendment makes a small grammatical improvement to the new section which paragraph 2 of Schedule 1 substitutes for Section 12 of the Legal Aid Act 1974. I beg to move.

On Question, Amendment agreed to.

The LORD CHANCELLOR moved Amendment No. 19: Page 21, line 36, leave out ("the conduct") and insert ("such conduct on the part").

The noble and learned Lord said: This does the same for Scotland as the previous Amendment. It improves the grammar of the new provisions. I beg to move.

On Question, Amendment agreed to.

Schedule 1, as amended, agreed to.

Schedule 2 [Amendments of enactments relating to determination of expenses et cetera]:

The LORD CHANCELLOR moved Amendment No. 20: Page 23, line 26, after ("words") insert ("the").

The noble and learned Lord said: Again, this is an Amendment simply to improve the grammar of paragraph 13(1)(a) of the Powers of Criminal Courts Act 1973, as amended by paragraph 6(a) of Schedule 2 to the Bill, by removing the definite article which would be otiose in the new context. I beg to move.

On Question, Amendment agreed to.

5 p.m.

The LORD CHANCELLOR moved Amendment No. 21:

Page 24, leave out lines 3 to 11 and insert—

("(a) the following subsection shall be inserted after subsection (5):— (5A) Allowances payable under this section shall be paid at rates determined by the Secretary of State with the consent of the Minister for the Civil Service."; and

(b) the following paragraph shall be substituted for paragraph (7)(a):— (a) for prescribing the forms to be used and the particulars to be provided for the purpose of claiming payment of allowances;".

The noble and learned Lord said: The purpose of this Amendment is, first, to improve the drafting of paragraph 9 of Schedule 3 and to qualify the words, "determined by the Secretary of State" with the words, "with the consent of the Minister for the Civil Service". This Amendment reflects the usual practice of requiring Treasury agreement for new rates of allowances. I beg to move.

On Question, Amendment agreed to.

On Question, Whether Schedule 2, as amended, shall be the second Schedule to the Bill?


I wish to ask one short question on this Schedule. So far as the scales of costs to be paid out of public funds under the Costs in Criminal Cases Act are concerned, at the moment the solicitors—and I can quite see that they have a very special interest in this—are represented on the Rules Committee which determines the schedules of costs, and in future it is proposed to do this by administrative action only. Can the noble and learned Lord say a word about what safeguards there will be; whether there will be consultation and what chances the solicitors have of having their view put into effect by the administrative machinery rather than the the present machinery?


I apprehend that there will be consultation, but I should like to look into this point and communicate with the noble Viscount in regard to it. I cannot think that we shall proceed without the usual consultation.

Schedule 2, as amended, agreed to.

Schedule 3 [Maintenance Orders]:

The LORD CHANCELLOR moved Amendment No. 22:

Page 27, line 1, leave out from ("words") to end of line 4 and insert ("from "to" in the first place where it occurs to the end of the subsection there shall be substituted the words:—

  1. "(a) to the prescribed officer of the court by which the order was made, and
  2. (b) to the prescribed officer of any court in which it is registered under Part I of the Maintenance Orders Act 1958.

(3A) On receipt of a notice under subsection (3) above—

  1. (a) any such officer as is mentioned in paragraph (a) of that subsection shall cause particulars of the notice to be registered in his court in the prescribed manner; and
  2. (b) any such officer as is mentioned in paragraph (b) of that subsection shall cause particulars of the notice to be registered in his court in the prescribed manner and shall cancel the registration of the order".")

The noble and learned Lord said: Schedule 3 to the Bill contains a number of Amendments to the 1950 and 1958 Maintenance Orders Acts which would make it easier for a woman in Scotland or Northern Ireland to enforce her maintenance order in England and Wales. Under this scheme an order can be registered, for example, in the High Court in England under the 1950 Act and re-registered under the 1958 Act in a magistrates' court. When the registration of the order in the High Court is cancelled, machinery must be provided for the cancellation of the re-registration in the magistrates' court. The purpose of this Amendment is to provide the necessary machinery by requiring the court in which a registration is cancelled to inform any other court in which the order has been re-registered, whereupon the re-registration is cancelled also. It is very difficult to understand. I beg to move.

On Question, Amendment agreed to.

The LORD CHANCELLOR moved Amendment No. 23: Page 27, line 26, after ("separation") insert ("and aliment").

The noble and learned Lord said: Reference is made in line 26 to "an action for separation" but the reference should be to "an action for separation and aliment", which is the description of the Scottish action for separation and maintenance. This Amendment makes the necessary correction. I beg to move.

On Question, Amendment agreed to.

The LORD CHANCELLOR moved Amendment No. 24: Page 27, line 34. after ("enforced") insert ("orders").

The noble and learned Lord said: This Amendment makes a purely grammatical correction by inserting the word "orders" where it has been omitted after the word "enforced" in line 34. I beg to move.

On Question, Amendment agreed to.

Schedule 3, as amended, agreed to.

Schedule 4 agreed to.

Schedule 5 [Repeals]:

The LORD CHANCELLOR moved Amendments Nos. 25 to 32 en bloc.

Page 33, leave out lines 8 and 9.

Page 33, line 17, at end insert—

("1975 c.20 District Courts (Scotland) Act 1975 In section 17(1), the words "at the prescribed rates" and "at the prescribed rate".")

Page 33, leave out line 46.

Page 35, line 22, column 3, at beginning insert—

("in section 99(4), the words "being members of the General Council of the Bar."")

Page 35, line 27, at end insert—

("18&19 Geo. 5 c. 26 Administration of Justice Act 1928 Section 15")

Page 35 leave out lines 40 to 42.

Page 36, line 15, at end insert—

"1972 c. 67 Companies (Floating Charges and Receivers) (Scotland) Act 1972 Section 15(4)")

Page 36, line 17, at end insert—

("1973 c. 18 Matrimonial Causes Act 1973 In section 50, the words "being members of the General Council of the Bar."")

The noble and learned Lord said: Amendments Nos. 25 to 32 form a series of necessary but technical Amendments which merely tidy up the repeal schedule and are largely consequential on earlier Amendments. With the leave of the Committee I beg to move Amendments 25 to 32 en bloc, with a willingness to explain any one of them if desired by noble Lords. I beg to move.


The Amendments will be placed in a different order from that which is on the Marshalled List. After Amendment No. 27 there will follow Amendment No. 30, then No. 28, then 31, then 29 and then 32. That alteration is purely technical.

On Question, Amendments agreed to.

Schedule 5, as amended, agreed to.

House resumed: Bill reported with the Amendments.