HL Deb 02 April 1981 vol 419 cc312-23

3.53 p.m.

Bill read 3a, with the amendments.

Clause 9 [Assistance for transaction of judicial business of Supreme Court]:

Lord Roskill moved Amendment No. 1: Page 6, line 33, leave out from ("section") to ("if") in line 34 and insert ("24 of the Courts Act 1971 (temporary appointment of deputy Circuit judges and assistant Recorders)").

The noble and learned Lord said: My Lords, I beg to move the amendment to Clause 9 which stands in my name and that of my noble and learned friend the Lord Chief Justice, who has asked me to express his apologies to your Lordships for his absence this afternoon. This amendment is one of a group of amendments which stand in our names, the most important of which is that which appears as a proposed new clause to follow Clause 143. In order to save time I should like to have your Lordships' leave to go straight to that last amendment; all the others are consequential upon it.

What lies behind the proposed amendment is this. As your Lordships will be aware, because of the enormous pressure of business in Crown Courts and in county courts it is necessary for my noble and learned friend the Lord Chancellor from time to time to invite barristers and solicitors of the required qualification, by reason of the number of years of call or admission, to sit part-time in Crown Courts or in county courts. They are sometimes called upon to sit there for a short period of time, or for a longer period of time, or perhaps for a particular case that has not been able to be slotted in to the list of a particular circuit judge or county court judge.

Questions have arisen as to the status of those who are invited thus to sit, and the Lord Chief Justice, with the consent of the presiding judges on the circuit, and I am assured, of the Council of the Bar, which has been consulted, is anxious that the status of those persons should now become plain and be regulated by statute, so there shall no longer be any doubt about it. They have from time to time been describing themselves, or have been described, as deputy circuit judges. They are not entitled to that description, and it is right that that should now be made plain by statute.

If your Lordships would be so good as to look at the proposed new subsection (1) of the proposed new clause to follow Clause 143, you will see that the title of "deputy circuit judge" is hereafter to be limited to those who, before retirement, have held office as a circuit judge, a judge of a High Court, or even as a Lord Justice of Appeal, and who are offering their services to sit as deputy circuit judges, as, I am told, is happening from time to time in the case of both retired High Court judges and retired circuit judges.

Anyone else, solicitor or barrister, who is invited by my noble and learned friend to sit from time to time in those courts will, if the amendments are approved, henceforth have the description of "assistant recorder" and no other title. That will go back to a practice which those of us who were in practice before the Courts Act will remember; namely, that those who did from time to time deputise as recorders of cities, as they then were, were called assistant recorders.

This is a small change, but it is, I am told, one which those upon whom falls the day-to-day administration of justice in the lower courts are most anxious to secure and pass on to the statute book in order that there shall no longer be the complications which have arisen hitherto and which, it is hoped, will be cured. My Lords, I beg to move.

The Lord Chancellor (Lord Hailsham of Saint Marylebone)

My Lords, the Question is that Amendment No. 1 be agreed to. I think that the other amendments referred to by my noble and learned friend are, in addition to Amendment No. 1, Amendments Nos. 8, 9, 10, 13 and 14.

Lord Elwyn-Jones

My Lords, I confess that during the long period when we have had the benefit of the assistance of counsel in the work of the circuit courts and other courts there has been anxiety about their description and status. If it be the case that the Lord Chief Justice and others think that this is a matter which needs statutory remedy, so be it. I certainly do not quarrel with the designations that are proposed. The high office of assistant recorder was my initiation into the judicial process many years ago; and I see present my noble and learned friend Lord Shawcross. He will remember those far-off days, which bring back many happy memories. I shall await with interest the observation of the noble and learned Lord the Lord Chancellor as to whether he is happy about this proposal. On the face of it, I see nothing wrong with it. I am only a little surprised that it is thought to be necessary.

Baroness Phillips

My Lords, may a magistrate intervene? This proposal seems to me to require a little more explanation. If the people whom we are discussing are sitting with the full powers of the court in a particular situation, it is rather curious that they are not entitled to the appropriate description. Perhaps we may draw a parallel here. If a deputy chairman takes over from a chairman, he is appropriately described. I think that to a layman what is proposed here seems rather obscure and not very reasonable.

The Lord Chancellor

My Lords, I did not propose the amendment, but I am advised that it is totally unexceptionable, and I am also advised to accept it. Apparently it will give satisfaction to those to whom the expression "deputy circuit judge" more properly applies, and I am told that it is desired by the profession. But I regard it largely as a matter of label.

Lord Roskill

My Lords, the noble Baroness asked for a further explanation. I am not sure that I am capable of giving one. I was asked by the Lord Chief Justice to move this amendment, since he was unable to be here, and I was assured by him that it is desired by the profession and by those who have held the office of circuit judge. I am not sure that there is a complete analogy as between a chairman and a deputy chairman and a circuit judge and a deputy circuit judge, because in the one case a deputy chairman is a person who holds a recognised office, while a so-called deputy circuit judge is merely someone who temporarily has a particular status.

On Question, amendment agreed to.

Clause 33 [Powers of High Court exercisable before commencement of action]:

The Lord Chancellor moved Amendment No. 2: Page 25, line 39, leave out ("(i)").

The noble and learned Lord said: My Lords, I rise to move Amendment No. 2. With this amendment, may we consider Amendments Nos. 3, 4, 5, 6 and 7? It will be remembered that at the Report stage the noble and learned Lord, Lord Elwyn-Jones, tabled an amendment which was designed to have a result similar to—and I hope be identical with—the provisions which are contained in these linked amendments. They make parallel alterations in Clauses 33(2) and 34(2) of the Bill relating, respectively, to orders for the production of documents before the commencement of proceedings and orders for the production of documents by strangers to the proceedings. The amendments ensure that in cases where the court decides that the documents ought not to be produced to the applicant himself they will be produced in every case to his legal advisers.

I gave the noble and learned Lord an assurance at the Report stage. I hope this carries it out, although it follows the effect of the amendment he tabled rather than the words he used in the speech that he made. The difference is a small one and I think important, but of no serious controversial content. It is that the ultimate control for the order remains, in the amendments which I have moved, with the court, rather than resting with the solicitor to the party. Your Lordships will remember that both at Committee stage and on Report we discussed this at somewhat greater length, and I think it was generally agreed that there was a class of case in which it was proper to withhold, for instance, a medical report from the patient himself, though he were a party to the litigation, because it might contain a prognosis which would be detrimental to both his peace of mind and his state of health. I do not think I need say any more than that this represents the best endeavours that I can use to carry out the intention of the noble and learned Lord on Report and to fulfil my obligation to him. I beg to move.

Lord Elwyn-Jones

My Lords, I am most grateful to the noble and learned Lord for having met the point that I raised at an earlier stage of the consideration of this Bill, with strong representations from the Law Society that it should be done. The noble and learned Lord has identified the point we are after; namely, above all, to protect the position where a medical report may contain a gloomy prognosis of a terminal condition in circumstances where the doctors and all concerned might think it would be undesirable, in the course of litigation, that that should be disclosed to the party concerned. On reflection, I respectfully agree that it is right that ultimate control should remain in the court, and I am most grateful to the noble and learned Lord for the care that has been given to the point that has been raised, and for the way in which it has been dealt with.

Lord Foot

My Lords, I wonder whether I could take the opportunity to ask one fairly simple question of the noble and learned Lord. The words used here are "legal advisers". I wonder whether there is anything in this Bill which defines the meaning of the phrase "legal advisers". Whether there is or is not, does it in fact mean the person's solicitors; and, if it does mean the person's solicitors, why do we not say so? Could it in fact have a wider meaning than that, and could it embrace somebody else—as, for example, an amateur adviser, or possibly even learned counsel?

The Lord Chancellor

My Lords, this is sprung on me at slightly short notice. If I may deal with that question, I would assume that it meant the solicitors on the record and, if there were counsel instructed, also the counsel, whose advice the client and the solicitor would be expected to seek, if not actually take. I do not know whether the noble and learned Lord who sits on the Front Bench opposite has any better view than that.

Lord Elwyn-Jones

Indeed, my Lords, I have no better view than that. All I can say by way of comfort to the noble Lord, Lord Foot—a most eminent solicitor—is that this was the phraseology in the Bill as it was considered at the earliest stages, and the astute attention that the Law Society pays to legislation as it goes through the House satisfies me that there is nothing wrong with it so far as the solicitors' branch of the profession is concerned. I cannot help further than that, I am afraid.

Lord Foot

My Lords, may I have the leave of the House to say that if this is done on the recommendation of the Law Society it must necessarily be right?

On Question, amendment agreed to.

The Lord Chancellor moved Amendments Nos. 3 and 4:

Page 25, line 40, leave out ("(ii)")

Page 25, line 41, leave out from ("order") to end of line 42 and insert— ("(i) to the applicant's legal advisers; or (ii) to the applicant's legal advisers and any medical or other professional adviser of the applicant; or (iii) if the applicant has no legal adviser, to any medical or other professional adviser of the applicant.").

The noble and learned Lord said: Perhaps I may move Amendments Nos. 3 and 4 together and speak to Amendments Nos. 5, 6 and 7. They are all consequential on Amendment No. 2. I beg to move Nos. 3 and 4.

On Question, amendments agreed to.

Clause 34 [Power of High Court to order disclosure of documents, inspection of property etc. in proceedings for personal injuries or death]:

The Lord Chancellor moved Amendments Nos. 5, 6 and 7:

Page 26, line 15, leave out ("(i)")

line 16, leave out ("(ii)")

line 17, leave out from ("order") to end of line 18 and insert— ("(i) to the applicant's legal advisers; or (ii) to the applicant's legal advisers and any medical or other professional adviser of the applicant; or (iii) if the applicant has no legal adviser, to any medical or other professional adviser of the applicant.").

On Question, amendments agreed to.

Clause 68 [Exercise of High Court jurisdiction otherwise than by judges of that court]:

Lord Roskill moved Amendment No. 8: Page 46, line 29, leave out subsection (8).

The noble and learned Lord said: My Lords, this is consequential on Amendment No. 1. I beg to move.

On Question, amendment agreed to.

4.5 p.m.

Lord Roskill moved Amendment No. 9:

After Clause 143, insert the following new clause:

(" Amendment of Courts Act) 1971

. For section 24 of the Courts Act 1971 (deputy High Court and Circuit judges) there shall be substituted— Deputy Circular judges and assistant Recorders.

(1) If it appears to the Lord Chancellor that it is expedient as a temporary measure to make an appointment under this section in order to facilitate the disposal of business in the Crown Court or a county court or official referees' business in the High Court, he may—

  1. (a) appoint to be a deputy Circuit judge, during such period or on such occasions as he thinks fit, any person who has held office as a judge of the Court of Appeal or of the High Court or as a Circuit judge; or
  2. (b) appoint to be an assistant Recorder, during such period or on such occasions as he thinks fit, any barrister or solicitor of at least ten years' standing.

(2) Except as provided by subsection (3) below, during the period or on the occasions for which a deputy Circuit judge or assistant Recorder is appointed under this section he shall be treated for all purposes as, and accordingly may perform any of the functions of, a Circuit judge or a Recorder, as the case may be.

(3) A deputy Circuit judge appointed under this section shall not be treated as a Circuit judge for the purpose of any provision made by or under any enactment and relating to the appointment, retirement, removal or disqualification of Circuit judges, the tenure of office and oaths to be taken by such judges, or the remuneration, allowances or pensions of such judges; and section 21 of this Act shall not apply to an assistant Recorder appointed under this section.

(4) Notwithstanding the expiry of any period for which a person is appointed under this section a deputy Circuit judge or an assistant Recorder, he may attend at the Crown Court or a county court or, as regards any official referees' business, at the High Court for the purpose of continuing to deal with, giving judgment in, or dealing with any ancillary matter relating to, any case which may have been begun before him when sitting as a deputy Circuit judge or an assistant Recorder, and for that purpose and for the purpose of any proceedings subsequent thereon he shall be treated as a Circuit judge or a Recorder, as the case may be.

(5) There shall be paid out of money provided by Parliament to deputy Circuit judges and assistant Recorders appointed under this section such remuneration and allowances as the Lord Chancellor may, with the approval of the Minister for the Civil Service, determine.".").

The noble and learned Lord said: My Lords, I beg to move Amendment No. 9 and to speak to Amendment No. 10 at the same time. I have already explained, I am afraid at some length, the purpose of Amendment No. 9, and Amendment No. 10 is entirely consequential.

On Question, amendment agreed to.

Schedule 5 [Consequential amendments]:

Lord Roskill moved Amendment No. 10: Page 106, line 34, leave out paragraph 1.

On Question, amendment agreed to.

Schedule 7 [Repeals]:

The Lord Chancellor moved Amendment No. 11:

Page 113, line 15, at end insert—

(" 33 Hen. 8. c. 39 Crown Debts Act 1541. The whole Act.")

The noble and learned Lord said: This, my Lords, is a pure piece of statute law revision. The Crown Debts Act 1541 is to be inserted in the repeals schedule. The reason it is to be inserted in the repeals schedule is that it is spent. Owing to the industry of my staff I could give quite a lengthy and possibly quite interesting piece of research about its history and provisions, but perhaps the House will be content if I say that the case for repeal has been put to the Senior Master, the Queen's Remembrancer, the two revenue departments, the Treasury Solicitor representing all other Government departments and to those representing the Crown Estate Commissioners, the Duchy of Lancaster, the Duchy of Cornwall and the Queen's private estate. They all agree to the repeal, and since the Act is spent the Queen's formal consent to the repeal is not required. I beg to move.

Lord Elwyn-Jones

My Lords, had we "world enough, and time ", and were there not a great deal of further business before the House, I should have liked the noble and learned Lord to tickle our palates a little on the historical background to this ancient piece of legislation. I always find the repeal of Acts that have fallen into desuetude of great fascination, but I resist the temptation to press the suggestion at this stage.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 12:

Page 113, line 29, at end insert—

("14 & 15 Vict. c. 99. Evidence Act 1851. Section 6.")

The noble and learned Lord said: My Lords, I rise to move Amendment No. 12. This amendment effects another small piece of statute law revision. It repeals a provision in the Evidence Act 1851 concerning orders for the inspection of documents in the common law courts. The necessary powers are now adequately conferred by other provisions. Again, I am prepared to enlarge upon this fascinating topic, but will not do so unless pressed. I beg to move.

On Question, amendment agreed to.

Lord Roskill moved Amendments Nos. 13 and 14: Page 118, column 3, leave out from beginning of line 49 to end of line 16 on page 119. Page 119, line 51, column 3, at end insert ("Section 15.").

The noble and learned Lord said: My Lords, with your Lordships' leave, may I move both these amendments together? They are consequential upon the main amendments, to which I have already spoken.

On Question, amendments agreed to.

An amendment (privilege) made.

4.10 p.m.

The Lord Chancellor

I beg to move that the Bill do now pass, and in doing so I should like to thank all noble Lords who have helped to improve the Bill and for the kindly reception which it has received. I would particularly mention the noble and learned Lord, Lord Elwyn-Jones, and the noble Lords, Lord Mishcon and Lord Foot. Many of my noble and learned friends on the Cross-Benches have been extremely helpful at different phases of the Bill and I am grateful to them all.

Moved, That the Bill do now pass.—(The Lord Chancellor.)

Lord Elwyn-Jones

My Lords, there is no doubt that this is a useful piece of consolidation as well as of law reform. We were told early in the consideration of the Bill of the immense pressures on the courts at all levels and in particular on the Court of Appeal both criminal and civil divisions. I think the proposals in the Bill for making a fuller use of judicial manpower will be of great assistance in the administration of the courts. I have the assurance as far as the Criminal Division of the Court of Appeal is concerned that the practice always of having a Lord Justice sitting on the court will be maintained. As the noble and learned Lord, Lord Roskill, pointed out, it always has been so.

There is little doubt that the changes that are proposed, at any rate for the Civil Division of the Court of Appeal, are intended to improve the administration and the running of that division and it is very good to know that all those concerned, from the highest to the lowest level in that division, have indicated their enthusiastic support for the changes that have been introduced. These changes in the law take a long time to accomplish and I think it is right to express our gratitude also to the members of the staff of the Lord Chancellor's Office and to the draftsmen who have laboured long to achieve the result of bringing the Bill to this point of near approval in your Lordships' House.

Lord Rawlinson of Ewell

My Lords, it is obviously a very important Bill and one which should be much supported by all who practise the law, apart from those who administer it. I congratulate my noble and learned friend on his having got time out of the Government in order to be able to present this important Bill to us. There is one matter in the Bill, one change in the law, which I must confess that I approach with a certain anxiety. It is that part which provides an extra restriction on the right of a party in a claim in respect of libel to trial by jury. It was the subject of a short debate on March 2nd moved by my noble and learned friend Lord Roskill, supported by the Lord Chief Justice and accepted by the noble and learned Lord the Lord Chancellor. But the Bill now before us provides that an action for libel will be tried by jury unless the court is of the opinion that the probable length of the trial makes the action one which cannot conveniently be tried by jury. That is new. Apart from the principle, I find that I am concerned over the wording which leaves, as it does, no discretion, as I understand it, to the court and which applies the sole criterion of convenience.

There was this short debate on 2nd March when some reservations were made by the only participants who are actual practitioners of the law, the noble Lord, Lord Wigoder, on the extension into crime, and the noble Lord, Lord Mishcon, really on the substance. But the effect of the change is a further step on the path towards eliminating public participation in the administration of justice. In that respect I think it is a matter of regret. I appreciate as well as anybody in this House how immense is the burden on the public of jury service. I do not underestimate for a moment the difficulties and problems which are created for people who are drawn by lot to sit on a jury. The disruption and problems of their business life are immense. Hitherto in many criminal cases, fraud cases, other modes of trial have been canvassed—that there should be a judge sitting with assessors. But they have not yet met with approval.

The laudable purpose behind all this is to save time and cost. Time and cost, economy and convenience are of great importance in the administration of justice. They mean much, but they do not mean everything. Clause 69 reduces the probable participation of the public. I suspect that it has arisen from a particular action for defamation, then current but now concluded. There is the old adage that hard cases make had law. I hope—I say this with deep respect—that there has not been an over-hasty reaction to a unique trial. I appreciate that the amendment was moved by my noble and learned friend Lord Roskill, supported, as I have said, by the Lord Chief Justice, by the Master of the Rolls and accepted by the noble and learned Lord the Lord Chancellor—people I have known throughout my professional life and for whom I have the greatest respect. They are authorities of great distinction and wide judicial experience, and I know that they have been motivated by the desire to protect the public from a prolonged disruption of their lives if they should be selected to serve on a jury.

But I would ask these distinguished judges to consider another point of view. I cannot pretend to any judicial experience except as a recorder—not a deputy assistant, but a real recorder—of Salisbury some 20 years ago; but it is limited to that. But I have had 35 years of continual and uninterrupted practice at the Bar, the last 22 years in silk. Save for my six years as a law officer, I believe that in almost every one of those 22 years I have appeared in civil trials tried by jury. Therefore, I can claim to have seen much of the work of civil juries; that is, trial cases of libel, slander, false imprisonment, malicious prosecution, and such cases. My experience is that it is very rarely that a case is long. The Lord Chancellor's department can obtain the statistics, but my personal experience is that they are very rarely long cases. I recall one which lasted three and a half weeks. There is the occasional such case; there have been others. But they are a handful. The average case duration is usually less than one week.

Therefore, the case on which this amendment is based is unique. I am certainly not going to discuss the merits but your Lordships may or may not know that it was a case where the defendant sought, as they claimed, to expose a world-wide organisation or movement in which one side said it was of a religious nature and the other side said it was of a political nature. Once the pleadings in that case were closed its length was inevitably massive, but though it was a matter of private dispute between private rights, it was of great public importance.

I am not going into the estimate that was made or the length of time. I think there has been a misunderstanding of that. But it was a case which imposed an enormous burden on the jury, ameliorated by great efforts by the judge and the Lord Chief Justice to do everything possible for and on behalf of the people who had by chance been brought into that court. But it poses the question—and this Bill now poses the question—of what other tribunal could so authoritatively decide the issues in such a case. The decision in that case was one of 11 citizens of unknown backgrounds, unknown religious beliefs, unknown worldly or spiritual experience, and of different ages. Some were obviously younger than others. Compare that situation in a case of that kind—and many cases of libel and defamation involve political or religious matters—to trial by a single judge, with his known background, with his known experience, with his known religious persuasion, with his known age, having to give a reasoned judgment. Not that he would be—and I do not suggest it for a moment—biased by any of those matters. But that would be the position. Compare that to a jury with, as I say, their unknown background bringing in their findings. I have no doubt that certain cases are pre-eminently cases for trial by jury.

If this Bill were law then there would be no jury in that case. Obviously a case which last 100 days would not be convenient for a jury. As I understand it, there is no discretion to allow a jury and therefore it would be trial by judge alone. In my submission to this House I suggest that that is very undesirable. I think that there are some issues which it is unfair to the judges to have them decide, and it is unfair to the public to have a single judge decide an issue which involves political and religious matters such as very often arise in libel actions.

Therefore I wonder whether that is a good case on which to base a change in the law. Jury service is a public duty, a public duty which rests upon employers as well as on employees. It should be better remunerated, of course. That is the first thing that should he done. It is an infinitesimal cost and juries should be better remunerated. The participation of the public in the administration of justice is in my view paramount for the proper administration of justice.

While I repeat my personal respect for the distinguished sponsors and supporters of that part of the Bill, I say that I hope another place will look at this very carefully and very coolly. Of course there are reasons and arguments for the amendment which was put into the Bill which is here before us now. Of course they are honest, respectable and persuasive reasons motivated by the desire to relieve the burden of members of the public whose misfortune it has been to be chosen by lot to do this particular task. In other countries they used to have the draft. People were chosen by lot for the draft. That was a great misfortune. I believe that the inconvenience to individuals is overborne by the paramount interest of the public which calls in certain cases for an absolute right to a trial by jury. It is a great British liberty though it may, as I say, impose hardships. We should mitigate that hardship by providing proper recompense for persons who have been called to do their duty, but we should not in my view diminish that right. It is a right which rests not only in the parties but also on the public. Some newspapers, as has been said, believe that you should not have jury trials in libel actions. Others disagree. There is a powerful Leader in today's Times to that effect.

This Bill will go forward to another place, as of course it should. But all I seek to do is raise a voice expressing concern at one part, but not an unimportant part, of this very useful, very important measure. I urge my noble and learned friend the Lord Chancellor—and nobody is more conscious of any encroachment on public or civil rights—when the Bill goes to another place to reflect again upon the wording and the principle of what I believe to be an important change in the law, and one which I feel needs further examination.

4.24 p.m.

The Lord Chancellor

My Lords, I am sure that the whole House would wish me to congratulate my noble and learned friend on having emerged unscathed and in such good form from an experience in comparison to which the London Marathon appears to pale into insignificance. Since the case could theoretically or actually be the subject of an appeal, I may not mention it. However, I am sure that the House are delighted to see my noble and learned friend back again and will be rejoiced to hear his eloquence among us once again. I do not altogether agree with what he said. It is true that this amendment was not put down by me; it was put down by the Lord Chief Justice, moved by my noble and learned friend Lord Roskill and supported by the Master of the Rolls and I accepted it. I take full responsibility for accepting it.

Incidentally, we have had this little argument once before and I should like to remind my noble and learned friend of it. This is not the first time that I have heard this speech. I heard it first in another place. I should like to remind him of the occasion that I first heard it. It was during the Labour Government and Mr. Roy Jenkins was then the Labour Home Secretary. I was the Conservative shadow Home Secretary (if the word "shadow" could ever have applied to my somewhat robust and portly figure!). In those days, and far more serious than this, the suggestion was made by the Labour Government that majority verdicts should be the order of the day in criminal cases. I remember what the noble Lord, Lord Wigoder, said about criminal cases when we were on Report.

Both my legal colleagues—one of whom was my noble and learned friend—originally endorsed the suggestion. The other colleague was Sir John Hobson, upon whose soul may God have mercy. They both ran out on me at the last moment. I promised to deliver the goods and I did deliver the goods. I was right because no one in the world would have wanted to go back to the period in which majority verdicts were not at all possible. I shall come back—because it is extremely germane to this topic—to the reason why they would not go back. I know that the noble Lord, Lord Wigoder, will remember the case of Hain. He was acquitted. The first majority verdict was one of acquittal and so was Mr. Hain's. If he had not been acquitted—and it was quite right that he was—he would have had to stand trial again.

My noble and learned friend, quite rightly, stressed the inconvenience to the jury of sitting down for 100 days and having to decide a case. I speak of juries with the utmost respect because, although now I have not anything like the recent experience of my noble and learned friend, I have seen them over the past 50 years on a great number of cases. It is a heartening and almost humbling experience to see how earnestly they try to do the right thing. They very often come to a robust verdict which would not be the same as that of a judge, particularly in criminal cases. I am very far from speaking with disrespect for them or underrating the fact that a public duty demands that they should do the service.

However, there are one or two other things that I should like my noble and learned friend to take into account, because the inconvenience to juries—although it is terrific—is not the only factor in this matter. Just consider what would have happened in the particular case to which my noble and learned friend has referred: if only one juror fell out the defendants could have agreed to go on, but suppose a second or a third juror had fallen out on the 98th or 99th day; the parties would have had to start de novo unless they were prepared to go on with a minute jury.

That is only one of the problems. There could have been a disagreement. I am not saying that there was likely to be in the case in which my noble and learned friend was such a notable advocate. But if there had been a disagreement they would have had to start afresh and another £250,000 and another 100 days of judge-time and jury-time would have had to be thrown away before they got at any kind of result. This is not simply a question of saving the jurors a great deal of trouble. There is a very great deal more to it than that. It is a question of the efficient administration of justice, and that is what led my noble and learned friend the Lord Chief Justice to put down his amendment and the noble and learned Lord, Lord Roskill, to move it.

Moreover, I must say to my noble and learned friend that there is another factor in these very long cases which worries me a great deal. I gave the noble Lord, Lord Wigoder, an assurance on the question of criminal cases, from which I do not resile. One of the virtues of the jury is that it is a random, or more or less random, selection from the public. If you once get a case which is going to last for 100 days at least, excusal is granted very generously on business and other grounds, and you cease to have a jury which is a random selection from the public. You get a jury who are able to give a hundred days of their time, spread over much more than a hundred days in fact, because of the week-ends in between, to the total trial of the case, with the prospect of a new trial if they fall out. It may be that after the plaintiff or the defendant knows he is going to lose he thinks he need not consent to going on with 10, or whatever number it may be. You have to chance your arm on a disagreement and a misdirection, because if there has been a misdirection and it goes up to the Court of Appeal there has to be a new trial then. Where are you going to get?

Let me tell my noble and learned friend a little story. Let him remember 1966 when there were three defamation cases that I remember, which are reported in the books. They were all cases to which a jury was necessary and I think would continue to be necessary if this Bill is passed in its present form. I will refer to just one of the three—I usually cite them all because they are all very moral tales—and that was a case brought by, I think, a cosmetic surgeon for either a libel or a slander reflecting on his professional reputation. That in the end went up to the Court of Appeal three times and had to go down twice for a re-trial. Surely there must come a point when the natural conservatism of the legal profession and the perfectly legitimate prejudice in favour of juries in civil cases must give to way common sense. At an earlier stage of this Bill I said something to the noble Lord, Lord Mishcon, on the subject of common sense, and he said he was speaking for the Senate and Bar Council as well as on his own behalf. But I really do urge the profession on this—I love Conservatism with a big "C" but you can be too conservative with a small "c", and I suspect that my noble and learned friend is being a little too conservative with a small "c" on this occasion.

On Question, Bill passed, and sent to the Commons.

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