HL Deb 02 February 1978 vol 388 cc886-914

Committee stage resumed.

Clause 29 [Co-ordination of exercise of jurisdiction in relation to persons under disability]:

On Question, Whether Clause 29 shall stand part of the Bill?

4.38 p.m.

Lord BELSTEAD

Perhaps this point can reasonably be said to come under Clause 29, and it might be for the convenience of the Committee if I raised it because it is connected with the two previous points I made about mental patients. The officers detailed in Schedule 3 includes two statutory officers whose work is connected with jurisdiction with respect to persons under a disability; in this case, mental patients. The two statutory officers I am concerned with in Schedule 3 are the Master (Care and Protection) and the Registrar (Care and Protection).

As I understand Part 8 of the MacDermott Report on the Supreme Court in Northern Ireland, at the moment the Chief Clerk, in addition to being responsible for Chancery Chambers, is the Registrar in Lunacy, and the Deputy Chief Clerk is his Assistant Registrar. In this capacity the Chief Clerk and his assistant deal with the business of the Northern Ireland Department for the Affairs of Patients, which I mentioned previously in my remarks. I do not know what the volume of the work in the Department amounts to. In England and Wales the Court of Protection is dealing, I understand, with about 20,000 patients at any one time and has an establishment of about 165 people. The weight of work and the establishment needed are presumably less in Northern Ireland.

What I want to ask first is whether it is really necessary to create two new appointments in Northern Ireland under Schedule 3, of persons to be responsible for the Department for the Affairs of Patients, when this work has hitherto been done, so I understand, by the Chief Clerk and his Assistant Registrar as part of their other duties. Further, is it necessary to describe these new posts in the archaic language of the 1871 Act? Here I am returning to the point I made previously, but it is an important one when describing statutory officers who are undertaking the sensitive work of dealing with the affairs of patients and their relatives. Perhaps I should have raised this point under Clause 28. However, I think it is for the convenience of the Committee that I get through the points I wish to raise, of which these are the last on the question of mental patients.

The MINISTER of STATE, NORTHERN IRELAND OFFICE (Lord Melchett)

It might be helpful if I told the noble Lord, Lord Belstead, that the Department of Health and Social Services, with which, as he knows, I am concerned in Northern Ireland, was consulted fully in the drafting of the Bill. None of the points he has put today has been put to the Department by any of the interests concerned in Northern Ireland, though naturally I appreciate that these matters may have come to their attention rather later in the day. Nevertheless, I have not heard any concern expressed on these various points.

My noble and learned friend has explained the decision which has been taken about looking at the law as laid down in the 1871 Act. While that Act is in use it is necessary to refer to the terminology used in it. It will not be until that is reviewed and new legislation is introduced that these terms will be able to be dropped. However, if I undertake to look at the various points which the noble Lord has made, in particular in regard to the mentally handicapped, and the provisions in this Bill, and to write to him before the next stage, perhaps that will set his mind at rest.

Lord BELSTEAD

I shall be most grateful.

Clause 29 agreed to.

Clauses 30 to 34 agreed to.

Clause 35 [Appeals to Court of Appeal]:

The LORD CHANCELLOR moved Amendment No. 6: Page 19, line 5, after ("interlocutory") insert ("order or").

The noble and learned Lord said: This is a drafting Amendment to bring the provisions of Clause 35(2)(g) into line with the remaining provisions of the clause and is designed to avoid doubt as to whether the provisions of subsection (2)(g) extend to interlocutory orders as well as to interlocutory judgments.

On Question, Amendment agreed to.

Clause 35, as amended, agreed to.

Clause 36 [Composition of Court of Appeal]:

4.43 p.m.

Lord BELSTEAD moved Amendment No. 7: Page 20, line 21, at end insert ("with the consent of both parties to the appeal, reference or matter").

The noble Lord said: The effect of this Amendment is to require the consent of both parties to an appeal if the Lord Chief Justice is to direct that the hearing is to be held before two, and not three, judges. I understand that provision for an appeal to be heard by two judges is a repetition of existing legislation and I am advised that it is only fair to admit that, when counsel for the parties ask for a three-judge hearing, the Northern Ireland Appeal Court invariably agrees to that. Nevertheless, it is with the wording of the Bill that the Committee must be concerned and one need only look at the next provision—subsection (3)—to find that if, in a two-judge hearing, there is a difference of opinion, the hearing must be re-heard. There must be occasions—perhaps in some commercial cases or when one of the litigants is an elderly person—when the parties can ill afford this possibility. For these reasons, I beg to move.

The Lord CHANCELLOR

In a final appeal in Northern Ireland, three judges sit on every possible occasion in order to obviate the danger of a two-judge appellate tribunal being in disagreement. But it is not always practicable to obviate that danger and, in the interests of the expeditious despatch of business, it is thought valuable for the Lord Chief Justice, having read the papers in the given case, to use his discretion to direct that the appeal be heard by only two judges. In practice, where difficult questions of law are likely to arise, he invariably directs that the appeal must be heard by three judges. The system has worked fairly and effectively in Northern Ireland since 1921; in the last 30 years, there have been only two cases in which a Court of Appeal comprised of two judges has failed to reach agreement. That is not a bad record over 30 years. In one of those cases, the court, realising before the conclusion of the argument that it was going to be divided was immediately reconstituted as a court of three judges. Accordingly, I think the danger of extra cost and inconvenience to the parties, against which the Amendment is designed to safeguard, is very slight indeed, and, in my submission, it is outweighed by the facility for the quicker despatch of business which the clause as it stands provides.

Lord BELSTEAD

I am grateful for the guidance which the noble and learned Lord has given me. I had rather hoped that, even if my Amendment was not acceptable, the Lord Chief Justice should have to have regard to the wishes of the parties, but I must accept, as it were, the guidance I have been given by the noble and learned Lord that that is precisely what the Lord Chief Justice mould do. Indeed, so wonderful are the ways of the law that, apparently, according to the noble and learned Lord, a court where it appeared that there was not going to be agreement was reconstituted during the proceedings. As a layman, I did not understand that that could be done. I feel much comforted and I am glad that I moved the Amendment, which I ask leave to withdraw.

Amendment, by leave, withdrawn.

Clause 36 agreed to.

Clauses 37 to 45 agreed to.

Clause 46 [Exclusive jurisdiction in trial on indictment]:

4.48 p.m.

On Question, Whether Clause 46 shall stand part of the Bill?

Lord BELSTEAD

I have a point to raise on this clause and I apologise if the answer should be perfectly obvious to me, This is the first of the clauses under Part IV of the Bill which for the first time, establishes Crown Courts in Northern Ireland, and I simply wish to ask whether the Crown Courts in Northern Ireland will be hearing the scheduled offences. The Diplock courts, which so well I remember being set up, have done remarkable work; it is remarkable that there has been no breath of criticism from any quarter of the working of those courts, except perhaps from a few people whose only work is subversion. If my memory serves me right, when the noble and learned Lord, Lord Gardiner, produced his valuable and important report about two years ago, it was again recorded in that report that the Diplock courts had worked exceedingly well. What I am now seeking to ask the noble and learned Lord in respect of those courts—which I have always thought of as being rather special courts because they were specifically set up to be single-judge courts and to try scheduled offences (the special terrorist offences set out in the relevant Schedule to the Emergency Provisions Act)—is whether those scheduled offences are to be tried before Crown Courts.

The LORD CHANCELLOR

Undoubtedly the Crown Court will have jurisdiction to try scheduled offences, but it will do so, of course, without juries, as is the procedure for dealing with scheduled offences. That jurisdiction will remain, and the procedures will remain. In fact, the jurisdiction has been exercised both by High Court judges and by other judges until now; and, as I have said, the Crown Court as now constituted will have that jurisdiction.

Lord BELSTEAD

I am grateful to the noble and learned Lord for that information.

Clause 46 agreed to.

[Amendments Nos. 8 and 9 not moved.]

Clause 47 agreed to.

Clause 48 [Committal for trial on indictment]:

The LORD CHANCELLOR moved Amendment No. 10: Page 30, line 20, leave out ("prescribed") and insert ("specified").

The noble and learned Lord said: This is a drafting Amendment bringing paragraph (b) into line with the remainder of Clause 48 (5), in which references are to the "specified" period rather than the "prescribed" period. I beg to move.

On Question, Amendment agreed to.

Clause 48, as amended, agreed to.

Clauses 49 to 52 agreed to.

[Amendment No. 11 not moved.]

Clause 53 agreed to.

[Amendment No. 12 not moved.]

Clause 54 agreed to.

Clause 55 agreed to.

Clause 56 [Control and publication of rules]:

4.54 p.m.

Lord BELSTEAD moved Amendment No. 13: Page 37, line 29, leave out ("an") and insert ("a significant").

The noble Lord said: I understand that the Rules Committee is confined in its rule-making powers by the need to obtain Treasury approval if a new rule involves an increase of any sort at all in public expenditure. The effect of this Amendment is to relax the stipulation to the extent that Treasury permission will be needed only if a rule would involve "a significant" increase in public expenditure. In moving this Amendment I must admit to your Lordships that I believe the Supreme Court of Judicature (Consolidation) Act 1925—that is, for England and Wales—is drafted in very much the same way as this Bill. On the other hand, it is interesting that the word "significant" has recently begun to creep into Bills which have passed through Parliament.

A Bill which had its Third Reading in your Lordships' House today, the Medical Bill, has in its Explanatory Memorandum reference to a "significant" increase in expenditure by the General Medical Council; again, there is a reference which I found, admittedly in an Explanatory Memorandum, to a "significant" effect on public service manpower in the State Immunity Bill; and a Bill which we are going to be taking on Tuesday, the Suppression of Terrorism Bill, refers to "substantial prejudice". I hope that the noble and learned Lord will not "shoot me down" on the ground that the word "significant" is difficult to define. If, on the other hand, the noble and learned Lord tells me that it is not in line with the 1925 Act, then I am afraid there will be nothing I am able to say. I beg to move.

The LORD CHANCELLOR

Clause 56 as it is now drafted requires the concurrence of the Treasury in the making of any Rules of the Supreme Court of Northern Ireland which will involve an increase in expenditure out of public funds. It is a standard provision in all statutory rule-making powers, and its purpose is fairly obvious, I think. In these times the importance of Treasury control over all increases in public expenditure, however slight they may be, is important, particularly where, as in this instance, no member of the rule-making authority is a member of the Government or answerable to Parliament.

Furthermore, the noble Lord's Amendment would, I think, introduce an uncertainty as to what degree of increase in public expenditure would amount to a "significant" increase. Those wanting a great deal more would no doubt regard it, however great it was, as wholly insignificant; but those who have to find the money from the taxpayer might not be ready and willing to take the same view. That is the reason why the word "significant" is not included in the Bill; although I take note of the fact that a certain amount of laxity seems to be creeping into the Statute Book by the excessive use of words of uncertain meaning and limitation.

Lord BELSTEAD

I am grateful to the noble and learned Lord for his reply. There is, I think, a serious point here, and it is a familiar one, or should be a familiar one, to those of us who live on this side of the water but are venturing to legislate, as we have to, for Northern Ireland. It is this. I am advised that on one occasion a rule could not be made for really quite a long time because it was said to involve an increase in expenditure out of the Legal Aid Fund, although it was not likely to exceed £50, so it really was a very small amount.

What I should have liked to ask, through the Government, is whether it would perhaps be possible for the Treasury, which, after all, is sitting in London, to have some working arrangement with the Rules Committee, which, after all, is sitting in Belfast. I am sure this is something which would be appreciated on the other side of the water, so that unconscionable delays should not occur. With that, I will of course withdraw the Amendment.

The LORD CHANCELLOR

I am advised that, provided the Treasury is consulted in good time, there ought to be no grounds for anxiety from the point of view of delay.

Lord BELSTEAD

I am grateful to the noble and learned Lord. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

4.58 p.m.

Lord BELSTEAD moved Amendment No. 14: Page 37, line 43, at end insert— ("(4) It shall he the duty of the Secretary to the Rules Committee to make due arrangements with Her Majesty's Stationery Office for the reprinting and sale of Statutory rules and other instruments to which the provisions of the Statutory Rules Act (Northern Ireland) 1958 apply; such arrangements shall to made at intervals not exceeding 5 years in duration").

The noble Lord said: Clause 56 provides for the control and publication of rules which are provided by the Statutory Rules Act (Northern Ireland) 1958. I understand that the rules of the Supreme Court were last published in 1936, and have been out of print for some time. This does not appear to be a very satisfactory situation, the more so as the 1958 Act regulations—that is, those made under Section 4 of the 1958 Act—exempt from any provision of that Act any rule or class of rules, provided adequate arrangements exist for bringing, so far as is reasonably practicable, the exemption to the notice of persons affected thereby, and for supplying copies thereof to anyone who wants a copy of the exemption. From a reading of the principal Act, it would appear desirable for the Supreme Court rules to be reprinted and put on sale at reasonably regular intervals, and the effect of this Amendment is to provide for this at intervals of not more than five years. I beg to move.

The LORD CHANCELLOR

I am aware that the current edition of the Rules of the Supreme Court is over 40 years old, as the noble Lord said, and that it has been out of print for many years. I have no doubt that this has caused a good deal of inconvenience both to the courts and to the practitioners. That is the bad news. However, I have some good news. It is that a complete revision of the rules of the Supreme Court is currently in hand and, I hope, will be available before the end of this year. That will result in the new edition of the rules being much closer to the corresponding rules in England and Wales. In accordance with modern practice in these matters, which is immensely beneficial, the new edition will be made available in loose-leaf form so as to enable the rules to be updated more easily and more conveniently. That new system will also obviate the necessity for entirely fresh editions to be regularly reissued—or, rarely reissued, as was the case in the past. In view of what I have said, I hope that the noble Lord may think his Amendment is not necessary.

Lord BELSTEAD

My apprehension is that the noble and learned Lord has met my point completely. If I remember aright the 1958 Act from my reading and slight understanding of it, if exemptions or alterations to the rules are made, the responsible officer must notify these; and, from what the noble and learned Lord has said, these alterations could be slipped into the practitioner's loose-leaf file in the same way as some politicians, during the course of complicated Bills find themselves slipping pieces of paper backwards and forwards into their supporting documents. I beg to leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 56 agreed to.

Clauses 57 to 59 agreed to.

Clause 60 [Taxation of costs.]:

5.2 p.m.

Lord BELSTEAD moved Amendment No. 15: Page 39, line 4, at end insert ("which shall provide for appeals to be made.")

The noble Lord said: I beg to move Amendment No. 15. The power to tax costs rests now with the court concerned and that power is delegated to the Master (Taxing Office) from whom there is a right of appeal. Clause 60 (1) allocates the jurisdiction of the High Court, the Court of Appeal and the Crown Court for taxation of costs to the Master (Taxing Office); but if there is no intention to remove the right of appeal I should have thought it was desirable, indeed necessary, to add words clarifying this; and this is the effect of the Amendment. If the Government were to accept this Amendment, it strikes me that it might be necessary to amend also Clause 55 (1)(a)(v) so that the Rules about the taxation of costs shall be in accordance with Clause 60. That, of course, will depend upon the response of the noble and learned Lord to this Amendment.

The LORD CHANCELLOR

The Bill already provides in Clause 55(2)(e) for rules of court to be made: …providing for the review of any jurisdiction exercised by such officers …". This will enable the Rules to provide for the review of decisions of the Master (Taxing Office); and such rules will so provide.

Lord BELSTEAD

I am grateful to the noble and learned Lord for his reply. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 60 agreed to.

Clause 61 agreed to.

Clause 62 [Trial with and without jury.]:

On Question, whether Clause 62 shall stand part of the Bill?

Viscount BROOKEBOROUGH

The practice in Northern Ireland of trial in front of a jury for civil injuries and such like cases differs from that in the rest of Great Britain. I wonder whether the noble and learned Lord has any figures to show that the damages awarded in these forms of cases of trial in front of jury are greater than in England and Wales. The insurance companies when they put up our premiums assure us that one of the reasons why the premiums are so high—and they are very high—is because it is trial in front of jury instead of trial by judge alone.

The LORD CHANCELLOR

I have no statistical information, but, even if I had, I doubt whether it would be of great value because no one case is like the next. This is part of the problems and difficulties of litigation. I have no information which can throw any helpful light on this and I doubt whether any would be found by however hard-working a statistician.

Viscount BROOKEBOROUGH

If it is right here to have such cases in front of a judge without a jury, what is the justification for having them in front of a jury in Northern Ireland?

The LORD CHANCELLOR

It is simply because that is the preferred system in Northern Ireland. That, I am afraid, is the answer. It is as simple as that.

Clause 62 agreed to.

Clause 63 to 65 agreed to.

Clause 66 [Certain affidavits taken abroad admissible without proof of seal etc.]:

The LORD CHANCELLOR moved Amendment No. 16: Page 41, line 14, after ("England") insert ("and Wales").

The noble and learned Lord said: This remedies a very serious omission in the Bill. I should never again be able to return to the Principality if it were not put right. It leaves out "Wales", by a gross and terrible inadvertence which this Amendment will remedy. I beg to move.

On Question, Amendment agreed to.

Clause 66, as amended, agreed to.

Clause 67 [Subpoenas in other parts of the United Kingdom]:

On Question, Whether Clause 67 shall stand part of the Bill?

Viscount BROOKEBOROUGH

I should like to ask whether subpoenas which will be operated within the United Kingdom also apply to the Isle of Man. I ask this because I find that the Prime Minister in another place said that certain islands are part of the United Kingdom and directly under the Westminster Parliament, while the Isle of Man is not. The Isle of Man is very close to Northern Ireland and there are very close links. I wonder whether that is an omission.

The LORD CHANCELLOR

I am told that, apparently, it does not apply to the Isle of Man. How serious is that omission, I do not know. We shall have to look at the point. I am advised that that is the position. A most interesting matter has been raised.

Clause 67 agreed to.

[Amendments Nos. 17 to 30 not moved].

Clauses 68 to 94 agreed to.

Clause 95 [County courts and county court divisions]:

The LORD CHANCELLOR moved Amendment No. 31: Page 55, line 40, after ("court") insert ("at any place").

The noble and learned Lord said: My Lords, as the Bill stands, this Amendment relates to the functions of the Secretary of State but they will of course be transferred to me in accordance with the undertaking that I have already given. In speaking to it, therefore, I shall refer to the Lord Chancellor as the responsible Minister.

This Amendment will clarify the essential purpose of orders made by the Lord Chancellor pursuant to the new subsection (2)(d) of the County Courts Act (Northern Ireland) 1959 as substituted by Clause 95. Without this Amendment, paragraph (d) would enable the Lord Chancellor to make general provision concerning the nature of the business to be transacted by any county court, while paragraph (a) enables him to specify the places in which the county courts are to be held. Paragraph (d) does not, however, enable the Lord Chancellor to make specific provision for the hearing of certain types of case at particular venues: for example, to provide that appeals arising from a specified petty sessions district shall be heard at a particular venue within the county court division. As it is possible that sittings of the court could be held for limited purposes at certain places within a division, it is desirable to demonstrate in paragraph (d) that the Lord Chancellor's power to make appropriate orders extends to his specifying the business to be transacted at each court venue within a division. I beg to move.

On Question, Amendment agreed to.

Clause 95, as amended, agreed to.

Clause 96 agreed to.

5.13 p.m.

The LORD CHANCELLOR moved Amendment No. 35: After Clause 96, insert the following new clause: Civil jurisdiction exercisable by circuit registrars

" .—(1) section 61 of the County Courts Act (Northern Ireland) 1959 there shall be inserted the following section—

61A.—(1) Subject to subsection (3), any action in which the amount claimed, or the value of specific chattels claimed, does not exceed £300 shall, save as otherwise provided by county court rules, be heard and determined by a circuit registrar in accordance with those rules.

(2) Any order, decision or determination made by a circuit registrar by virtue of subsection (1) shall for all purposes (including the right of appeal) have the like effect as a decree pronounced by a judge and shall be embodied in a decree accordingly.

(3) Where in any action to which subsection (1) applies the amount claimed, or the value of specific chattels claimed, does not exceed £200 the circuit registrar shall, save as otherwise provided by county court rules, deal with the claim by way of arbitration in accordance with those rules.

(4) Save as otherwise provided by county court rules, no costs shall be awarded in connection with an action which, in accordance with subsection (3), is dealt with by way of arbitration.

(5) In its application to an arbitration under subsection (3), the Arbitration Act (Northern Ireland) 1937 shall have effect with such modifications as may be prescribed by county court rules.

(6) References in subsections (1) and (3) to an amount claimed include references to a balance claimed in the circumstances mentioned in section 10(1)(a)(b) and (c).

(7) The power conferred by Article 8(2)(a) of the Administration of Justice (Northern Ireland) Order 1975 on the Secretary of State, after consultation with the Lord Chief Justice, by order to increase the sum specified in any of the statutory provisions set out in column 1 of Schedule 1 to that Order shall include power so to increase the sums specified in subsections (1) and (3).

(2) Her Majesty may by Order in Council—

  1. (a) direct that sections 71(1), (2) and (3), 76(1)(a) and 82(3) of the Magistrates' Courts Act (Northern Ireland) 1964 (which impose financial limits on the jurisdiction of courts of summary jurisdiction in debt and ejectment proceedings) shall have effect with the substitution for the sums for the time being specified in those provisions of such higher sums as may be specified in the Order;
  2. (b) abolish any civil jurisdiction exercisable by courts of summary jurisdiction;
  3. (c) confer on circuit registrars any civil jurisdiction additional to that for the 900 time being exercisable by them under or by virtue of this Act.

(3) An Order in Council under subsection (2) may make such incidental, consequential, transitional or supplementary provisions (including the amendment or repeal of any statutory provision) as appear to Her Majesty to be necessary or proper for giving full effect to the provisions of the Order.

(4) No recommendation shall be made to Her Majesty in Council to make an Order under subsection (2) unless a draft of the Order has been approved by resolution of each House of Parliament."

The noble and learned Lord said: This is an important new Clause. In speaking to Amendment No. 35, I ask leave also to consider Amendments Nos. 50, 57, 64 and 74 which are inter-related. Although this Amendment again refers to the Secretary of State, this will be changed to a reference to the Lord Chancellor later, in accordance with my undertaking. The Committee will remember that during the debate on Second Reading, I indicated that we would be bringing forward Amendments relating to the jurisdiction of circuit registrars and, in particular, to the establishment of a small claims jurisdiction. That jurisdiction has proved most valuable in England and Wales in making the processes of the courts more amenable and litigation to be undertaken without risk of high costs. It is a procedure which has now been used by thousands of litigants of small means up and down the country. I am sure it will also be welcomed in Northern Ireland.

The new clause, which I now move, embodies the amendments to which I have referred, and seeks to provide for the inclusion in the County Courts (Northern Ireland) Act 1959 of a new Section 61A outlining the extent to which the civil jurisdiction of the county court will be exercisable by circuit registrars. Broadly speaking, subsection (1) of the new clause would enable the new circuit registrars to exercise the general civil jurisdiction of the county court in actions founded on contract or tort up to a monetary ceiling of £300. However, that w ill be subject to county court rules which will not only provide the detailed procedure which will apply but also may restrict the types of case or circumstances in which this jurisdiction will be exercisable by circuit registrars. I can say that it will be comparable to the jurisdiction of county court registrars in England and Wales. So rules which can be more easily amended than primary legislation will make the detailed provision for the exercise of circuit registrars' jurisdiction and will state the limitations within which that jurisdiction will operate. That should provide the necessary flexibility for the effective and equitable operation of this new system.

Subsections (3) to (5) of the new Section 61A of the County Courts Act will create a new small claims procedure for cases in which the amount claimed does not exceed £200. These will normally be dealt with by circuit registrars by way of informal arbitration. The details of the arrangements will be filled in by county court rules which will provide, among other things, for such cases to be tried in the ordinary way if both parties object to arbitration, and for cases of particular difficulty to be referred to the judge.

Subsection (7) of the new Section 61A enables the figures for the circuit registrars' jurisdiction and for the small claims jurisdiction to be increased by Orders in Council. Subsection (2) of the new clause introduces for the first time power to alter by order in council the financial limit on certain parts of the jurisdiction of magistrates' courts. It will also enable the civil jurisdiction of magistrates to be abolished by subordinate legislation. I was grateful to the noble Lord, Lord Belstead, for his suggestion at Second Reading that this might be done, and we have taken the opportunity to do so in this new clause. Most of that civil jurisdiction of magistrates' courts is already exercisable by the county courts as well. Power is also conferred in subsection (2) to confer new jurisdiction on the circuit registrars.

Subsection (3) of the new clause enables an Order in Council to make incidental and supplementary provision as necessary; and by subsection (4) such orders will be subject to Affirmative Resolution. The other four Amendments are, with one exception, purely consequential on the introduction of this new clause. I will say a further word about one of them when the time comes. I beg to move.

Lord BELSTEAD

I should like to study what the noble and learned Lord has said. I am sure that members of the Committee on all sides will agree that this is a sensible provision to be included in this legislation. Regarding the remark made about order-making powers—which I raised on Second. Reading—it is not very often that from the Opposition side of the Committee one recommends an order-making power; but where the civil jurisdictions of the circuit registrars and the magistrates' court are concurrent and, as the White Paper itself said, in the light of how the circuit registrars' work develops it may be necessary, in the future, to look again at the powers of the magistrates' courts, it seemed that to have to do this by primary legislation was not very sensible. I am grateful to the Government for acting upon the suggestion that I ventured to make and for including that in subsection (2)(b) of this new clause.

On Question, Amendment agreed to.

Clause 97 agreed to.

5.20 p.m.

The LORD CHANCELLOR moved Amendment No. 36:

After Clause 97, insert the following new clause:

Qualifications of county court judges and deputy judges

".—(1) In section 103(1) of the County Courts Act (Northern Ireland) 1959 for the words from "unless" to the end of the subsection there shall be substituted the words "unless—

  1. (a) he has practised for not less than ten years at the Bar of Northern Ireland; or
  2. (b) he has been a deputy judge for not less than three years."

(2) For section 107 of the County Courts Act (Northern Ireland) 1959 there shall be substituted the following section—

"Deputy judges.

107.—(1) The Lord Chancellor may appoint as deputy judge—

  1. a) a person who has previously held the office of judge;
  2. (b) a person who is qualified to be appointed to the office of a judge;
  3. (c) a resident magistrate;
  4. (d) a solicitor who has practised for not less than ten years as a solicitor in Northern Ireland.

(2) The appointment of a person as a deputy judge shall specify the term for which he is appointed.

(3) Subject to subsection (4), the Lord Chancellor may, with the agreement of the deputy judge, from time to time extend, for such period as he thinks appropriate, the term for which the deputy judge is appointed.

(4) Except where an appointment is made under subsection (l)(a), neither the initial term for which a deputy judge is appointed nor any extension of that term under subsection (3) shall be such as to continue his appointment as a deputy judge after the end of the completed year of service in which he attains the age of seventy-two years.

(5) A deputy judge shall, while he is so acting, have the like authority, jurisdiction, powers and privileges as a judge in all respects.

(6) Where the hearing of any proceedings duly commenced before any deputy judge is adjourned or judgment is reserved therein, that deputy judge shall, notwithstanding anything in subsection (2) or (4), have power to resume the hearing and determine the proceedings or, as the case may be, to deliver the judgment so reserved.

(7) There shall be paid to every deputy judge, except a resident magistrate, such remuneration and allowances as the Lord Chancellor may, with the concurrence of the Minister for the Civil Service, determine."."

(The noble and learned Lord said: It might be convenient to consider with this Amendment Amendment No. 76. This, again, is an Amendment of some significance. The effect of the Amendments is to make solicitors and resident magistrates eligible for appointment as deputy county court judges. That is achieved by a new section, Section 107(1) of the County Courts Act. By virtue of the new provisions which will be inserted in Section 103 of the County Courts Act, persons who have been deputy county court judges for not less than three years will be eligible to be appointed as permanent county court judges. Your Lordships may recall that a similar change was made in regard to England and Wales by the Courts Act 1971. The feeling in your Lordships' House at that time was that it was right that appointments to this level of the Judiciary should become open to the solicitors' branch of the legal profession; and this new clause will make a similar change in Northern Ireland.

The position will not be exactly comparable because there are no recorders in Northern Ireland as we have in England and Wales, but solicitors will be able to obtain judicial experience and will be tested, if I may put it in that way, for their competence in that work by being appointed deputy county court judges before being eligible for a permanent appointment, and indeed, being so for not less than three years.

Another avenue for solicitors to reach the county court bench will be through a change in respect of resident magistrates, for which appointments solicitors are already eligible. By making that change, the new clause will benefit all resident magistrates, whether they were barristers or solicitors before being appointed, by enabling them to be appointed as deputy county court judges and then, after three years, making them eligible for appointment to the county court bench.

I should mention in this connection a small Amendment I shall be moving later, which will increase from six to seven years the length of time for which a solicitor or barrister must have practised before becoming eligible for appointment as a resident magistrate. That minor change is designed merely to bring the position in Northern Ireland into line with that of stipendiary magistrates in England and Wales. I may add that this Amendment is in addition to the provision in Clause 105 of the Bill, which introduces, for the first time in respect of Northern Ireland, a provision comparable to that which has existed in England and Wales since 1961, enabling a practising barrister who has been a solicitor or a solicitor who has been a barrister to count his time in the other branch of the profession towards any qualifying period which may be laid down, by Statute or otherwise, for eligibility for appointment to office or for any other purpose.

I hope that all these provisions will widen the field of choice for judicial appointments and will help to maintain the high quality of the Judiciary in Northern Ireland. I may say that I have myself found, as Lord Chancellor, that the changes which have been made in England and Wales have enabled me to appoint as circuit judges several former solicitors who have proved highly competent to perform the work of the Crown Court.

Subsections (2) and (3) require the period of appointment of a deputy judge to be specified and enable that period to be extended. The remaining provisions of the new Section 107 of the County Courts Act simply restate the existing provisions relating to deputy county court judges, with necessary consequential Amendments. I beg to move.

Viscount BROOKEBOROUGH

I should like to welcome this new clause. I accept that it is going to be only permissive and is not going to require the Lord Chancellor to appoint anybody in fact, but it seems to me that from the resident magistrate's point of view we shall have a career structure which will no doubt encourage people of quality to go through with that. I do not quite see how a deputy judge, who is a resident magistrate and is appointed a deputy judge, will gain the same experience that a recorder gains in this country, because I understand that a recorder sits for a particular period each month, whereas in Northern Ireland it is likely that a deputy judge might be appointed only for a day. Perhaps it does not work quite like that, in which case I am sure the noble and learned Lord will tell me. But I wonder whether, in the way I see it working at the moment, our deputy judges will gain equivalent experience before they arrive at the point where they can be appointed as a proper county court judge.

The LORD CHANCELLOR

I apprehend that the experience which a deputy county court judge will have, during the course of the three years when he will have to have been so appointed, will provide the necessary experience for him and, if I may say so, the necessary opportunities for his capacity and qualities to be decided. We anticipate that the frequency of his employment will certainly be no less than that which is the experience of recorders and that, on the strength of that experience, it will be possible for the Lord Chief Justice and others who will be advising me to form a view of the suitability of the applicant for appointment as a county court judge proper.

Lord BELSTEAD

It is very valuable to be able to ask these questions in this way of the noble and learned Lord, because of course we are questioning the Minister who will be responsible for making the appointments to the Judiciary. I should like to pursue what my noble friend Lord Brookeborough was putting to the noble and learned Lord, and I do so in nohostilesensetowards the members of the profession of solicitor. Like many other citizens, I benefit very much from their advice and so am in no way imbued with any hostility towards them. However, I must say that, when listening to the noble and learned Lord, I wondered whether, if you fulfil the office of recorder in this country and presumably have a court list of your own which is made up some time beforehand, and are given advice as to when you are going to sit and in fact you sit for a guaranteed minimum period of time, that really is the same sort of apprenticeship, if I may use that term, as being a deputy judge in Northern Ireland. There, as I understand it, although they do extremely valuable work, they sit very much on an ad hoc and sudden basis and presumably, if suddenly asked to sit, will probably take the less difficult rather than the more difficult cases.

I ventured to ask the noble and learned Lord a question about the Crown Courts when we got to Clause 46. I did so because I had an eye to this Amendment we are now dealing with. Here it seems that the boot is on the other foot and one is dealing in. Clause 46 with very serious cases. The noble and learned Lord was good enough to tell me that the Crown Courts will be able to hear scheduled offences, and I should be interested to hear from him whether deputy judges will sit as Crown Court judges—as indeed, so far as I know, they can do, because this new clause provides in subsection (5) that: A deputy judge shall, while he is so acting, have the like authority, jurisdiction, powers and privileges as a judge in all respects". I should have thought that perhaps it was not so appropriate that a deputy judge should have the onus of sitting in a Crown Court and I wonder, if that is the case, whether it ought not to be spelled out in the new clause. Further, I wonder whether the noble and learned Lord would think it appropriate that judges appointed by this method should sit in the Crown Court. I am simply asking for the noble and learned Lord's view.

While I am on my feet may I ask a couple of questions about resident magistrates? Without going into detail, I speak with admiration of what resident magistrates have done, very often under great danger, in past years, and so with no hostility at all. But, again, I wondered on reading the new clause whether the office of stipendiary in this country is a stepping stone to a judgeship. I was not aware that this was so. I wondered, as I read the Bill, whether it is really appropriate, now that the whole appellate jurisdiction from magistrates' courts will continue to rest with the county courts, that resident magistrates should be singled out in this new clause for special mention to be deputy judges and to hear appeals from the petty sessional courts—in other words, appeals from themselves and from their brethren—in their capacity as deputy judges.

I should be interested to hear whether the noble and learned Lord thinks that really it is so appropriate that resident magistrates should be specially picked out in that way, particularly as a resident magistrate must, under the Bill, have served a seven years' apprenticeship as either a solicitor or a barrister, and a solicititor who has practised for not less than 10 years will be eligible under this clause to be a deputy judge. This makes me further mystified as to why, in particular, resident magistrates have been picked out for inclusion in the four who may be appointed as deputy judges under this new clause.

The Lord CHANCELLOR

The position of the deputy judge will be that, while there will not be a minimum sitting requirement, as is the case with recorders, a record will be kept of how much and how long each deputy judge will sit, and therefore how much experience he will get. It will be on the basis of that accumulated information that a decision will be made as to whether he has qualified by experience and, as I have said, by the performance of his work, to be made a full-time judge. Of course, a recorder in England does not have to sit continuously for his period of duty. He can sit for shorter intervals, provided that he attains the necessary minimum total, which I believe is 28 days in the course of a year. I think that in practice these points can be worked out, so that the amount of experience and the opportunity for testing performance will be parallel or similar to what takes place in England, in regard to recorders.

Of course, deputy judges will not, in practice, be required to sit in the Crown Court when dealing with the Diplock scheduled cases. Obviously, you would entrust those cases only to the more experienced and, certainly, to none other than permanent full-time judges, and it is not conceivable that a deputy judge would deal with that class of case. I do not think that we need have any anxiety about that. These matters would be supervised by the Chief Justice and the circuit administrator, and I am quite sure that they will work out satisfactorily in practice.

Of course, barrister stipendiaries in England can become circuit judges and, indeed, some have been so appointed. Solicitor stipendiaries can become recorders and then judges, also, in this country. I am very glad that tribute has been paid to the resident magistrates today and I should like to pay tribute myself. They have faced danger with courage, and done their work in a way which has caused admiration both in Northern Ireland and here.

Lord BELSTEAD

I am grateful to the noble and learned Lord for what he has said. As I was saying, it is valuable for us to be able to question the noble and learned Lord face to face, because it is he who will be responsible under this clause, and we are therefore in a fortunate position as opposed to another place. I think, also, that it was right to have asked the noble and learned Lord one or two questions. This is, after all, the first time that this Bill has been gone through in Committee, and this new clause may come under scrutiny again if not in your Lordships' House, in another place. If and when that happens, it will be important that the views of the noble and learned Lord are on the record for people to read. I have no other questions to ask on the new clause which I hope we may now agree to.

On Question, Amendment agreed to.

Clause 98 agreed to.

[Amendments Nos. 37 to 39 not moved.]

Clause 99 agreed to.

Clause 100 [Supplementary]:

5.35 p.m.

The LORD CHANCELLOR moved Amendment No. 40: Page 57, line 29, leave out ("96 and 97") and insert ("to (Qualifications of county court judges and deputy judges)").

The noble and learned Lord said: This is purely a drafting Amendment and is consequential on the inclusion in the Bill of two new clauses to which the Committee has agreed. I beg to move.

On Question, Amendment agreed to.

Clause 100, as amended, agreed to.

[Amendments Nos. 41 and 42 not moved.]

Clause 101 agreed to.

[Amendments Nos. 43 to 45 not moved.]

Clause 102 agreed to.

Clauses 103 to 105 agreed to.

Clause 106 [Election courts]:

The LORD CHANCELLOR moved Amendment No. 46: Page 61, line 18, leave out ("election petitions") and insert ("parliamentary election petitions for the purposes of section 110 of the Representation of the People Act 1949 and section 72(2) of the Electoral Law Act (Northern Ireland) 1962").

The noble and learned Lord said: With this Amendment, it may be convenient to discuss also Amendments Nos. 47, 53, 54, 65, 73 and 75. These Amendments all deal with the same point. They are designed to correct some minor drafting defects which have come to light with respect to the esoteric subject of election courts. They will ensure that the provisions of Clause 106, which relate to the composition of election courts, are linked to the appropriate statutory provisions of existing electoral law. A further inconsistency, which this group of Amendments seeks to put right, is the reference in the Representation of the People Act 1949, as it applies to Northern Ireland, and in the Electoral Law Act (Northern Ireland) 1962, to the actual composition of an election court. I beg to move.

On Question, Amendment agreed to.

The LORD CHANCELLOR moved Amendment No. 47: Line 24, leave out subsection (3).

The noble and learned Lord said: This Amendment is consequential on the last one. I beg to move.

On Question, Amendment agreed to.

Clause 106, as amended, agreed to.

Clauses 107 to 113 agreed to.

[Amendments Nos. 48 and 49 not moved.]

Clause 114 agreed to.

Clause 115 agreed to.

Clause 116 [Making and control of subordinate legislation]:

The LORD CHANCELLOR moved Amendment No. 50: Page 67, line 12, leave out ("or (2(6)") and insert (" , 62(6) or (Civil jurisdiction exercisable by circuit registrars) (2) ").

The noble and learned Lord said: Amendment No. 50 has already been spoken to in relation to Amendment No. 35. Formally I beg to move.

On Question, Amendment agreed to.

Clause 116, as amended, agreed to.

Clauses 117 to 120 agreed to.

Schedules 1 to 4 agreed to.

Schedule 5 [Minor and consequential amendments]:

[Amendments Nos. 51 and 52 not moved.]

The LORD CHANCELLOR moved Amendment No. 53: Page 91, line 16, after ("Court") insert ("or the Court of Appeal").

The noble and learned Lord said: This Amendment was spoken to when I moved Amendment No. 46. Formally I beg to move.

On Question, Amendment agreed to.

The LORD CHANCELLOR moved Amendment No. 54: Page 91, line 17, at end insert— ("In section 110(1) for the words from "two judges" to "their seniority" substitute the words "the two judges of the High Court or the Court of Appeal for the time being selected under section 106 of the Judicature (Northern Ireland) Act 1978".")

The noble and learned Lard said: Similarly, this Amendment was spoken to when I moved Amendment No. 46. I beg to move.

On Question, Amendment agreed to.

The LORD CHANCELLOR moved Amendment No. 55: Page 92, line 5, at end insert—

("The Administration of Justice Act 1960

In paragraph 2 of Schedule 2 for the word "accordingly" substitute the words "as references to a court of the High Court of Justice in Northern Ireland consisting of two or more judges".").

The noble and learned Lord said: The paragraph to which this Amendment refers is part of a group of provisions which modify the Administration of Justice Act 1960 in its application to Northern Ireland. Paragraph 2 includes a reference to a Divisional Court of the Queen's Bench Division. Although such courts will continue with unchanged composition in Northern Ireland, they will no longer be known by the title "Divisional Court". Therefore this change in the wording of that paragraph is necessary to explain what it will be referring to in future. I beg to move.

On Question, Amendment agreed to.

5.44 p.m.

The LORD CHANCELLOR moved Amendment No. 56: Page 99, line 8, at end insert— ("In section 36 for the words from "tried" to the end substitute the words "at some other place in the same division or in any other division, he may order those proceedings to be transferred to a court sitting at such other place, and they shall be heard and determined by that court accordingly ".").

The noble and learned Lord said: This Amendment is made necessary by the fact that under the provisions of Clause 95 of the Bill, Northern Ireland will be divided into new county court divisions and there will probably be fewer of them than at present. Section 36 of the County Courts Act as it stands enables a judge to transfer a case to another county court in another division if he considers that it would be more fair or more convenient to do so, but it does not enable him to transfer a case to another place within the same division. Unlike the present divisions, however, the new divisions will all have more than one place at which the court is held and it is clearly necessary, therefore, for the judge to have power to order the transfer of a case to another place within the same division while retaining the power to transfer a case to another division. This, it is hoped, will cater for the situation where a transfer within the same division will be more convenient for the parties and witnesses or will lead to a more speedy trial. I beg to move.

On Question, Amendment agreed to.

The LORD CHANCELLOR moved Amendment No. 57: Line 20, at end insert— ("In section 71(3) at the end add the words "or by a circuit registrar".").

The noble and learned Lord said: When speaking to Amendment No. 35 which conferred jurisdiction on circuit registrars and upon which this Amendment is consequential, I indicated that there would be some points which I should like to make in connection with this Amendment. By adding the words "or by a circuit registrar" to Section 71(3) of the County Courts Act (Northern Ireland) 1959, this Amendment will provide that a circuit registrar may exercise the jurisdiction and powers of a county court to the extent authorised by any enactment or by county court rules. This will enable rules to provide for the delegation by county court judges of any of their jurisdiction and powers to circuit registrars, as they do at present in respect of clerks of the Crown and peace and county court registrars. Such delegated jurisdiction will be in addition to the statutory jurisdiction of circuit registrars under the new clause. I bee to move.

On Question, Amendment agreed to.

[Amendments Nos. 58 to 62 not moved.]

The LORD CHANCELLOR moved Amendment No. 63: Page 100, line 24, at end insert— (" (c) in subsection (4) for the words "and (2)" substitute the words "and (1A)".").

The noble and learned Lord said: This is purely a drafting, consequential Amendment. I beg to move.

On Question, Amendment agreed to.

The LORD CHANCELLOR moved Amendment No. 64: Page 100, line 28, at end insert— ("In section 147(b) at the end of sub-paragraph (ii) add the words "or by a circuit registrar".").

The noble and learned Lord said: This Amendment has already been dealt with in connection with Amendment No. 35. I beg to move.

On Question, Amendment agreed to.

The LORD CHANCELLOR moved Amendment No. 65: Page 102, line 4, at end inserts— For section 72(2) substitute— (2) An election court for the trial of petitions relating to parliamentary elections (in this Act referred to as a "parliamentary election court") shall consist of the two judges of the High Court or the Court of Appeal for the time being selected under section 106 of the Judicature (Northern Ireland) Act 1978. In section 83(2), (3) and (4) for the words "Supreme Court" substitute the words "Court of Appeal".

The noble and learned Lord said: This Amendment was spoken to with Amendment No. 46. I beg to move.

On Question, Amendment agreed to.

The LORD CHANCELLOR moved Amendment No. 66: Page 102, line 20, at end insert— ("In section 9(1) for the word "six" substitute the word "seven".")

The noble and learned Lord said: As I explained earlier during the discussions in Committee, this Amendment will increase by one year the period of practice required before a solicitor or barrister is eligible for appointment as a resident magistrate. Its purpose is merely to bring the eligibility for appointment as resident magistrate into line with the qualifying period for appointment as a stipendiary magistrate in England and Wales. I beg to move.

On Question, Amendment agreed to.

The Lord CHANCELLOR moved Amendment No. 67: Page 104, line 20, at end insert— (" The Maintenance and Affiliation Orders Act (Northern Ireland) 1966

In section 10(2) after paragraph (e) insert—

"(f) section 27 of the Judicature (Northern Ireland) Act 1978 ".")

The noble and learned Lord said: This drafting Amendment is consequential on Clause 27 of the Bill which deals with the maintenance and education of wards of court. Its effect will be to ensure that an order of the High Court made under Clause 27 will be regarded as a maintenance order for the purposes of Part II of the Maintenance and Affiliation Orders Act 1966 dealing with registration, enforcement and variation of such orders. I beg to move.

On Question, Amendment agreed to.

[Amendments Nos. 68 to 70 not moved.]

Schedule 5, as amended, agreed to.

[Amendments Nos. 71 and 72 rot moved.]

Schedule 6 agreed to.

Schedule 7 [Repeals]:

The LORD CHANCELLOR moved Amendment No. 73: Page 119, column 3, leave out lines 14 to 17.

The noble and learned Lord said: This Amendment was spoken to in connection with Amendment No. 46. I beg to move.

On Question, Amendment agreed to.

The LORD CHANCELLOR moved Amendment No. 74: Page 124, line 8, at end insert— In section 147(b)(ii) the words "and by leave of the judge any action in which the sum claimed or the amount involved does not exceed fifty pounds".

The noble and learned Lord said: This Amendment has already been discussed in connection with Amendment No. 35. I beg to move.

On Question, Amendment agreed to.

The LORD CHANCELLOR moved Amendment No. 75: Page 124, line 22, at end insert— ("Section 72(4). Section 83(5).")

The noble and learned Lord said: This again was discussed in connection with Amendment No. 46. I beg to move.

On Question, Amendment agreed to.

The LORD CHANCELLOR moved Amendment No. 76: Page 126, line 19, column 3, after ("44(b)") insert ("and(e)").

The noble and learned Lord said: Finally, this Amendment has already been spoken to in connection with Amendment No. 36, and your Lordships will be happy to require no further words from me. I beg to move.

On Question, Amendment agreed to.

Schedule 7, as amended, agreed to.

House resumed: Bill reported with the Amendments.

Back to