§ 5.43 p.m.
§ Lord ELWYN-JONES
My Lords, this is a matter which very much concerns the noble and learned Lord the Lord Chancellor. The admirable expedition with which the previous Bill was completed in Committee may have taken the noble and learned Lord and his staff a little by surprise. I do not know whether it would be convenient and in order in the circumstances for the House to adjourn during pleasure for five minutes. If the acting Chief Whip on the other side has no objection, may I venture to suggest that we adjourn for five minutes?
My Lords, I beg to move that the House do now adjourn during pleasure for five minutes.
§ On Question, Motion agreed to.
§ [The Sitting was adjourned from 5.44 p.m. to 5.49 p.m.]1550
§ Lord MISHCON
My Lords, may I immediately say how happy I am to see the noble and learned Lord the Lord Chancellor now sitting on the Woolsack. I beg to move the Motion standing in my name on the Order Paper, and to ask for your Lordships' indulgence if my speech is longer than the allotment to which I normally limit myself. I have, however, to deal in an unusual manner with an unusual matter so far as many of your Lordships are concerned, which is surrounded by unusual facts and circumstances, and I must, in view of its importance, try to do justice to it.
My Lords, the Motion asks,That an humble Address be presented to Her Majesty praying that the Rules of the Supreme Court (Writ and Appearance) 1979 (Statutory Instrument 1979, No. 1716), laid before the House on 20th December 1979, be annulled.".As your Lordships may know, the Statutory Instrument is the means by which the Supreme Court Rule Committee—whose membership includes members of the Judiciary and of both sides of the legal profession under the chairmanship of the Lord Chancellor of the day—make, under a statutory power, rules regulating the practice and procedure of our Supreme Court of Judicature. The only method by which the exercise of their power in this connection can be challenged, or indeed debated in Parliament, is by the procedure that I have had to adopt; namely; this Prayer for annulment of the Statutory Instrument in question.
I cannot move to annul only a part of it, although I would make it clear from the outset that my attack is directed solely to that part of the Instrument which removes the Royal Command and, indeed, all direct reference to the Monarch from the High Court Writ of Summons on which it has appeared in approximately its present form since the Uniform of Process Act 1832, but which has constitutional and symbolic origins going back over 700 years in our legal history. It had its origins even before Henry II in whose reign the writ was issued via the sheriff, who was ordered to summon the defendant in the name of the King. Holdsworth, in his History of English Law, dates the issue of original writs by the Chancellor at 1238 and writes:The English legal system had become a system of royal justice. This royal justice must be called into action by original Writs which must be sealed by the Chancellor".1551 The only time in our long history since those ancient days until now when the Royal Command on the writ has not been present, was rather understandably, during the Commonwealth, and then, by ordinance, the writs ran in the name of the Protector. All that is now to remain on this writ by way of reference to the Sovereign, under this Statutory Instrument, will be an insertion of the Royal Arms at the top of the form, which your Lordships may well think will make the document look like a typical form emanating from a Government Ministry.
I understand that a similar Motion to mine has been put down in another place at the instance of two honourable Members, but has not yet been debated. Only so that it may be apparent—although I should have thought it obvious in any event—that party politics in no way intrudes into this matter, do I mention that both of these honourable Members sit on the Government side and that I speak from these Benches as an individual Member of your Lordships' House and in no other capacity whatsoever.
I turn first to what is involved. As your Lordships will know, a writ is the usual way in the High Court of commencing a civil action in which a plaintiff claims his rights and remedies at law against a defendant. Based upon an old and valuable tradition that the subject looks to the Sovereign as the fountain of justice to see that his cause is attended to and that the dispensation of justice in this land is not dependent upon the transient Government of the day, or indeed upon some Ministry of Justice, and as a constant reminder of that, and whatever be the wording adopted for good or ill elsewhere in our courts or tribunals, the present High Court writ is addressed to a defendant with the words:Elizabeth the Second by the Grace of God, of the United Kingdom of Great Britain and Northern Ireland and of our other realms and territories, Queen, Head of the Commonwealth, Defender of the Faith".It continues with a command to the defendant to enter an appearance to the suit of the plaintiff. That merely means completing a form and is now, by this Statutory Instrument, very sensibly to be dealt with by a form of acknowledgement of service. The writ then further tells the defendant what he must do if he 1552 wishes to defend the action; what may happen to him in default; and how to act if he wishes to admit a liquidated claim.
Again let me make it clear at once that there is a good case for simplifying and clarifying the present wording of the writ and tonight I have no quarrel with the Rule Committee for their amendments in that context. That, however, has nothing to do with the deliberate removal of the Royal Command, that the defendant, should under the amendments elsewhere contained in this Instrument, acknowledge service of the writ and deal with the plaintiff's claim whether by admission or denial, or suffer the effects of default by judgment being entered against him.
What are the arguments for the removal of this traditional and symbolic wording? In my submission, they have to be over-whelming before one embarks upon the dangerous exercise of removing what is said to be a fiction—not to be confused with delegation which I submit this is—or what is thought superfluous when one is dealing with a tradition associated with the Crown. It is very easy and very dangerous in that way to create precedents for future Acts you know not of. In my humble submission—and I unashamedly regard the concept of the Monarchy in our constitution and in the life of the nation as a rock of safety and security in an insecure and sometimes insane world—there will be those in the future who will seize upon these precedents for further attempted erosion, if not destruction, of something very precious in our national life. To quote but one example, if only, if you like, to show the room for possible misunderstanding—one senior judge in Australia wrote to the Chief Chancery Master, of whose minority report I shall have something to say hereafter, in the following terms:I hope you succeed in your battle to retain the Queen's title on Writs of Summons. I thought it was only the would-be republicans in Australia who went on with that nonsense".As I have said, what are the arguments? At least one of them was considered in fairly recent years by the Evershed Committee presided over by that great Master of the Rolls, and they turned it down. All of the arguments were considered, as your Lordships will hear, only months ago by the Law Reform Committee of the Senate of the Inns of Court 1553 and Bar and were unanimously found not to be worthy of support. Your Lordships will hear that the Rule Committee itself—the Committee responsible for the present Statutory Instrument—considered them only some 18 months ago and found against them, and came to the same conclusion again less than a year ago.
Having said that, let me summarise the arguments for the omission of the Royal Command. In general terms they are that the Royal Command reduces respect for the law and makes it appear remote and distant from the ordinary life of the people; that it may appear to the defendant that the Sovereign has descended into the arena against him; that it is illogical, unnecessary, fictitious and obsolete; and that there are other forms of process in our courts and tribunals which do not have the Royal Command.
My Lords, if you had the patience I would deal—I hope, effectively—with each and every one of those arguments. I have, however, said that they have been considered by others wiser and more learned than I, and have been found wanting. However, my purpose tonight is not necessarily to prove the case for retention of the Royal Command, sincerely though I believe in that case, but to persuade your Lordships, and I hope upon reflection the Rule Committee, that before the Royal Command is removed there must be the opportunity for public discussion and consideration, which there have not been.
There must be proper consultation, not impeded by any required undertaking of secrecy, with the membership of the legal profession, and unless there is shown to be overwhelming support for this change—and the evidence is all the other way at the moment—no further action should be taken. Because of that purpose, and because I regard it as so important to achieve, I hope to avoid dividing the House at the end of this debate. In this connection, I am aware of the normal custom of this House, but will be appealing to the moderation and public spirit of those in charge of this Statutory Instrument to hear what has been said tonight and to act appropriately.
I turn to the history of this attempt to remove the Royal Command. Let me say at once that nothing in my argument tonight turns upon the retention of that 1554 "witnessing" by the Lord Chancellor, and if it be practicable to omit it but still to retain the Royal Command, I know of no objection which will be raised on this issue. When he graced the Woolsack, my noble and learned friend Lord Elwyn-Jones decided that it was appropriate to have a review of the whole function of the writ, Appearance and Service; and in June, 1975 he set up an informal four-man working party to look at all aspects of this review, which included the question of the Royal Command. That informal working party consisted of the Senior Master of the Queens Bench Division of the High Court, the Chief Master of the Chancery Division of the High Court, a solicitor who was also a member of the Rule Committee, and a senior officer of the Lord Chancellor's Department.
It is important that I emphasise that the working party records in its eventual report issued in July, 1977, having reminded itself that it was an informal working party—indeed, if I may say so in parenthesis, its creation and operation were unannounced and generally unknown—that it would be a misconception of its status and function if it called for or took evidence, or sought answers to questionnaires, or if it required special statistical material to be provided or collected, or if it sought comparative studies from other countries, and that included the Commonwealth. I repeat, that included the Commonwealth.
It therefore did none of those things. With all these limitations which it imposed upon itself, the working party proceeded with its deliberations and on all matters, other than the omission of the Royal Command, produced a unanimous report. In case it is suggested in this debate that your Lordships are dealing, in regard to the Royal Command, with an issue of little consequence and that heavy weather is being made of a mere raindrop, let me say that the working party itself certainly did not think so. I quote first from a unanimous section of their report:There is however one question which we propose to leave for separate treatment at the end of our report, namely, the important question concerning the Royal Command in the Writ of Summons and the teste of the Lord Chancellor. We have unfortunately experienced a sharp division on this question, the majority of us proposing the omission of the Royal Command on the Writ of Summons and the Chief Chancery Master proposing its retention.1555In these circumstances we decided that it would be wiser to state the proposals on which we are all agreed, without disturbing the calmness of these waters by the storm of controversy on the subject of the Royal Command in the Writ of Summons. We further decided that it would be wiser that the majority and minority views on this question of principle should be stated separately, so that they can be examined and considered from all sides. We think this is a separate and self-contained question which can be separately considered, and whatever conclusion thereon is finally arrived at should not in any way affect the remaining proposals in this report".Again, in the majority report, in which this informal working party recommended the omission of the Royal Command, those making that recommendation say:These matters are delicate and sensitive and they cannot be dealt with lightly, but must be approached with the greatest care and circumspection … We accept that in view of the very exceptional nature of the subject, there lies a very heavy burden on those who contend that the Royal Command should be omitted from the form of the Writ of Summons to establish, by an overwhelming and convincing case, that it would be right and proper to do so".The reports of the working party were duly submitted and were passed by the Lord Chancellor's Department under strict confidentiality to the Council of the Law Society who passed them for consideration to their Contentious Proceedings Committee and also, under strict confidentiality, to the Senate of the Inns of Court, who passed them for consideration to their Law Reform Committee. The Law Society Committee found itself equally divided on the question of removal of the Royal Command and said so, and, therefore, in that sense did not support the recommendation for the removal.
The Law Reform Committee of the Senate, however, set up a special working party under the distinguished chairmanship of Mr. Charles Sparrow, Q.C., who had as his fellow members representatives of the Queen's Bench Procedure Committee of the Bar, the Chancery Procedure Committee of the Bar and the Family Law Bar Association. They reported back in May 1978, only some 21 months ago, and their unanimous recommendation was, in turn, unanimously approved by the Law reform Committee of the Senate. I read from the report which was kindly supplied to me by the Office of the Senate:Omission of the Royal Command.We do not approve this recommendation. We support unanimously the recommendation of the Chief Chancery Master".1556 That recommendation of the Chief Chancery Master was, of course, the minority report of the working party to which I have referred, and was against the removal of the Royal Command.
In June 1978 the original working party report—that is, the majority and minority reports—came before the Rule Committee, the same committee as is responsible for the Statutory Instrument before your Lordships tonight. By a vote of that Committee, with but one dissentient—and he was a member of the working party and was a signatory of its majority report—the Rule Committee decided against the recommendation of the majority report that the Royal Command should be dispensed with, and supported the minority report of the Chief Chancery Master that it should be retained. The Senate was so informed; so was the Law Society. Both bodies, I am assured, were content with this decision and that this issue had, as they thought, been respectably interred.
As recently as April 1979, but nine months ago, a formal document from the Lord Chancellor's Department, with some amended draft rules relating to all the other matters dealt with in this Statutory Instrument, was sent for consideration, again under the umbrella of confidentiality, to the Senate, the Law Society, and, by special leave obtained by the Law Society, to the London Solicitors' Litigation Association, the Rule Committee having met in March 1979. May I read from that April 1979 document.There was a difference of opinion amongst the members of the working party as to whether the Royal Command should be omitted from the Writ. The Rule Committee preferred the minority view of the Chief Chancery Master that it should be retained".The document goes on to refer to the new form of writ proposed, and deals with it as follows:The new form of Writ presented in the draft amendments while retaining the Royal Command …".The professional bodies were left in no doubt whatsoever that the Royal Command was in the new form of writ proposed by the Rule Committee and that as I have said, the issue of removing the Royal Command was dead and buried and now had a formal memorial. That was, I repeat, in April 1979.
With the sole purpose of getting the chronology and record right, may I bring 1557 to your Lordships' recollection that a certain national event occurred at about this time which led to the noble and learned Lord, Lord Hailsham, gracing the Woolsack for a second time. I pause here appropriately, and indeed with appropriate respect, before telling your Lordships of the opening of an amazing chapter in this saga.
Very soon after May 1979 rumour had it that the Rule Committee, over which the noble and learned Lord the Lord Chancellor presides by virtue of his office, was being asked to consider again the omission of the Royal Command as to which they had come to a firm, recorded and published decision only a short time before. The Chief Chancery Master, to whose minority report, previously supported by the Rule Committee, I have referred, was told that this was a fact and ventured to express views—views which of course he had consistently held—to colleagues and others of the legal profession. He was in no way responsible for any communication whatsoever to the media.
The Chief Chancery Master was not only told that in discussing the matter as he had he was guilty of some dereliction of duty, but was verbally informed at the very highest level that he had committed an offence under the Official Secrets Act. In endeavouring to achieve by this speech the purpose of which I have informed your Lordships, I am intent on keeping a moderate tone. Perhaps indeed silence in this context may be more eloquent than words. I shall therefore merely say that the Chief Chancery Master decided to resign the high position which he had held with such distinction, so important to him was this issue, in order that there could be no limitation upon his right to say and write what he felt about it.
Perhaps I may be permitted to add that he is, and will continue to be, respected and indeed loved by his colleagues and the members of the legal profession who have appeared before him, whether they agree or disagree with his views on this matter, as a man of principle, and that he will be honourably remembered as a fine Chief Chancery Master, and not least for the manner of his going.
My information is that the only way by which the Senate and the Law Society 1558 were officially informed that it had been decided to reopen the matter of the Royal Command was in November last when they were sent a copy of an agenda, as is the usual courtesy practice, for a meeting of the Rule Committee to be held on 26th November last. That agenda had as one of its items the Lord Chancellor's intention to reopen with the Rule Committee the matter of the Royal Command on the writ.
At that meeting of 26th November, the Rule Committee—apparently at the invitation of the Lord Chancellor—reversed its previous decision. No communications were sent to inform the Senate or the Law Society that the Rule Committee had done so. No explanation has been given to this very day as to why the Rule Committee decided to change its mind. There has been no information as to new arguments or evidence.
I believe that I am right in saying, but no doubt I shall be corrected by the noble and learned Lord the Lord Chancellor if I am wrong, that there has been no consultation with the Law Commission. As for the public and Parliament, there has been no opportunity whatsoever to discuss this question except as a result of this Motion tonight. This was a question described as—and I repeat the words used in the majority report which the Rule Committee has, by changing its mind, decided to support—"delicate and sensitive"and as having to be"approached with the greatest care and circumspection", and as imposing, by virtue of "the very exceptional nature of the subject, a very heavy burden on those who contend that the Royal Command should be omitted to establish by an overwhelming and convincing case that it would be right and proper to do so".
Far from the case for the removal of the Royal Command meriting any such description as "overwhelming and convincing", it is one unsupported by the appropriate committee of the Law Society, unanimously opposed by the appropriate committee of the Senate, and only so very recently dismissed with but one dissentient by the same Rule Committee responsible for the Statutory Instrument which now seeks to remove the Royal Command—and discussed by nobody else.
The right is given under the appropriate statute for the Lord Chancellor and any 1559 four members of the Rule Committee to make new rules. I very much hope that it may be possible as a result of this Motion for there to be some concession—that is all I seek—which will enable a statement to be made before this debate concludes that what has been said in this debate will be brought to the attention of the Rule Committee, and that in view of what I hope will be the expressed feeling of this House, the Rule Committee will be recommended by their chairman, the noble and learned Lord the Lord Chancellor, who has the respect of us all, by a further speedy and short Statutory Instrument, which can so easily be prepared in this instance, to reproduce all the reforms otherwise provided by this Instrument but to reinstate the Royal Command in the new form of writ.
The new Statutory Instrument could easily be effected at the same date as the date of operation of the present Instrument, namely, June next. If the Rule Committee decide not to do this, despite the noble and learned Lord's advice, if he is prepared to tender it, then I hope that at least we will hear that the committee would be advised by him, by the same means, to defer the date of coming into operation of that part of the Statutory Instrument which effects the omission of the Royal Command until such time as the Rule Committee has had the benefit of considering views, capable of being expressed, in full and public discussion and after proper and uninhibited consultation with all those directly concerned in this matter, not least the professional legal bodies who would now be free to test the opinion of their membership, who are in daily contact with plaintiffs and defendants and who have experience of day-to-day practice in our courts. I may add incidentally that these bodies are, to my own knowledge, most unhappy about the requirement of strict confidentiality which is imposed on them in connection with proposed amendments of the Rules, a matter which, one would have thought, scarcely merited such strict security.
I was handed only an hour or so ago the 16th Report from the Joint Committee on Statutory Instruments and, as your Lordships will know, that committee is not empowered to express any views on the merits of a Statutory Instrument. 1560 That report was available in both Houses only this morning and I feel that I should, very shortly, read from it:The Committee draw the special attention of both Houses to the Rules of the Supreme Court (Writ and Appearance) 1979, Statutory Instrument 1979, No. 1716, on the ground that their purport calls for elucidation. The Rules amend the Rules of the Supreme Court mainly by prescribing new forms of Writ of Summons and replacing the entry of appearance by acknowledgement of service. In the Committee's opinion, the new form of writ makes an important change in court procedure by the omission from it of the Royal Command to a defendant to enter an appearance. The purport of this change has been elucidated in oral evidence submitted by the Lord Chancellor, Chairman of the Supreme Court Rules Committee".I am really indebted to your Lordships for your patience and forbearance and apologise again for detaining the House so long. I beg to move.
§ Moved, That an humble Address be presented to Her Majesty praying that the Rules of the Supreme Court (Writ and Appearance) 1979 [S.I. 1979, No. 1716], laid before the House on 20th December 1979, be annulled.—(Lord Mishcon.)
§ 6.25 p.m.
§ The LORD CHANCELLOR (Lord Hailsham of Saint Marylebone)
My Lords, I was intending to address the House, but if the noble Lord, Lord Airedale, wishes to speak at this stage——
§ The LORD CHANCELLOR
I think it would be for the convenience of the House, my Lords, if I replied at once to the various arguments which have been presented with great clarity by the noble Lord, Lord Mishcon, because I do not think he has given at all a fair or full account of what has taken place. I cannot of course complain, in view of the report of the Committee on Statutory Instruments, that he should have brought the matter to the attention of your Lordships; I take it that that was the object of the report.
I should, first of all, explain the capacity in which I now address the House. I cannot do so as a Minister of the Crown because the committee whose Statutory Instrument is under discussion is not in any 1561 sense a Government committee; it is a committee of which the Lord Chancellor is chairman, and I would respectfully like to set out the composition of the committee to indicate exactly who belongs to it; and I am reading from the Supreme Court of Judicature Act 1925. It is a committee composed of the Lord Chancellor, together with any four or more of the following persons: the Lord Chief Justice, the Master of the Rolls, the President of the Family Division, the Vice-Chancellor, four other judges of the Supreme Court, two practising barristers—who in practice represent the Senate—two practising solicitors of whom one shall be a member of the Council of the Law Society and the other a member of the Law Society and also of a provincial Law Society.
The rule which has now been under discussion is signed not only by myself but by Lord Widgery, Lord Denning, Sir John Arnold, Sir Robert Megarry, Sir John Donaldson, Sir Hilary Talbot, Sir Patrick O'Connor, Mr. Maurice Price, Mr. John Toulmin, Mr. Montgomery Campbell and Mr. Harold Hewitt, two of the last four being practising barristers representing in effect the Senate and the last two representing the Law Society.
The first thing I should like to say about that committee, with great respect to the contrary impression, I hope unintentionally, conveyed by the noble Lord, Lord Mishcon, is that anybody who thinks that a committee so composed, mostly of Privy Councillors and almost entirely of the senior judiciary, would do anything which would diminish the authority or position of the Crown or the monarchy in this country, is not only unthinkable but, I would venture to suggest but for the speech to which we have just listened, ridiculous.
It is quite clear that a committee so composed would not entertain for a moment a proposal which either was calculated or likely to have that effect. And I must say this in view of the references to the late Chief Master of the Chancery Division, who is not a member of the committee and never has been, and to the various suggestions implicit in the noble Lord's speech and explicitly stated in a letter to The Times by Mr. Ball; that anybody who thinks that I myself could override or steamroller the views of a 1562 committee so composed is also being insulting as well as ridiculous; insulting to the committee and, in fact, ridiculous.
The idea that those people whose names I have read out could be overridden or stampeded by the Lord Chancellor is one which does not bear examination for a single moment. I must add this in my own defence, since a veiled attack has been made upon me. If I had the power to try improperly to influence the opinion of the Lord Chief Justice, the Master of the Rolls, the President of the Family Division, the Vice-Chancellor, Lord Justice Donaldson, Mr. Justice Talbot, Mr. Justice O'Connor and representatives of the Law Society and of the Bar, I simply would not wish to exercise it. I am the Chairman of the Committee, and I am nothing else. I must add this to what I have to say to the noble Lord, Lord Mishcon. Although I might have an opinion about the subject of discussion before the Rule Committee, if I found that there was an equality of vote, or any serious divergence of opinion in which I exercised a casting vote, I would always exercise it against change, not because necessarily I do not favour change, but because I regard the position of a chairman in such a situation as one in which a casting vote should be exercised on principle, rather as the Speaker of the House of Commons exercises his casting vote when there is an equality of vote.
I must say that not merely have all those persons signed the Rules which have been so severely censured by the noble Lord, Lord Mishcon, but I think that every member of the committee was present. They not only signed them, but they were unanimous in support of them. The idea that I can advise the committee or recommend the committee, or do those things which the noble Lord, Lord Mishcon suggests that I should do, is one which is quite contrary to fact. What I can do, and what of course I shall do, is to convene a committee which can consider what the noble Lord, Lord Mishcon said; and it can consider the report of the Statutory Instruments Committee. Of course the committee can be reconvened, but the idea that I could influence it, if that was not its opinion, is one which I must steadfastly resist. It is a committee of which I am chairman in virtue of my office as Lord Chancellor, and nothing else, and I will not try to influence its opinion on matters upon which it is qualified to 1563 adjudicate or which depend upon its own professional judgment. I can bring a matter to the attention of such a committee, but I cannot compel it to do anything.
§ Lord MISHCON
My Lords, I am absolutely delighted to intervene for one purpose, and I am most grateful to the noble and learned Lord Chancellor for allowing me to do so. If my censure tonight can be turned upon a committee, I should feel very much more gratified because then I should know that there was no question of a personal remark or of any kind of argument being directed to the noble and learned Lord the Lord Chancellor himself. While I am on my feet, may I say I know that the noble and learned Lord would never wish to mislead the House. I have it on the authority of the Senate and the Law Society that their members who are on that committee are in no way representatives of either the Senate or the Law Society; they are merely their nominees, at the request of the noble and learned Lord.
§ The LORD CHANCELLOR
Of course they are nominees, my Lords, but they are in fact the channel through which the Committee, when matters are under discussion, consults the two branches of the profession. That is what happens, and that is why they are there; and they have in fact exercised that right, as I believe, to the full.
Having said that, let me now turn to the form of the originating process in the High Court, which is what we are discussing. It is of course, true and I suppose that there would not be a Member in this House, with possibly only one exception whom I can think of, who would not recognise the Queen as the fountain of all justice in this country; and we all would. Speaking for myself, and having been deeply wounded by some of the implications which have been made, may I say that I have been a Privy Counsellor since 1956. I have on many occasions sworn both the Oath of Allegiance to Her Majesty and the judicial oath which binds me to serve Her Majesty. I was deeply wounded by the suggestion that I would be even a party—even as a minority—to a view which would undermine the position of the Monarchy as 1564 the fountain of justice. All the courts of this country—and I am speaking, of course, in particular of England and Wales but I see the Lord Advocate present, and no doubt if there were a representative of Northern Ireland he would say the same—are the Queen's courts. The law which is administered is the law of the Queen in the sense of the Queen in Parliament by statute, or the Queen's Peace by common law.
All the judges of those courts, except in the Duchy of Lancaster, are the Queen's justices. They are the Queen's justices, from the lowest JP, most recently appointed, to the Lord Chief Justice and the Master of the Rolls themselves, and for that matter, the Lord Chancellor. They take the oath to serve Her Majesty in the office of justice of the peace—or Lord Chief Justice.
The idea that any process in any court requires a Command from the Queen to make it the Queen's justice is, I should respectfully have said, but for the speech to which we have just listened, a simple piece of legal nonsense. The great majority of processes in the courts of this country do not bear the Queen's name or Title, or the Queen's Command. This is true from the information before a petty sessional court to a number of processes in the High Court. The noble Lord gave the impression that the Queen's Command was the sole, or ordinary, method by which High Court proceedings are started; this is not so. One has only to look at Order 5 of the Rules of the Supreme Court to be able to point out that a bankruptcy petition, a petition for divorce, an originating summons in the Chancery Division, an originating motion in the Chancery Division or the Queen's Bench Division, or an ex parte summons—none of these bears the Queen's name, or the Queen's Command. But they are equally demands for justice in the name of the Queen, in front of the Queen's court.
This, of course, is true in every court in the land. In the county court, before which by far the largest quantity of civil litigation takes place, the Queen's name and the Queen's Command are not part of the originating process at all, and so it is true throughout the criminal courts of the country, although the Queen herself in such a case is the prosecuting party 1565 nominally. So the idea that the process of the Supreme Court necessarily involves, as part of our respect for the Monarchy, the Queen's name, is not only dangerous, but it is undermining of the whole position of the Monarchy in relation to the administration of justice in this country.
The Queen's justice is administered just as much in the county court as it is in the High Court, just as much when a divorce petition is heard, as when there is an action concerning the collision of two ships at sea. The writ is issued in the High Court in what I would almost call, without disrespect, a ragbag of different residuary actions which are not started in any other way. Typical examples would be an action involving a collision between two motor cars and a pedestrian in Piccadilly Circus, or an action for the price of goods sold and delivered. The question we have to consider, when we are considering the form of originating process in the High Court, is whether much assistance is gained from the Royal Command.
My experience, which goes back for I think 50 years or so at the Bar and four years as Lord Chancellor—and I am very happy to see the noble and learned Lord, Lord Elwyn-Jones, in his place—is that a very great deal of unhappiness, abuse and misunderstanding is in fact caused by the present form of the writ. It is directed to the defendant, it begins with the Queen's Title, and it then says:We command you that within 14 days",and so on, and then:Witness: Quintin McGarel Baron Hailsham of Saint Marylebone",Or,Elwyn Elwyn-Jones",as the case may be and as the fortunes of political warfare cause one to change to the other. It does not tell you on its face either what the writ is or what the defendant is expected to do, except that he is to enter an appearance, which as a matter of fact he is under no obligation to do.
My Lords, if you really respect the Monarchy in this country, as I do and as I have no doubt the noble Lord, Lord Mishcon, does, you do not want it to say something which is basically ridiculous; you do not want it to be associated with anything which is ignoble, and, above 1566 all, you do not want it to be associated with something which is an untruth. On the face of the writ at the moment there are three or four rather palpable untruths. One is that the Queen has issued a command. She has not, because the defendant is not under an obligation to do anything. The second is that the Lord Chancellor has witnessed it. He has not, because he has witnessed nothing; the thing has been bought out of a law stationers. Until you look at the back of the writ you do not know what the thing is about or what you have got to do, because it contains something perhaps not more informative than that the plaintiff's claim is in damages for negligence. So the writ is not a satisfactory document as it stands. That is in contrast, for instance, to a county court summons, which tells the defendant exactly what the claim is that is made about him and what he has got to do about it when he gets it. What he has got to do about it, or what people want him to do, if he wants to defend the action, is to say, first, whether or not he has received it; secondly, whether he admits the claim or he does not; and, thirdly, if he does not admit the claim, whether he is going to defend it on the grounds that he has a defence on the merits or on the grounds that he disputes the jurisdiction of the court.
Perhaps I may just say this by way of light relief, though it is not really so much light relief as an illustration of the kind of thing that happens. I put before your Lordships the kind of misunderstanding which arises from the form of writ which is now before the House. I will tell the House in a moment the more serious misunderstandings, but this is a letter which was put into my hands only this week. It is a letter written by a defendant to his solicitor. The defendant had received a writ, and he writes to his solicitor as follows:Regarding the writ issued in this matter, a copy of which we enclose, we would inform you as follows:On the 30th October 1979 a gentleman by the name of Quintin Hailsham, we believe, acted on behalf of W. Sadler. A test drive of the vehicle, Volvo HUW 497 N took place, and he left £10 deposit after a satisfactory test drive. We the above company agreed with Mr. Hailsham to check the car over and make the car satisfactory for Mr. Sadler".He had mistaken the words "Witness—Quintin McGarel Baron Hailsham", 1567 and believed that I was the witness in the case. I do not altogether blame him for thinking that when it said "Witness" it meant witness.
My Lords, the noble Lord, Lord Mishcon, suggested that it would be proper to omit the Lord Chancellor's name but to keep the Queen's name on it. That is the one thing which would be constitutionally impossible, because where the Queen's name appears on any document, so far as I know, either the Lord Chancellor's name or that of some other responsible Minister must appear on it to attest it. You can have both or you can have neither, but you cannot have one without the other. That, I should have thought, was really constitutionally elementary in England. I do not know whether it is true in Scotland, but it is true in England. At any rate, the form which I have read out dates, as the noble Lord pointed out quite accurately, from Henry II. In those days the King or the Queen actually signed the top of the document and the Lord Chancellor actually signed the bottom of the document. What happened to the defendant if he did not appear—because the word "appearance" is used even to this day—was that he was arrested and dragged in front of the court. That was literally true until 1832, when this archaic form of language was retained but the obligation physically to appear and the liability to arrest disappeared. So, really, it is not surprising that the Rule Committee should think that this extraordinary piece of archaism should be revised. The question is: How?
I must add at this stage that although Messrs Sadler (or whatever their name was), who mistook me for the witness in the case, were perhaps an unusual example of the misunderstandings which arise. I can say from my experience that a fairly regular trickle of people write to me—old ladies who have been served with writs, old clergymen, people who do not really know—having been frightened out of their wits by this document. They write to me saying, "How could you endorse, or use Her Majesty's name to endorse, a claim which is so fraudulent as that of the plaintiffs?" They complain of the Lord Chancellor primarily, but latterly also of Her Majesty. Indeed, I can remember shortly after I became Lord Chancellor sending such a document to the noble and 1568 learned Lord, Lord Elwyn-Jones, and asking him to deal with it on my behalf; to explain in terms that the Queen really had nothing to do with it although the justice was her justice, and, as for the Lord Chancellor, he had witnessed nothing because the form had been bought from a law stationers' and he had never seen it.
§ Lord ELWYN-JONES
My Lords, I dealt with the question of the noble and learned Lord in my subsequent communication to the person in question.
§ The LORD CHANCELLOR
I forget what the noble and learned Lord said, but what he says is always nice, always courteous and always sensible. At any rate, he was not the author of the letter. I can recall another case when I was a member of the Bar. There was a vexatious litigant who, not wishing to pay the £5 necessary to get the seal of the court put on the writ, bought 25 or 30 of these forms from the law stationers' at a time, and fired them off against defendants, all of whom were greatly frightened, did not know what to do and were put to a great deal of expense and trouble because they saw the Queen's Command and the Lord Chancellor's name on the document which the vexatious litigant had bought. This caused a very great deal of unhappiness and a great deal of expense.
It is of course quite true that in 1975 my predecessor referred this, not unnaturally, among other things, to the Rule Committee for consideration. Of course, I am not allowed officially to know (though I suppose I can know perhaps more than I am allowed to pretend I know) the course of events which took place during the tenure of his Lord Chancellorship. At any rate, by the time I became Lord Chancellor—and I do ask the noble Lord, Lord Mishcon, to disabuse himself of the idea that I was the initiator here—there was in fact, in addition to the documents which he described, a report from all the Queen's Bench Masters, going up to the Senior Master, Sir Jack Jacob. They suggested the dropping of the Command and the dropping of the teste, and, indeed, a form of writ which was basically that which is now contained in the Rules of which such complaint is made.
What did I do, having just taken office? I referred it to the Rule Committee, and 1569 I asked for a further investigation and a further consultation to take place. That was the only thing I did, although I happened, as a matter of fact, to agree with what the Masters had suggested. But that is what I did. What was the result of what I did? That was rather remarkable. I think that it was so remarkable that I had better refer to the original document because, having referred to the Rule Committee, I woke up one morning, having, as far as I know, done no harm to anybody during the night, to read the "William Hickey column in the Daily Express:Hailshamv. Regina sparks legal row. Within weeks of taking office as Lord Chancellor, Lord Hailsham has created a major row in the High Court directly involving the Queen. Already one major figure has threatened to resign over Hailsham's controversial decision to eradicate the Queen's name from all High Court writs"—I had made no such decision—and a major debate involving judges and such figures as Lord Denning will have to thrash out the history-defying decision. In the forefront of the quarrel is the Chief Master of the Supreme Court, Robert Ball, who has warned Hailsham that he will quit his £18,000 a year job if the Queen's name goes.At that stage I had had no communication from Master Ball.This does not quell the twice-times Lord Chancellor who says the Queen's name on writs frightens people and has no legal significance these days".Then it referred to my private secretary and said that, according to Mr. Montgomery Campbell, who is one of the members of the committee, I was as much in favour of the Royal Family as anybody but the Royal Command should be dropped. "'It is a nonsense ', he trilled". How Mr. Montgomery Campbell trills, I do not know. It went on:As the beaks bounce on their benches with rage, the Chief Master of the Supreme Court broke ranks long enough to tell me, 'I have said a lot about this already and if things go a certain way, I will be saying a great deal more. Make no mistake. This is the start of a big one'.Having woken up to this with my breakfast coffee, I naturally wondered what it was all about. I was, at first, extremely incensed with William Hickey but when I got to my office I was told there was no doubt whatever that Master Ball was the author of the story, and so far from being innocent of the leak, he has since written a letter, of which I hold a copy, in which he confesses to three separate telephone 1570 Conversations leaking the matter to William Hickey's representative on the Daily Express. So I could hardly blame Mr. Hickey.
Since Master Ball had once again breached confidence—and I certainly admit to the noble Lord, Lord Mishcon, that up to this moment he had enjoyed my complete confidence and my complete sympathy, although it was not very well merited—I sent for Master Ball and asked him to explain how the matter got into William Hickey in this form and why, if it had got into William Hickey, it was not more truthful? After a certain amount of bluster, Master Ball had to admit frankly that he was in fact the author of the leak.
The noble Lord, Lord Mishcon, says that on that occasion I threatened him with the Official Secrets Act. I do not blame Lord Mishcon for saying it because Master Ball wrote to The Times. In the ordinary course, conversations between the Lord Chancellor and the judiciary are absolutely confidential; and nothing except a breach of confidence would have led me to tell the House exactly what I said to Master Ball. But I happened to make a record at the time and I know exactly what I said. I said to him that the agenda of the Rule Committee was always confidential and that those who happened to know its contents should communicate it only to those who had need to know; and that to communicate it to William Hickey was doubly indefensible. I said that the duty of confidence was even more important where the Queen's name was directly involved and that that made his behaviour even more difficult to understand.
By the time I saw him, I had seen a letter to one of my senior officials in which he had threatened to resign if the Rule Committee decided in a way with which he disagreed. I told him that this was a most improper action on his behalf. I told him that he had no right to seek to blackmail the Lord Chief Justice and the other distinguished members of the committee by threats of resignation. It was for them to decide what the Supreme Court was to do; and they were not to be threatened by the Chief Master of the Chancery Division. Up to that moment I had made no reference to the Official Secrets Act at all.
1571 Then this is what I said—I remember the exact words—"If you were only a junior official, I should have to remind you of your duty under the Official Secrets Act; but it is my melancholy duty now not to do that but to tell you that it is a melancholy day when the Lord Chancellor has to remind the Chief Master of the Chancery Division of the obligations of a gentleman." If that is threatening him with the Official Secrets Act, I can only say that it is not my idea of threatening a man under the Official Secrets Act. Indeed, I have not studied the question of whether a Chief Master of the Chancery Division who had behaved in this way was, in fact, subject to the Official Secrets Act. I have not studied it to this day.
To say that he did not communicate with the Press, to say that he had been entirely discreet in his dealings with the Press, is to say what is, in fact, not so. I told him to go away and consider his position—leaving him in no doubt whatever that he must either send an unqualified apology to me or resign. He sent me an unqualified apology—which I accepted—not a word of which he communicated in his misleading letter to The Tines after-wards.
In fact, the Rule Committee had not met and did not meet until November. The only part I played in the preparation of the agenda was to tell the secretarial staff to frame two alternative versions of the originating process, one of which contained the Queen's Command in a changed form which might not frighten people and contained the view of the majority of the working party (in which Master Ball had been in a minority of one) and one which contained no reference to the Queen's Command but did contain what the Masters of the Queen's Bench Division thought was a more suitable version, which was the Royal Arms instead of the Command. That was the document which came before the Rule Committee on 26th November. I made no attempt to persuade them in one direction or another. I said, "You can do nothing; you can select one of these alternatives; or you can select the other." And unanimously and without pressure from me, they selected the form now before the House.
It is for this that I have been made the 1572 subject of a concerted attack in the Press, very largely orchestrated by Master Ball. I can say to the House that I have tried throughout my life to serve the law, to serve my Queen, and to serve my country; and that I deeply resent this attack made on me. This does not alter the position. The Rule Committee have to make up their minds between two alternative forms of the originating process. I do not particularly mind which the Rule Committee ultimately chooses or even if the House rocks the whole thing and joins the army of the troglodytes who stop every helpful suggestion for the reform of the law. This is in the hands of the House, and whatever follows will be in the hands of the Rule Committee. All I can say is that I do not believe that the present form is sustainable; I do believe that it diminishes and does not enhance the position of the Monarchy. I do believe that the teste by the Lord Chancellor leads to both injustice and misconception, and I do think that when you are using the Queen's name you should not make her seem to do something which is either untruthful or ridiculous. If we try to frame a Royal Command, saying that you must fill in a form with several boxes in it, putting a tick in the appropriate box, and saying that unless you do this within 14 days certain untrue consequences will happen, when the defendant is not under an obligation to do anything, you are in danger of under-mining the Monarchy and not strengthening it.
Having said that, I want to be as conciliatory as I can to the noble Lord, Lord Mishcon. I am not going to make recommendations to these senior judges. What I will do, in view of what he has said, is to reconvene the Rule Committee and ask them to read his speech and to read anything else which noble Lords may think it fit to say, and come to their own conclusions. I am not going to leave the writ in its present form. They can choose between the form which includes the Royal Command, which I think is then a brutum fulmen, or they can choose the form to which they have adhered by their unanimous decision, which is now under discussion.
If it is suggested that this House ought to reverse a decision of the representatives of the High Court Bench and the two branches of the legal profession when, so far as I am concerned, the fullest 1573 consultation has taken place through the appropriate lines of communication, all I can say is that that is not the way I could recommend this House to behave. I would urge the noble Lord, Lord Mishcon, to withdraw his Motion on the undertakings which I have given.
I do not know what Lord Elwyn-Jones's practice was when he was chairman of the Rule Committee. I fancy that it was not very much different from what mine is; but, so far as I am concerned, I know the practice while I am Lord Chancellor is to consult as fully as possible with both the branches of the profession and their interested bodies. My normal channel is with the Law Society, on behalf of the solicitors' profession. I leave them to consult subordinate bodies, their provincial societies or the litigating solicitors' association, or whatever it may be.
The same is true of my relations with the Bar. I approach them through the Senate, with whom I wish to have the fullest possible consultation. Except in the very few cases where I am working to a tight timetable, I would wish there to be a very full consultation indeed. I hope that future discussions will be carried on perhaps through the Law Journal or the Law Quarterly Review rather than through William Hickey's gossip column on the instigation of the Chief Master of the Chancery Division.
§ 7.3 p.m.
§ Lord ELWYN-JONES
My Lords, the noble and learned Lord has addressed a question in my direction. This is a matter for the House to decide and for my noble friend; but the noble and learned Lord the Lord Chancellor has indicated his willingness to reconvene the Rule Committee to examine the matter again in the light of what has been said in this debate and in other places. It would certainly conform with the normal practice of the Lord Chancellor to consult and take soundings from those who are able to advise upon these matters. It is entirely, of course, a matter for the House and for my noble friend whether in those circumstances the appropriate course now would be to accept the willingness of the noble and learned Lord the Lord Chancellor to recall the Committee and to leave the matter there at this stage of the proceedings.
§ 7.4 p.m.
§ Lord AIREDALE
My Lords, I should like to take this occasion to mention briefly that I think we have here an instance of a defect in our own procedures. Not by any means is this a unique instance but it is an instance. At the conclusion of his magnificent speech—if I may be permitted so to refer to it—the noble Lord, Lord Mishcon, referred to the report of the Joint Committee on Statutory Instruments.
This Instrument came before the joint committee last Tuesday week. I think that I can say safely in the presence of three fellow members of the joint committee that the committee was most deeply grateful to the noble and learned Lord the Lord Chancellor for coming before the committee as a witness and explaining to us in great detail the reasons for the making of this Instrument; and then, with the greatest patience and good humour, answering a number of questions from Members of the committee. In addition to making their report, to which the noble Lord, Lord Mishcon, referred, the committee ordered that the Lord Chancellor's evidence be printed in the hope—as always in the hope—that, if and when the matter came to be debated in the House, this informative evidence would be available in printed form in advance for noble Lords who may be interested.
It immediately became quite clear that there was no hope at all of having the Lord Chancellor's evidence printed in time for this debate, and it was even very doubtful whether it could be available in the printed form by the end of the 40 days that were available to the noble Lord, Lord Mishcon, to move his Motion. So the next best course was adopted: an uncorrected proof of the evidence was placed in the Library. But of course the disadvantage of that course is that it attracts far less publicity than the proper arrival of a printed document in the Printed Paper Office because in the latter case the document is minuted on what I think is called the pink form which is circulated to noble Lords who arc interested; and in that way noble Lords become aware that this document of evidence is available.
So in this case—as in others—noble Lords were deprived of their best opportunity of knowing that the Lord Chancel 1575 lor's evidence was available in written form. It is rather a waste of public money if a document is going to be printed only after the subject-matter has been debated and the matter has been decided and all the "fizz" has gone out of the subject-matter of the document. I will not weary the House with putting forward remedies for this situation. I am sure that wiser heads than mine can do it better. But I will make one suggestion: in the case of the moving of an Affirmative Instrument, when this is referred to in the Minutes, as when one reads in the Minutes that on 21st February the Earl Ferrers will move a draft order to be approved, one finds in brackets and in italics afterwards:[Seventeenth Report from the Joint Committee].If that practice were adopted in the case of Prayers to Annul like this, that would be another clue to noble Lords to enable them to discover that written evidence was in existence which they would be able to consult before the taking place of the debate. That is all I have to say and apologise for taking up time.
§ 7.10 p.m.
§ Lord MISHCON
My Lords, I have no doubt that the intervention from the noble Lord, Lord Airedale, has reduced the atmosphere by giving an interval of time which all your Lordships would want in these circumstances. There is much I should have loved to say in answer to the noble and learned Lord the Lord Chancellor. I am not going to take advantage of it. He has shown tonight, as he has shown throughout his career, the art of the brilliant advocate—if I may say so, a brilliant advocate who forgot to mention, for example, that the Rule Committee he was talking about twice decided to the contrary of what they have now decided and that the Senate of the Bar were equally unanimous in their view.
The noble and learned Lord the Lord Chancellor has been good enough to make the concession that he will convene a meeting of the Rule Committee. I am grateful to him for it; and I am grateful, too, for his assurance that before the Rule Committee come to a decision at all there will be the fullest consultation with all bodies representing the legal professions. I repeat my gratitude and ask leave of the House to withdraw my Motion.
Motion, by leave, withdrawn.