§ 3.3 p.m.
§ Report received.
Viscount COLVILLE of CULROSS moved Amendment No. 1:
After Clause 7, insert the following new clause:
§ Oaths and affirmation.
§ . Any person who objects to being sworn shall be permitted to make his solemn affirmation instead of taking an oath in all places and for all purposes where an oath is or shall be required by law, which affirmation shall be of the same force and effect as if he had taken the oath.
§ The noble Viscount said: My Lords, when the House was in Committee I moved an Amendment on this subject, though I am bound to say that it did not look in the least like this, and the noble and learned Lord the Lord Chancellor indicated that it was the first time that the subject had been discussed in Parliament—presumably since 1888 when the matter was put on the Statute Book—and that he would like to have the view of as many noble Lords, and others outside the House, as possible, because it is a matter that plainly is of interest to a number of people, as the short debate in Committee showed.1174
§ The point is a simple one, but let me tell your Lordships at once what it does not involve. It does not involve in any way either preventing people from taking the oath in court or putting any impediment in their way of doing so, nor does the Amendment make the smallest difference to the law of perjury, or any of the matters in that regard that are at the moment being looked at by the Law Commission. It is a very simple point and a comparatively short one, and it is this. Under Section 1 of the Oaths Act 1888 there is provision whereby those who do not wish to take the oath may instead affirm. The problem that has arisen is that the Statute as it stands at the moment does not just allow them to affirm as a matter of choice; it requires them to give reasons why they wish to do so instead of taking the oath. It requires them to explain whether it may be that they are unwilling to take the oath because it is part of their religious belief that they should not take an oath, as applies to people of certain religious persuasions, or, alternatively, they have to explain that they have no religious belief at all, and therefore they object for that cause.
§ When we were in Committee, the noble and learned Lord, Lord Gardiner, gave a most striking example of an occasion where the most appalling miscarriage of justice arose out of the requirement to make this explanation. I hope that that is untypical, but in my experience I have discovered that there is, to say the least, embarrassment and, possibly, a somewhat startled look on everybody's face when the rigmarole has to be pursued of getting a witness to explain why it is that he does not wish to take the oath.
§ In Committee, I argued that it would be very much better if people who did not wish to take the oath should be given the simple option of affirming without having to give any reasons for it, and on the whole noble Lords who took part in that short debate were inclined to agree. Of course there is the point that if somebody who is perhaps embarrassed and feels awkward in the witness box anyway, is faced with this extra dilemma of having to explain why he wishes to affirm, he will simply take the oath and say nothing about it, although he does not believe in oaths at all. The Oaths Act makes sure that that is all right because it says that if you 1175 take an oath when you do not believe in oaths it is still a perfectly good oath. That is in Section 3 of the Oaths Act 1888. So there is not any harm done, but it tends, I should have thought, to depreciate the value of the oath—something which I for one would wish to prevent.
§ So this simple Amendment is devised merely in order to take away the requirement to give reasons for wishing to affirm, if that is what a witness or, indeed, anyone swearing a statutory declaration or something of that kind, prefers to do. It does no more than that, and it leaves open all the other points that the Law Commission may wish to report upon in due course. So there it is. The idea came from the Law Society, and since the debate in Committee the other day I have heard now from the Magistrates' Association, which has discussed the matter at one of its conferences, and the Association states that it is now in favour of the Amendment being made.
§ When we discussed the matter in Committee, the noble and learned Lord, the Lord Chancellor, said he was inclined to be sympathetic, though he would like further time to think about it. Of course I am entirely in the hands of your Lordships, who may or may not approve this comparatively minor change. But it seems to have the approbation of quite a number of people who are concerned with the conduct of justice, and therefore I hope that it commends itself to your Lordships. I am led to believe that this time it is, at any rate, technically correct. I beg to move.
§ 3.9 p.m.
§ The LORD CHANCELLOR (Lord Elwyn-Jones)
My Lords, it may be convenient if at this stage I were to indicate the view of the Government upon the Amendment. When it was considered in Committee, I expressed the view that it would have been at any rate more desirable if the wisdom of dealing with the subject matter could have been considered in a wider context—perhaps by a Committee with a larger presence than was the case on that occasion. Indeed, I think it might well have been wiser to precede any amendment of the Oaths Act by a more general debate, because the Oaths 1176 Act itself goes much wider than the context of legal proceedings and the administration of justice. That is indeed acknowledged by the noble Viscount's Amendment, No. 8, which rightly seeks to amend the Long Title of the Bill.
Perhaps I should add this. Although the arguments in favour of change are usually put forward, as they were so vividly by my noble and learned friend Lord Gardiner, in the context of the witness's oath because the main difficulties are felt there, the Amendment will of course apply wherever an oath is required by law. It will therefore cover, in addition to witnesses and jurors in legal proceedings, all those oaths which are covered by the Promissory Oaths Act 1868, such as the oath of allegiance; the official oath taken by a number of holders of official office; the judicial oath; and other oaths which could be given by way of illustration. So the proposal has many ramifications.
However, my personal view is that general approval has been given to the proposal. Since the Committee stage I have consulted, as best I could, with the judges. My conclusion is that the modified proposal which the Amendment makes would be welcomed by the Judiciary throughout the United Kingdom. As the noble Viscount has indicated, it already has the support, not only of the Law Society but of the Magistrates' Association, so I think one can safely conclude that those concerned in legal proceedings would find the Amendment an improvement. I certainly have had no representations to the contrary. Perhaps I should emphasise that all those who would prefer to take the oath will of course continue to do so; and, indeed, I would expect that that would remain the usual practice.
Perhaps I should make it clear that I have expressed a personal view today without being certain that all of my colleagues in the Government will agree with it, though certainly those concerned with the administration of justice do. So I cannot guarantee that the provision would receive firm Government support if it came under reasoned attack at a later stage. I do not regard that as a likely contingency; but, subject to that caveat. I myself welcome the Amendment and it accordingly goes forward with my personal good wishes.
§ Lord GARDINER
My Lords, may I respectfully support what the noble Viscount has moved and the degree of accord reached by my noble and learned friend on the Woolsack, who expressed the hope that his colleagues will agree with him. It has been said that the present situation is satisfactory because, of course, Christians take the oath and agnostics and atheists can always affirm, so what is wrong with that? But in fact both those premises are quite wrong. It is not true to say, of course, that all Christians want to take the oath. It was not until 1833, I think, that Quakers of the old Christian sect were sent to prison and submitted to worse punishments than prison for refusing to take the oath; and I well remember, when calling a respected clergyman of the Church of England as a witness in a case when defending Penguin Books, that he refused to take the oath. I believe some of the benchers of the Inns of Court viewed this with some disquiet, because he was Master of the Temple; but before he was Master of the Temple he had been principal of a theological college, and I think he knew his theological oaths. What he in substance said was, "It is very difficult in real life to keep all the Commandments all the time, but here is a very simple one, 'Thou shalt not swear on the name of the Lord thy God '. This we can all do, and every Christian ought to refuse to take an oath". So the first premise is quite wrong.
I think the second premise is quite wrong, too, although here I cannot prove anything; I can only appeal to the extensive experience of advocacy of the noble Viscount and of my noble and learned friend. But I am quite certain, after spending my life in the courts, that every day, in courts all over the country, agnostics take the oath. They do so because they do not want to make a bad start to their evidence, and they think it will look odd if they say they want to affirm, that it will upset the judge or that the jury will not like it. Some of them think that if there is a conflict of evidence the judge is more likely to accept the evidence of a witness who has taken the oath than of a witness who has not taken the oath, which I am sure, as I have told many of them, is quite unfounded; but that is what they think. So both premises are wrong.
It can lead to the difficulties which I exemplified at Committee stage of the 1178 Bill, and which I do not repeat; and, as I understand it—my noble and learned friend on the Woolsack will know this better than me—both the Magistrates' Association and the Law Society support the Amendment. The magistrates, after all, try 98 per cent. of all the criminal cases, as well as those within their domestic jurisdiction; and there are members of the Law Society in every case, both criminal and civil. If both those bodies concur (and they are not, if I may say so, notoriously Left-Wing bodies) this is a reform which I think we can safely achieve.
§ Lord HOUGHTON of SOWERBY
My Lords, I should have thought that 100 years after Charles Bradlaugh's heroic struggle to get into the House of Commons without taking the oath we should have had the position of affirmation much more generally acceptable than it is today, and more free of difficulty and complexity. When my noble and learned friend on the Woolsack began I thought he was going to say that, however desirable this small change in the law in relation to this Bill, it would he better to wait until we could do more. I am grateful to him for not pursuing that line of argument, though I must draw his attention to the report of his speech in column 497 of the Official Report of 16th May, where he is reported to have said: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".But unless my recollection is at fault, when I affirmed on entry to your Lordships' House I was required to say that, having a conscientious objection to taking an oath, I therefore did solemnly affirm. That was an explanation, surely. I deeply resented it at the time, and had I known what I was going to be asked to say when I came in I am not at all sure that I would not have turned back again. But there is an explanation which I think we might as well get rid of in this House as well as in courts of law.
My Lords, while on this difficult subject, may I refer to a case which I reported in connection with this Bill to the noble Viscount, Lord Colville. In a Crown Court case a child who was apparently in difficulties in taking the oath, because it had not been instructed on the existence of God, was stood down. The case was 1179 postponed for a period while this child could be instructed about the existence of God so that it could come back into court and take the oath.
I understand that that situation is not dealt with in the Amendment before your Lordships' House at the moment, and it probably does not come within the scope of this Bill; I do not know. But if that kind of case exists, it shows, again, that it is very difficult to get through life in courts of law or entry to the House of Lords without belief in God; and, although one can respect very deeply indeed those who have these convictions, provision must be made, surely, after all these years, for those who do not hold a religious belief but who nevertheless are as conscious of the difference between truth and falsehood as anybody else, and who, if they solemnly affirm that they will tell the truth, will be as much bound by that as are many people who take the oath. I hope that in welcoming this Amendment to the Bill and the change in the law in this particular context, we can look rationally at other instances in which similar problems arise and establish once and for all the right to make an affirmation without having to explain one's reasons for doing so.
§ The LORD CHANCELLOR
My Lords, in view of the question raised specifically by my noble friend, I wonder whether, with the leave of the House, I may indicate that the provisions of the Standing Orders in this House with regard to taking the Oath of Allegiance were changed this year—since the time the noble Lord took his oath. Now, under the Oaths Act, Lords who conscientiously object to the taking of an oath—and they do not have so to pronounce—may affirm simply by saying:I … do solemnly, sincerely, and truly declare and affirm that I will be faithful and bear true Allegiance to Her Majesty Queen Elizabeth, Her Heirs and Successors, according to Law.That, so I am informed, is all that is now necessary.
§ The Lord Bishop of SOUTHWARK
My Lords, may I say from these Benches that many, if not all, of the Bishops, I am sure, will be only too happy to support the Amendment not only for scriptural reasons, where we are told not to swear 1180 by Heaven, but to let your yea be yea and your nay be nay. And what is more, some of the clergy have always preferred to affirm rather than to take an oath, perhaps because of what is said in Holy Scripture. But certainly among the more rebellious younger clergy, I find that whatever their views may be about oaths on certain matters, when it comes to taking the oath of canonical obedience to the diocesan bishop, they are most reluctant to take it.
§ Lord PANNELL
My Lords, I think that the noble Lord sitting on my immediate left was a trifle inaccurate in his reference to Bradlaugh. With regard to Bradlaugh, he had ideas as a militant atheist about taking the oaths but in the end, his constituency being disenfranchised three times, he was willing to take the oath; but the Conservative Party would not let him. That was the difficulty. It was only Speaker Peel on initiation who stopped the House from continuing to make a fool of itself. He called him straight up to the Table without the oath being administered at that time; and nobody made any difficulty.
I can only say that I have been a magistrate and a Privy Counsellor and I have watched witnesses in court and I have taken the affirmation here. On most of these occasions people have questioned the affirmation, as if somehow the oath was the "done thing" but that, somehow, I was suffering from some aberration. So I think it would be a good idea if we accepted the Amendment here today. I can remember the chairman of a bench of magistrates who wanted to refer to the Lord Lieutenant the question whether I should be allowed to sit. We get all sorts of nonsense of this kind. In the House of Commons you have a card from which you read the affirmation and there is no difficulty about it. I remember the occasion when my noble friend and I were initiated on the same day. I noticed the words that were administered at the time, saying, "Have you a conscientious objection?" But, having a trifle easier conscience than he had, I have never raised the matter since.
§ Lord HALE
My Lords, I will be brief. I intervene only to thank the noble Viscount, Lord Colville of Culross. He not only disposed quite correctly of my 1181 problem about cutting off chickens' heads but also was good enough to indicate to me where I could find Halsbury's Laws of England in the Library and where to find the Oaths section. I was a little shocked to find that that particular one was passed about 20 years before I became a Commissioner for Oaths, which was about 50 years ago. So there has been time for considering the matter.
I only wanted to reassure my noble and learned friend on the Woolsack that, if he will consult the most famous work of the Vice-Chancellor (in Volume I), he will find that in this House in 1820, arising out of the Bill of Pains and Penalties of Queen Caroline, the noble and learned Lord, Lord Erskine, who had occupied the seat which my noble and learned friend now occupies, said that he had an objection based on biblical grounds of a somewhat incomprehensible nature—something to do with the angel walking on the sea, an incident I do not recall in detail. He had specifically asked the Chief Justice of Common Pleas, Lord Justice Eyre, for his advice as to what was the proper course to take when a man objected to taking the oath. The Chief Justice said that the proper words for taking the oath were the words which the witness said would bind his conscience and that nothing could be more sensible and nothing could be better.
Therefore, I think we can say, after 157 years of further consideration of Lord Erskine's remarks, and with the help of the noble Viscount, Lord Colville of Culross, that we are making a step forward which has been adequately considered.
§ Baroness PHILLIPS
My Lords, I am one who has witnessed only too often the strange ceremony where the usher digs the witness in the ribs and says "Take the oath" and then, "What religion are you?" and I have watched the confusion creeping over the faces of the average witnesses who cannot even remember what religion they are—and one hopes the recollection will come before they are finally buried. In this situation one realises the sheer fallacy of the idea that these people recognise that they are bound by something they have sworn by Almighty God. I recall an occasion when the witness said he was a Plymouth Brethren which thoroughly confused the usher who picked up all the Bibles in turn and then returned 1182 to the first one. I have always waited in anticipation for a Chinese to demand that he break an egg; but in all the time I have sat on the Bench this has not happened. I think in this day and age we all recognise, sadly, that to swear by our Maker has very little meaning to many people. But the necessity of getting the truth is important and if they can affirm, then I think this is absolutely essential and I support the Amendment.
§ Lord SHINWELL
My Lords, it seems almost an impertinence to intervene in a debate in which prominent members of the legal profession are playing a part, but we are often instructed in this House to speak from experience—and that I propose to do in this brief intervention. It is now more than 60 years—in fact, it was in the year 1912—since I was involved in a case in which somebody was accused of attempted murder. The incident took this form, not in the court but outside before the court was arraigned. There was a strike and somebody who possessed a revolver fired it, I understand, at me. He missed and, unfortunately, killed somebody who stood beside me. It was said at the time that he killed the wrong man—but that is past history. It came before the court, and the situation almost tempted me to intervene in a debate which took place recently, in the Press if not in this House, about the alleged bias of members of the judicial profession. I do not think I should bring that in, but I am almost tempted to do so. The judge happened to be a man who had been appointed to the Bench for political reasons. It was at a time when a Liberal Government were in Office and a member of the legal profession named Anderson was promoted to the Bench. He tried the case with a jury. I was asked to give evidence because I was so much involved in the dispute which led to this. It was called attempted murder; I do not suppose it was premeditated or deliberate.
I affirmed, because in those days I had studied Darwin and H. G. Wells; not Charles Bradlaugh, he was an orator not a metaphysician or a scientist, and I came to the conclusion that I should not take the oath. But strangely enough it did not make very much difference. That is why I intervene today, because it does not seem to make very much difference how you change the law. One can change the 1183 law but not attutudes. Attitudes on the whole derive from beliefs and convictions which are difficult to amend.
The results of affirming were rather strange. I was immediately asked by the lawyer for the defence: "Why do you affirm? Is it not true that you are a Jew?". Of course that had nothing to do with the case. I had to explain that I was quite accidentally and fortuitously—it had nothing to do with me—born a Jew, because my mother was a Jewess. It happens that one is a Jew if the mother is a Jewess, although the father is not taken into consideration. That is a belief that is held among Jewry.
My affirmation had a profound effect on the case. The jury were obviously not of my opinion and disliked anybody who affirmed. It was unusual to affirm in those days. Even nowadays it is somewhat unusual and is regarded as such by those who sit on the jury. My Lords, what does it really matter if you affirm now? It depends on the attitude of the jury and perhaps on the judge. However free he may be of bias and prejudice and seek to be impartial, nevertheless it is an attitude of mind and it is not difficult to reject it when one is considering matters of this sort.
It seems to me that to amend the law and make it easier for those who appear in court, for whatever reason, to affirm greatly depends on the attitude of the judge and jury, and public opinion at the time which, as we know, changes frequently.
§ The LORD CHANCELLOR
My Lords, I wonder whether I may intervene briefly. Perhaps I should have put earlier a manuscript Amendment, No. 1A as a manuscript Amendment to Amendment No. 1, which reads:At beginning insert—(". The following section shall be substituted for Section 1 of the Oaths Act 1888—").The debate can proceed upon that, and if the noble Lord wishes to intervene at this point, I will move the manuscript Amendment shortly.
§ Lord FLETCHER
My Lords, I intervene for one moment to ask my noble and learned friend the Lord Chancellor a question which I have no doubt is very 1184 elementary and to which no doubt there is an elementary answer. As I understand it, the historic origin for requiring an oath in a court of law was that if a witness, having taken the oath, gave wrong evidence, he exposed himself to penalties of perjury which is obviously a serious offence. I understand that as a result of the Oaths Act or some other Act, the same consequences follow if instead of the witness in court taking an oath, he affirms.
The Amendment on the Marshalled List, as I understand it, is intended to go beyond the practice of taking an oath or affirming in a court of law because it relates to persons who take oaths in all places and for all purposes. As the noble and learned Lord the Lord Chancellor explained just now, it therefore applies to the oath of allegiance, judicial oaths and various other oaths, in respect of which I assume the same consequences of perjury do not apply as would apply in the case of oaths taken in judicial proceedings. I want to ask the noble and learned Lord the Lord Chancellor whether he is satisfied that the consequences of this Amendment have no adverse effects in that respect.
§ 3.36 p.m.
§ The LORD CHANCELLOR moved, as an amendment to Amendment No. 1, manuscript Amendment No. 1A:
§ The noble and learned Lord said: My Lords, it may be convenient ill now move the manuscript Amendment, which is a technical Amendment. The explanation is that Amendment No. 1 as printed on the Marshalled List does not insert the new section into Section 1 of the Oaths Act 1888 as a substitute for the existing section. That is what it should do. If the matter were left as it now stands there would be two conflicting sections in the Statute Book, Section 1 of the Oaths Act 1888 and the new section which will be inserted under Amendment No. 1 to this Bill. Accordingly, I beg to move Amendment No. 1A as a manuscript Amendment to Amendment No. 1.
Viscount COLVILLE of CULROSS
My Lords, may I reverse the roles for one moment and tell the noble and learned 1185 Lord the Lord Chancellor that I am inclined to accept his manuscript Amendment? I had thought that there might be another way of doing it, as there are several consequentials following upon this matter, which is merely to repeal Section 1 of the 1888 Act by way of a repeal Schedule. But I should think his method is at least as neat and will keep all the provisions as to oaths, including Section 3, in the same Act—at any rate notionally. So far as Lord Fletcher's question is concerned, there is not anything that he should be concerned about; if he were to look at the existing law he would see that it has been precisely and exactly reproduced, except for leaving out the provision which requires reasons to be given for taking the affirmation. This particular new clause will therefore have the same effect in the same places and on the same occasions as does the existing law, and no change whatever has been brought about by it.
I thank very much those noble Lords and the right reverend Prelate who have supported this Amendment. I am very glad that it has found universal favour in this House. Perhaps I may say something to the noble Lord, Lord Shinwell, and others who have been concerned about those who affirm and the effect that this may have upon juries and judges. I suppose there will be some communication which will go round the courts drawing attention to the fact that if this particular provision becomes law, it is no longer necessary for the usher to require that reasons be given where affirmation is chosen.
I should have thought that it might be possible that the essence of some of the things which have been said about the value of affirmations, when they are given, could be incorporated in that word of guidance. I do not know whether that appeals to the noble and learned Lord or indeed to the right honourable gentleman the Home Secretary who will be doing a similar job for the magistrates. It is a by-product of this debate that we have had, as it were, the affirmation of the affirmation as being something that should be taken as a matter of course and something which is not queried or looked upon in any way askance. I am very grateful for the reception of this clause; I hope it will, as amended, now find its place in the Bill.
§ On Question, Amendment to Amendment agreed to.
§ On Question, Amendment, as amended, agreed to.
§ 3.40 p.m.
Viscount COLVILLE of CULROSS moved Amendment No. 2:
After Clause 10, insert the following new clause:
§ Appeals from the Crown Court as to costs.
§ 1967 c. 80.
§ . Notwithstanding anything in section 10 of the Courts Act 1971, an appeal shall lie to the Court of Appeal, with the leave of that Court or of the judge making the order, from an order of the Crown Court, relating to trial on indictment, as to costs only, or in the exercise of the court's powers under section 76 of the Criminal Justice Act 1967.
The noble Viscount said: My Lords, within the last three years there have come before the courts two rather strange cases. Nobody ever tells the story of a case better than the noble and learned Lord, Lord Denning, Master of the Rolls, and this is what he said in December, 1974:
There was a circuit judge trying a case in Nottingham. Everything was ready; everyone was there; counsel, court officers, witnesses and police. Many jurors had been summoned and were waiting at the back of the court. When the man was put up his counsel rose and asked for an adjournment. He said that a witness for the defence was so ill that she could not attend the court. He wanted to have her evidence taken before a magistrate so that her deposition could be used at the trial. The judge granted the application but he was very upset. He thought, from something he had been told, that the solicitors for the defence had been at fault. To add to it, they were being paid out of the Legal Aid Fund. So, to cut the story short, he made the solicitors personally pay the costs of the adjournment.
It was not, however, the solicitors' fault. I am sorry to say it appears from the record that it was counsel's fault. At any rate, it certainly was not the fault of the solicitors; there were a few hundred pounds involved and they wished to appeal, because it was not right and it was not fair.
A very great deal of research took place and everybody came to the conclusion that it could not really be done. But the Court of Appeal were not inclined to turn people away who wished to argue the point, and so it was in fact argued out in the Court of Appeal and full judgments were given. The Court of Appeal in fact came to the conclusion that they had no jurisdiction at all, and
no more did any other court, to do anything about this. This is what the noble and learned Lord, Lord Denning, said at the end:
In my opinion the circuit judge (sitting in the Crown Court to try a case on indictment) had jurisdiction to order the solicitors to pay the costs personally; but there is no procedure by which the solicitors can challenge the order in any higher court. This seems to me very unfortunate. But we can, I think, do something to remedy the injustice. We can express our views on the matter in the hope that what we say may be heeded by those concerned.
§ He then went on to suggest they could give an immediate, rather informal, relief to the solicitors because, as nobody appeared to be very keen on enforcing the judgment, they (the Court of Appeal) suggested that perhaps nobody should do so. Nevertheless, there it was and there was no jurisdiction at all in anyone to put the matter right. When the noble and learned Lord appealed to those who may be concerned in that, he was appealing to Parliament.
§ A slightly similar point arose a year earlier, and perhaps I need not go through the whole story. Three members of a family were tried at Newport Crown Court in Wales. They were all acquitted, and other prosecution charges were not proceeded with. They were legally aided, but the judge decided he wanted to look at the contribution that they ought to make towards the legal aid costs. After a good deal of to-ing and fro-ing, in which I think the judge thought they were not being very co-operative, he imposed on each of them a fairly large contribution order, in the terms of £7,000 to £8,000. The defendants thought that was unfair and they wished to appeal. They, too, found, having taken the matter to the divisional court on certiorari, that neither that court nor anybody else could do anything about it; there was no appeal of any sort or kind to anyone.
§ It seemed to me, as this has been drawn to my attention by the Law Society and has also been commented upon in some of the legal periodicals, that this was an occasion when Parliament ought to look at this matter because if the Court of Appeal is on record as saying some firm things such as I have read out, I believe that Parliament ought to be careful to try to put things right as soon as may be. The remedy that I have put down in this 1188 new clause looks rather complicated but it does in fact allow both those cases to be reconsidered by the Court of Appeal on appeal, but with one important proviso. Under the Amendment I have drafted, the person who wishes to appeal has to get leave. He has to get the leave either of the trial judge or, if he cannot do that, he has to get leave from the Court of Appeal themselves. As your Lordships will instantly appreciate, the point of that is that one does not want to have a mass of completely vexatious and frivolous appeals. This is a common device which attempts to stop that.
§ I do not suppose that appeals against orders for costs alone—because that is what this is— or legal aid contributions, would be all that common; but it seems very strange that one of the by-products of the Courts Act—which this is—has been the possibility of very real injustice being done to people who are appearing before the Crown Court without there being any possibility of them appealing. Even Crown Court judges can make mistakes. Of course they all try not to, and I do not suppose they do so very often; but even judges are fallible and the Court of Appeal are there to put these things right, but of course they need the power to do so. I hope this Amendment appeals to the noble and learned Lord and also to other Members of the House, although I shall not he in the least surprised if I am told that my drafting is wholly inadequate. I beg to move.
§ 3.48 p.m.
§ The LORD CHANCELLOR
My Lords, this is not an easy matter; indeed, refusing facilities for appeals is not something that one readily lends oneself to doing. But I am afraid there are very serious difficulties standing in the way of what the noble Viscount has proposed. The chief obstacle to providing an avenue of appeal in regard to an order for costs is the difficulty the Court of Appeal would have in forming an opinion on the merits of the decision by the trial court. Where costs have followed the outcome—that is to say, where they have been awarded against a convicted defendant or in favour of an acquitted defendant—it can be generally assumed that the court's decision was right and that no appeal would be justified. The more difficult case arises— 1189 and I imagine this is what the noble Viscount has in mind—where the Crown Court has refused to award costs to a successful defendant or has mistakenly, as the noble Viscount has indicated in the particular case affecting a solicitor, awarded costs against the solicitor.
The basis upon which an order for the payment of costs in favour of an acquitted defendant should be made is now set out in a Practice Direction made by the Lord Chief Justice on 5th June 1973. The substance of that Practice Direction is that where the court has power to award costs out of central funds (as it may do where the offence is indictable) it should do so in favour of a successful defendant unless there are positive reasons for making a different order. That is the general rule. Among the examples of such positive reasons are where the defendant's own conduct has brought suspicion on himself and may have misled the prosecution into thinking that the case against him is stronger than it really was, or where there is ample evidence of guilt but there was an acquittal on account of a mere procedural irregularity, or where the defendant is acquitted on one charge and convicted on another. The view has generally been held that these are fair and reasonable tests to apply.
The same tests can be applied to the question whether a defendant who has been legally aided should be required to make a contribution to the legal aid fund. But, I think it would be very difficult for a Court of Appeal to apply these tests, unless indeed there was a complete rehearing of the case, and not necessarily even then. If one can take the example of a defendant who is acquitted on account of a procedural irregularity, as in some of the breathalyser cases that have been tried, the trial judge who has ruled on the procedural irregularity will be in a good position, having heard all the evidence in the case, to know whether there was in fact ample evidence of guilt; but an appeal court could form an opinion on this only by going through all the evidence. If the ground of refusal is that the defendant has brought suspicion on himself by his own conduct, this would be even more difficult for an appeal court to assess, since so much depends on matters not readily ascertainable from a written record, such as the demeanour in court of the accused and his witnesses, and other indications of 1190 the kind which are perfectly plain to the trial judge himself, but not ascertainable in retrospect.
It is true that the trial judge might not apply the criteria in the Practice Direction, but apply some quite different criteria, and that if the judge gave reasons then a remedy by prerogative order ought, perhaps, to be made available. But if the trial judge gives his reasons, this may turn out to be positively harmful to the defendant; for example, if the trial judge were to be obliged to say in terms that, despite the procedural irregularity, there was ample evidence of guilt, that would indeed by very unfortunate to the accused. The judge would be faced with a choice of criticising the acquittal of a defendant, or of awarding him his costs out of public funds when it would be quite unwarranted to do so.
I recollect as an illustration of a, perhaps, improper conclusion of a case by a judge, that he said, after the accused had been surprisingly acquitted by a Limerick jury, "You leave the court without a stain on your character, except that you have been acquitted by a Limerick jury" It would not be a very satisfactory conclusion. The noble Viscount, Lord Colville, has referred to the perhaps rather special case in which defence solicitors were ordered personally to pay the costs occasioned by an adjournment, which the trial judge considered to have been necessitated by a fault on their ow[...] part. He has reminded your Lordships of the conclusion of the Court of Appeal, that they had no jurisdiction to hear an appeal against this order, although they thought that the trial judge had made a mistake which amounted to a denial of justice.
The question of whether costs may have been wasted by the failure of a solicitor or counsel to conduct the proceedings with reasonable competence and expedition, and therefore that the costs thrown away should be borne by that solicitor, is now covered by two practice directions, one relating to costs from central Government funds, and the other to legal aid. They were made in February this year. These provide that the right course, in such a case, is for the judge to specify as precisely as possible the matters which appear to raise this question, and I to draw these to the attention of the taxing 1191 authority. If the judge has done this, the taxing authority is required by the practice directions to afford an opportunity to the solicitor or counsel concerned to make representations in relation thereto, and may also consult the judge. Although, therefore, this is not a formal appeal procedure, I hope the noble Viscount may think that it has dealt with the substance of the problem and now seems to be working satisfactorily.
So that, in view of these serious practical difficulties and the practice directions of the kind that I have mentioned that have been introduced to deal with the situation, I hope the noble Viscount may feel that, the matter having been raised in this way, it may not be necessary to press the Amendment which he has moved.
§ 3.55 p.m.
Viscount COLVILLE of CULROSS
My Lords, I am grateful to the noble and learned Lord for that full and reasoned response to this Amendment. I am bound to say that I am afraid I did not know of the practice directions, and I am very glad to hear of them. I certainly would not intend to press this matter, but it occurs to me that most of the practical difficulties of which he has made so much are exactly the same as apply in civil litigation, and that one would have almost exactly the same problems arising in, for instance, a witness action in the Queen's Bench Division, or indeed in any other civil forum, which, so far as I am aware, has never prevented questions of costs going to the Court of Appeal where the whole matter has been resolved perfectly satisfactorily. So I suggest to the noble and learned Lord, although I appreciate that there are differences between civil and criminal procedures and courts, and also that we are dealing with public money and funds other than those of the parties concerned, that there are also similarities.
Since Administration of Justice Bills come along from time to time, I would earnestly request that he should ask his Department to note this as being an area which may not have been entirely satisfactorily resolved under the legislation of the Courts Act, and it may therefore be that further thought will in due course have to be given to it. But I certainly 1192 would not wish to take the matter any further today. It may, of course, be that those in another place who see the report of this debate will have their own views upon it, and I certainly would not wish to indicate one way or another what might happen there. But as the noble and learned Lord has said, we have had an opportunity to ventilate this matter, which has evidently upset the Court of Appeal and the Divisional Court for the lack of their own jurisdiction. So that, for this afternoon, I should like to leave it there if I may, and I beg leave to withdraw the Amendment.
§ The LORD CHANCELLOR
My Lords, I am most grateful to the noble Viscount and I will certainly give him the undertaking to examine this matter further.
§ Amendment, by leave, withdrawn.
§ Clause 14 [Right of audience in county courts]:
§ 3.57 p.m.
The LORD CHANCELLOR moved Amendment No. 3:
Page 9, line 28, leave out ("solicitors' employees") and insert ("persons in relevant legal employment").
§ The noble and learned Lord said: My Lords, with this Amendment it may he convenient to consider Amendment No. 4. During the Committee stage of the Bill, the noble Viscount, Lord Amory, moved an Amendment to this clause. The purpose of the Amendment was to enable designated categories of employees, who are not employed directly by solicitors but in the legal departments of local authorities, a right of audience in county courts. Although I accepted that Amendment in principle, I felt that his draft did not achieve the right result, but I undertook to deal with the matter on Report.
§ These Amendments carry out that undertaking. They will enable a right of audience to be given not only to employees of solicitors in private practice, but also to persons employed by local authorities, or other corporate bodies, or by the Crown, to assist a solicitor in the conduct of litigation. I place great importance, as does the noble Viscount, upon the maintenance of proper professional standards, and upon the fact that the public interest in maintaining 1193 those standards should be safeguarded. That is, I think done by the requirement that a person exercising a right of audience must be assisting a solicitor, and therefore will be able to act only while under the supervision of a solicitor. Accordingly, I have been happy to redraft the noble Viscount's Amendment and I hope that it now meets his wishes in regard to the point that he raised. My Lords, I beg to move.
§ Viscount AMORY
My Lords, since I have seen the noble and learned Lord's Amendment, I have not had an opportunity to consult with the authorities who were concerned with the wording of the provision as it stood. So far as I can see, the Amendment which the noble and learned Lord has brought forward exactly meets and covers the kind of cases that I mentioned when I moved my Amendment. The individuals I was thinking about were those who certainly would have a senior on the same staff of the authority, who himself or herself would be fully legally qualified. Therefore I should like to thank the noble and learned Lord very much for the trouble he has taken and say how gladly I welcome his Amendment.
§ On Question, Amendment agreed to.
§ The LORD CHANCELLOR moved Amendment No. 4:
Page 9, line 32, at end insert—
("( ) In subsection (1) above, relevant legal employment "means employment which consists of or includes giving assistance in the conduct of litigation to a solicitor whether in private practice or not.").
§ On Question, Amendment agreed to.
Viscount COLVILLE of CULROSS moved Amendment No. 5:
After Clause 16, insert the following new clause:
§ Interest on County Court judgments.
§ "99A.—(1) Every judgment debt shall carry interest at such rate percent as may be prescribed from the time of entering up the judgment until it is satisfied, and such interest may be recovered under Part VI of this Act.
§ (2) Section 44(1) of the Administration of Justice Act 1970 shall have effect as if there were inserted therein after the reference to secton 17 of the Judgments Act 1838 a reference to this section.".
§ The noble Viscount said: My Lords, I am afraid that this is another new point, 1194 but perhaps one which is worthy of consideration by the House. Your Lordships will remember that this Bill pursues a course, which has been going on for a long time, whereby the financial jurisdiction of the county courts is increased. Indeed, I think we were told at an earlier stage that the job has now been completed. The whole of the process of increasing that jurisdiction, as inflation rolls forward, is now contained, with the addition of this Bill, in regulation-making powers that the noble and learned Lord can exercise from time to time without any further need for legislation. So there are now very substantial sums of money which can be involved in litigation in the county court. In particular, noble Lords will see that in the Admiralty jurisdiction of the Bill the sum of £15,000 is involved.
§ The House will know that if you are a litigant and you bring your action in the High Court when the subject matter is within the financial jurisdiction of the county court, you are liable to be in very grave trouble because you will not get your costs, even if you win, on the High Court scale. You are liable to be told that you will be given costs only on the county court scale. There is, therefore, a grave financial penalty in going to the High Court when you should have gone to the county court.
§ If, on the other hand, you win in the county court and the sum involved is fairly large, there is one little difficulty. Under the Judgments Act 1838 there is a provision whereby interest is payable on judgment debts after the decision has been made. The original figure was 4 per cent. In Section 44 of the Administration of Justice Act 1970 powers have now been taken to alter that percentage by Statutory Instrument. I am bound to say that I do not know what the percentage is at the moment, but I should think that it is higher than 4 per cent. If it is not, it ought to be.
§ This is the remedy for the successful litigant who finds that his defeated opponent is still not all that anxious to pay the sum which has been adjudged due by the court. Unfortunately, however, this provision does not apply to the county courts, and never has. Therefore, when we put up the jurisdiction of the county court and penalise the person who, if the matter is within the county court's juris- 1195 diction, goes to the High Court instead, we also penalise him in the opposite direction, because we do not provide for any interest to be payable on the judgment of the county court judge. It is in order to put that right—and I feel fairly sure that it ought to be put right—that I have brought forward this Amendment. I beg to move.
§ The LORD CHANCELLOR
My Lords, again I am afraid that beneath the apparent simplicity of the noble Viscount's Amendment there lurk a large number of difficult practical problems. Although it may one day be possible to go some way towards meeting the point that the noble Viscount has raised, with which I confess I am in sympathy, I do not think that it will ever be practicable to allow interest on all county court judgment debts. The Payne Committee on the Enforcement of Judgment Debts examined the problem carefully and fully and reported in 1968 as follows:We are of the opinion that [creditors] ought to recover interest on county court judgments exceeding, say, £100. Very difficult questions arise, however, with regard to the calculation and collection of interest on small judgments, especially when paid by instalments and we think this problem requires detailed examination. It should, however, be deferred until after changes in the substantive law relating to interest on contracts has been studied and revised to bring it up to date with current thought".The question of interest on debt has been referred to the Law Commission and I hope to receive their report during the course of this year. I venture to think that it may be wise to follow the advice of the Payne Committee: to wait upon the conclusions of the Law Commission on interest on damages and other kinds of debt which they are considering and then perhaps to return to the matter. I believe that we should do so, because a point of substance is raised in the Amendment.
Perhaps I can briefly mention some of the difficulties—they are not fanciful ones—which are involved in interest on county court judgments. First, a large number of judgment debts in the county courts are ordered to be paid by instalments. That does not apply in the High Court. This immediately poses a problem about the calculation of interest. Is the amount of interest to be calculated on the original amount due or on the balance remaining 1196 on a particular date, such as the issue of execution, or is it to be included on a monthly, weekly or even daily basis until payment? I am advised that it is very difficult to devise a system which is sure to be fair both to debtor and creditor in those circumstances. Moreover, we must remember that interest is payable to a creditor by way of damages for keeping him out of his money. Should it then be recoverable where the court has itself granted the debtor the indulgence of payment by instalments because he is unable to pay the full amount at once?
Secondly, there is the question of who should calculate the interest. It would impose a considerable burden on the court staff to perform this service on all the small debts payable through the county court; and yet, since the debtor is usually unrepresented, it would hardly be satisfactory to leave the calculation to him or to the creditor. But although money due under judgment is usually paid through the court, it is sometimes paid directly to the creditor and the court may have no knowledge of a particular payment. Therefore the court may not be in a position properly to calculate the interest due at the time when execution issues.
These are some of the practical difficulties which I am advised stand in the way of the proposal and which were acknowledged by the Payne Committee. I do not think it would be right to try to deal with them in the context of this Bill, but I readily acknowledge that the matter does need to be examined further. Certainly I undertake that this will be done, particularly in the light of the anticipated report of the Law Commission. Accordingly, while I am grateful that the problem has been raised, probably it is too difficult and controversial to attempt to deal with it in this Bill, which we hope will achieve its passage without the necessity of a Second Reading in another place.
Viscount COLVILLE of CULROSS
My Lords, once again I am grateful to the noble and learned Lord for having given this matter the thought which I am glad to find he also agrees is its due. I entirely see that there are difficulties about some of the problems that the noble and learned Lord has raised. I should have thought, however, that some of them could be avoided by placing a lower limit upon the size of the judgment debt that 1197 would start to attract interest. This could no doubt be changed from time to time by regulations as inflation sweeps forward.
Also it occurs to me, not having, I am afraid, studied this with anything like the care which is its due, that there may be something to be said for the judge himself identifying cases where he thinks that interest should be paid. Therefore, there would be a certain amount of discretion whereby the problem of instalment payments could be avoided without at the same time letting off the debtor who is adjudicated as being due to pay a large sum all in one piece, because plainly in those circumstances it is unfair to the successful plaintiff to be done out of his money and also not to receive interest on the period during which the defendant has not paid.
If the noble and learned Lord is saying, as I believe he is, that the Law Commission either are looking at, or will look at, the whole question of the machinery whereby interest on judgment debts can be dealt with in the county courts, then of course I am happy to await the report from the Law Commission. But I was not entirely sure whether in fact the Law Commission were doing that at the moment or whether they were looking at cognate matters and that the matter would have to go back to them for this particular point to be examined again. After all, if the Payne Committee did not come to any conclusions upon it, somebody will have to do so and if the House would give the noble and learned Lord leave to say one more word about this matter I believe we should be enlightened. I should be glad to know whether he could say anything on this point.
§ The LORD CHANCELLOR
My Lords, I am not sure that I can go quite so far as to undertake that the Law Commission are considering the whole machinery for the assessment and enforcement of payment of interest on damages. They are reporting on interest and damages and the other kinds of debt, but I confess that without notice I cannot say how far their inquiry will go into the matters we are considering. I would expect that they would enter upon the substance of the problem, and certainly in the light of this discussion I shall draw the attention of the Law Commission to the problems which have been identified here and encourage 1198 them perhaps to enlarge the scope of their study and work if it does not already embrace the problems raised by the noble Viscount in this Amendment.
§ Lord HALE
My Lords, I should like to say to the noble Viscount, who is never discourteous and I certainly would not accuse him of that, that I was the only undistinguished member of the Payne Committee which was presided over by Mr. Justice Withers Payne, a most courteous, cultured and, to some extent unfortunately, the most patient person, because we sat for four years and we had the present Queen's Remembrancer coming in with the speech of Charles James Fox and conversationally it was almost like the Mermaid Tavern nearby. Four years of solid work went by and whenever I have had the privilege of seeing any members of the Payne Committee they have complained that their work has been to some extent ignored in the process of legal reform.
They have been somewhat submerged, and although the laborious programme for county courts has been adopted—and I am told it is working well in respect of the elaborate and carefully considered procedures brought forward by the Payne Committee—there are some other matters which I hope will be looked at again. At any rate I can say that the utmost care was taken on that Committee, which was my last performance. I had been on the County Court Committee 20 years before under Mr. Justice Jones, but because of the nature of the membership of the Payne Committee an enormous amount of work was put in and an enormous amount of energy expended, and by many of them a good deal of brilliance was shown.
Viscount COLVILLE of CULROSS
My Lords, if I may have leave to continue with the speech I was making a moment ago, the last thing that in any circumstances I would wish to do would be to be discourteous to the noble Lord, Lord Hale, or to any of his colleagues on the Payne Committee. I certainly do not think that I said anything that would have given that inference, and if I did, I at once withdraw it. What I was pointing out was that it seemed that the Payne Committee themselves had not gone into the difficulties—or, at any rate, all of the difficulties—which have now been identi- 1199 fied by the noble and learned Lord the Lord Chancellor, let alone suggested what should be the solutions.
What we have now had promised—and this I am very grateful for—is further study of this matter so that when the Law Commission look at the substance they may also look at it against the background of the machinery whereby the substance would be dealt with. I do not really think they could produce a completely satisfactory solution to this if they did not follow through the administration in the county courts of any particular reforms that they were proposing to the noble and learned Lord in due course.
The noble and learned Lord has been very generous and has gone a long way towards helping me on this. I am grateful to him and we shall look forward in due course to the results of the labours and to see what legislative chance we may have to put them into force.
§ The LORD CHANCELLOR
My Lords, again, as I said before, I am not quite sure of the whole context of the Law Commission's study but I will certainly invite them to consider the points that have been raised today. I usually find them most receptive to such approaches.
§ Amendment, by leave, withdrawn.
§ Clause 17 [Register of county court judgments]:
§ 4.17 p.m.
Viscount COLVILLE of CULROSS moved Amendment No. 6:
Page 11, line 4, leave out from ("words") to ("such") in line 5.
§ The noble Viscount said: My Lords, I do not know whether the noble and learned Lord might consider that we could speak to his Amendment No. 7 at the same time as this, because it is all on the same subject. I am afraid it is a return to the question of the register of judgment debtors. Noble Lords who may have followed this matter at previous stages of the Bill will know that there is prepared and held a register of those who fail to pay 1200 the debts that they are adjudged due to pay by the county court within 28 days of the judgment if the sum is £70 or more. Although this is a very ancient procedure, and indeed the sum of £10 was fixed—and I hope I get it right this time—in 1852. it has never been changed since.
§ On the other hand, I have suggested to the House before that whatever may have been the original purpose of this register it is now found to be an extremely useful procedure whereby credit reference agencies can compile lists of bad payers. It is widely used in the retail world and, indeed, there is tremendous reliance placed upon it by the whole of the credit industry. I hope it is not an impertinence on my part to say this, but it seems to me that it is possible that, although the noble and learned Lord's Department has, as I know, been in discussion with those who are avid users of the list of debtors that proceeds from this particular register, they have not anticipated that there was going to be a Bill at this particular juncture this Session in which reforms were going to be made. We all know that perhaps this has come forward because of the demise of other legislation, and they have not had a great deal of time to discuss with the noble and learned Lord's advisers the implications of what he wishes to do.
§ In the Bill as it stands the noble and learned Lord is of course providing for two things. One is to raise the limit of £10 which I mentioned to £50, and his Amendment now suggests that it should go back to £30, whereby anybody who owes £30 or more after 28 days goes on the register. My Amendment—although I understand that yet again I have the drafting wrong—was intended merely to keep the £10 for the moment and provide that it could be altered in either direction by regulation at some later stage when further consultations have taken place. There will, of course, be provision for regulations anyway, because that is in the Bill as well as the £50 provision.
§ What I am really asking the noble and learned Lord is this. Will he consider one further look at this matter, because I am told by those who say that they are voicing the views of the whole of the credit industry and some extremely important retail organisations, and incidentally are supported by the official consumer protectors in this country, that this has not 1201 been fully thought through. I am told that if the limit is raised, say, to £50 it will involve enormous numbers of people, who thereby, although bad payers, do not appear on the register, to obtain credit and then to run into debt.
§ I am told by those who are in the front line in this that the result of this will be that inevitably it will put up the price of all those goods and services which are obtained at the moment on credit because the people who do pay will have to bear a number of bad debts of the people who do not pay; and the reason why the people who do not pay do not do so is that they were given credit when they should not have been, because the noble and learned Lord has increased the figure to £50 and therefore they have not been spotted. So the argument goes.
§ The noble and learned Lord says—and I entirely understand the point—that it is a very expensive process, not only in terms of cash but in terms of staff. But, as I mentioned in Committee, I am led to believe that there is a certain amount of willingness on the part of those who use this register to make payments, possibly even in addition to what they are already being charged, for the information that the register contains because it is so extraordinarily accurate and so extraordinarily useful to them.
§ What I am, therefore, putting to the noble and learned Lord is this: he will have in the Bill a new power to make regulations which he has never had before, and this gives him a flexibility which did not previously exist. I expect him to use that power to make regulations in due course. All I ask is whether he would be prepared to take out the figure for the moment until there have been further discussions with those using the register, because they feel very strongly about it and they forecast the kind of results that I have indicated.
§ I am not suggesting the noble and learned Lord should not change the matter. I am simply trying to ensure that we do not move away from £10 until we have a workable scheme to put in its place. With the greatest respect, although £30 is probably better, I do not think that it is necessarily the answer. I think there is a case for a further look at this, preferably in conjunction with the users 1202 of this information. Therefore, I hope the noble and learned Lord will not close the door altogether to something of that kind. I beg to move.
§ The LORD CHANCELLOR
My Lords, the noble Viscount has indicated that the purpose of his Amendment is to leave the figure of £10 in the Statute as the amount which requires a judgment debt to be entered in the register of county court judgments if it is not satisfied within 28 days, but to add the power for the Lord Chancellor to alter the figure of £10 by regulations made by Statutory Instrument.
The Amendment in my name, Amendment No. 7, reduces the figure of £50, which is now in the clause, to £30, providing, therefore, for an increase of from £10 to £30 in the present provisions, in order to bring them more into line with the reality of the position. As the noble Viscount has pointed out, the figure of £10 was adopted as long ago as 1852. The £50 basis, which I originally suggested, was not, therefore, thought to be an excessive increase in the light of inflation. In view of the difficulties that have been put forward today and after the Committee stage, I have suggested the compromise figure of £30.
The difficulty here, of course, is that there is a certain conflict upon this matter between the views of the credit reference industry and the Government. The fact that a person has failed on one occasion to pay a debt of £10, or even £5 or less, is a matter of interest to someone who is thinking of extending credit to him on a later occasion; that I do not deny. But it has never been thought right to impose on the Government the burden of keeping a register of trifling debts. Therefore, a reasonable balance has to be struck between the need to provide information about those who default on their obligations under judgment debts and the need to keep the burden of maintaining such a register within proper bounds. I do not think there is a figure which can be claimed as absolutely right; it is a matter of judgment.
I am informed that analysis of the judgment debts now entered on the register shows they are divided as follows: 26 per cent. are for sums between £10 and £30; 17 per cent. are for sums between 1203 £30 and £50, and 57 per cent. are for sums over £50. If, therefore, your Lordships approve the figure of £30 suggested in the Government Amendment, 26 per cent. of the judgment debts registerable at today's value would be removed from the register, as opposed to 43 per cent. which would have been taken out by my figure of £50.
I venture to think that what I have proposed in Amendment No. 7 represents a fair and reasonable compromise. Frankly, if we leave the figure of £10 as it stands, I do not think that further discussions will be conclusive. We have had many over the years. If we accepted the noble Lord's Amendment, I fear that all that would happen would be that shortly I would be bringing before your Lordships a regulation raising the figure, and the debate would be renewed. I am concerned, as all Government Departments are or ought to be, to reduce the amount of staff and administrative work which falls upon Government Departments more and more heavily as the burdens of Departmental responsibility seem to increase. This would be a modest proposal aimed at making some contribution in that direction. I hope, accordingly, that the noble and learned Viscount will be disposed to accept the compromise as a fair solution to the problem that he has raised.
§ 4.29 p.m.
§ Lord AIREDALE
My Lords, I can see merit in allowing the credit industry to have the limit as low as they would like, provided they are prepared to pay the cost of keeping it at that low limit, and the whole of the cost of keeping it between that low limit and the limit which would be applied if the credit industry were not contributing towards the cost of keeping the register.
§ The LORD CHANCELLOR
My Lords, may I make one comment in regard to that? I do not think I can fairly claim that my objection to what is proposed is based upon the costs aspect, because the charges can be increased to cover the costs. The problem that concerns me departmentally is that it does nevertheless mean administrative work in every county court; more staff have to be employed. That is the difficulty.
§ Lord HALE
My Lords, I know there has been a lot of legislation, since the Payne Committee sat, which has complicated or altered the situation. At that time we were faced with a position in which the credit industry—and I do not for a moment deny that there are highly respectable firms in the credit industry—largely consisted of people who, by brutal threats and by intimidation and so on, having bought up old debts at four shillings in the pound, constituted a very considerable part of the plaintiffs in the small debt court.
I do not know whether or not I am reactionary in this; I know I am very lonely. I never could see why we should have judges and courts to collect small debts, or indeed why it was the business of the community to regulate these simple little transactions between individuals. I never could see why giving widespread credit was to the human benefit. I never believed in the economists—who now do not believe in it themselves—who said that credit was part of the development of a stable economy. I always thought passionately that if there is one example of one law for the rich and one law for the poor—that is not a phrase which I particularly like; it works one way in one case and another way in another case—it was the fact that in my day, so long as a man had sense enough to run up debts of over £50 and could borrow £5, he could go bankrupt and be relieved of all his anxiety. I know very little about the law, and I confess it. However, I was in an official receiver's office in 1917 and I learned the ropes of bankruptcy law as it then existed.
I have a very—I was about to say "elaborate" but that word could perhaps be discourteous—well-prepared manuscript from Burton the tailors, to whom I used to go as a customer when my expectation of life justified the continued buying of clothes. It is a very good document and is extremely well prepared. To my horror it quotes some passages from the Payne Committee Report in support of their views. I congratulate them on its preparation and they are entitled to have it treated with respect. However, unfortunately I disagree with it. I cannot go much further in that direction.
What is the position today? Today Burton the tailors may refuse to supply 1205 a pair of trousers on the strength that a man still has a judgment on his coat. We read in this morning's issue of The Times about the noble Prince who went to Harrods and bought two mink coats at £2,000 each, one for himself because he feels the cold, and the other for his lady because she is the sort of person who looks extremely well in a mink coat—and I do not doubt it—and promptly went bankrupt. That is the situation. If we have the misfortune to run into debt, we should run into debt for a large sum. Fifty years ago my lecturer told me, on the strength of the case Rex v. Beard, that he did not advise me to get drunk but that if I was going to use that case as a criminal defence, I should get dead drunk.
Much as I dislike disagreeing with my noble and learned friend on the Woolsack, I regret that he has yielded to—I shall not use the word" clamour"—debating pressure in this House and has altered the figure from £50 to £30. I do not propose to dwell upon it, but I do not believe that it is a particularly necessary service of a Government to help a credit industry. We should consider the merits of the matter without helping the collectors.
Viscount COLVILLE of CULROSS
My Lords, I hope that the noble Lord, Lord Hale, will forgive me if I do not follow his argument into some of the wider aspects of this matter. After all, it is one of the glories of your Lordships' House that sooner or later we always receive good advice on almost everything. We are grateful to the noble Lord for some of his remarks.
I very much agree with the noble Lord, Lord Airedale, on this. It is my hope that some method will be found whereby not only the subject matter that is at present the source of the payments that are charged for the entries in the register, if they are given to someone else, but also some proportion of the costs of the administration staff should be looked at to see whether they can be passed on.
I entirely understand what the noble and learned Lord says about compromise. I, too, seek a compromise. However, what I am afraid of is this—and perhaps it is that I am not in a position accurately to judge the threat. I remember when I was at the Home Office the business about 1206 privacy. The Consumer Credit Act now provides that one can go and look at any register which has an adverse comment against one and can put it right. That was what we discussed the other day. However, I am told that if the official register—the one that is prepared under the auspices of the noble and learned Lord—is not considered to be sufficiently full for the day-to-day purposes of those who require credit references, they will have to revert to some other means. The important thing about the official register is that its accuracy is proverbial and a mistake has hardly ever been discovered, except the one that Esther Rantzen found on the television. However, apart from that no one has ever found a mistake. The other methods of compiling information of this sort are nothing like so reliable. They require a good deal of chasing around and tittle-tattle in the pub, the corner shops and the homes of neighbours. All sorts of malice and mistakes creep in and inaccuracies can be found.
Of course, everyone whose name appears in one of the registers compiled in that way will also have the opportunity to put the matter right under the Consumer Credit Act. However, if one can avoid it, one does not wish to have masses of inaccurate registers being compiled, as I believe used to be the case before the credit agencies turned to the Government's own central figures. It is from that point of view I want go get it right. I appreciate that it is a matter which also troubles the mind of the noble and learned Lord.
I believe that there is still room for a little further discussion on the matter. There is no necessity for him to say anything further at this stage, but I hope that he will not close the door to a little further discussion with those who have put this case so strongly to me. I see that he is nodding his head very slightly but perhaps sufficiently to be reported in the Official Report. If he would do that, I feel that we may have achieved as much as we shall achieve in this House in view of the rather short time-scale that we have had on the matter. I hope that the matter need not be considered closed. I shall not look his £30 gift horse in the mouth this afternoon. I beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.1207
§ 4.38 p.m.
Viscount COLVILLE of CULROSS moved Amendment No. 7:
Page 11, line 5, leave out ("£50") and insert ("£30").
§ On Question, Amendment agreed to.
§ In the Title:
Viscount COLVILLE of CULROSS moved Amendment No. 8:
Line 4, after second ("to") insert "oaths and affirmations and to").
§ The noble Viscount said: My Lords, this Amendment is consequential. I beg to move.
§ On Question, Amendment agreed to.