Supreme Court Bill [H.L.]

HL Deb 02 March 1981 vol 417 cc1236-72

Committee stage resumed on Amendment No. 1.

4.14 p.m.

Lord Mishcon

If we may revert from the world stage to the rather narrower conception of the Supreme Court Bill, and the even narrower one of Clause 10, the noble and learned Lord, Lord Diplock, disclosed his objective attitude to the amendment by saying that his father was a solicitor. May I say to him at once that this is well remembered with affection in my own profession. The noble and learned Lord, Lord Roskill, said that his son was a solicitor and therefore he must be objective about this. May I equally record that his son is held in great respect in my profession. But I have a double objectivity. I have a son who is a solicitor and a daughter who is a barrister, and therefore I hope that it will be assumed immediately that I too have an objectivity, although I ought to disclose that neither of them has as yet told me that he or she has an ambition even to be a circuit court judge.

May I just try to put the argument not again, because that would weary the Committee, but in some amount of perspective. There is no question of setting one branch of a very great profession, of which all of us who belong to it are proud, against another branch of that profession. It is a profession which in its joint activities serves the public very well. Many of us feel that the division that has existed is a proper division. Many of us feel that we throw up in our midst in both branches of it people who adorn the profession and who have the qualities of being good judges.

I could go off at a tangent, but your Lordships would be angry with me if I did, to discuss whether in our legal history the best advocates—and advocacy has been stressed as a great principle and as almost the foundation for a judgeship—have proved the best judges. Some of us, if we were to read the biographies of great advocates, would find that the reverse was the situation. But that is a statment which does not apply to any of the noble and learned Law Lords now present. The question is not one of advocacy. One thing the noble and learned Lord the Lord Chancellor did not mention, and perhaps it was because he felt it was inappropriate to mention it, is that some of the solicitors who are circuit judges have been sitting as deputy High Court judges despite their lack of experience of advocacy in the High Court; and they have been doing it very well and I understand to the admiration of their colleagues.

The only consideration is one expressed by my noble friend Lord Foot. We are not interested in this day and age in arguments as to whether one side of the profession sacrifices more than the other in the course of doing professional duties. The only principle we have in mind in a changing world of commercial experience, of humble goings on in homes, is who, with their legal learning, with their patience, tolerance, and fair judicial minds, are to fill the 80 puisne judgeships that have to be filled, or have to remain, or be added to in the course of time? It is in peace that I make the suggestion and certainly not in war, and I do not think it is a suggestion that needs a great deal of consideration because, as has been said, it is not a question of a right to be appointed but purely and simply the question of whether the Lord Chancellor of the time is entitled to look at a circuit court judge who is a solicitor and say that he is worthy to be put on the High Court bench.

The last thing in the world at Committee stage that I want to do—and I suspect that the noble Lord, Lord Foot, feels the same—is to test the feeling of your Lordships at this point. What I am going to ask of the noble and learned Lord, as I think I am entitled to do, is this: I do not even want to put this down at Report stage unless I find I have to as a matter of principle. This is, if I may put it in parenthesis, a Law Society considered proposal or recommendation; it is not a personal one to me. Would he in his kindness say that he would be prepared at least to discuss this matter with the professional bodies concerned between now and Report stage, to see whether it is possible for this amendment to be agreed to, so that Clause 10 will be so amended?

I ask him for no promise that there will be a positive outcome from that. Could he, with his usual courtesy, tell me first that the consultations would take place? If we can be told whether or not the Government will be prepared to accept the amendment in time to enable us to table another should we feel it appropriate to do so, I shall ask for leave to withdraw the amendment.

The Lord Chancellor

I fear that I cannot be very comforting to the noble Lord, Lord Mishcon. Unfortunately, both branches of the profession have armorialised the unfortunate Lord Chancellor and have taken exactly the opposite point of view the one to the other. I am afraid therefore that the Lord Chancellor must make up his mind what he does, and he is going to make up his mind in favour of the status quo. However, I shall make this concession to the noble Lord: I will inquire of those who advise me as to whether there is the smallest chance of getting a consensus on this point. My view is that there is none, and that is said not inadvisedly but after having made soundings in both directions.

The point I wish to emphasise is of course the service to the public, but it is a question whether 10 years' practice in the Supreme Court should be the choice of the Supreme Court judge, and in my opinion the answer to that is, yes; if people from one profession choose to take that road, transferring from one to the other, so much the better. But I do not think the road via the circuit judge is a good road unless it is preceded by the requisite experience of the Supreme Court.

That is my considered answer, but I shall in deference to what the noble Lord, Lord Mishcon, said, make further inquiries of my office. I believe however that this is a point on which the professional bodies have evinced to the unfortunate Lord Chancellor a position the one wholly inconsistent with the other, and the ground between the upper and nether millstone I intend to escape by following my own instincts.

Lord Mishcon

Possibly because I have such supreme faith in the ability of the noble and learned Lord to circumvent all difficulties, as he is prepared to have those further discussions, I beg leave at this stage to withdraw the amendment and I shall see what my position is at a later stage in the Bill.

Amendment, by leave, withdrawn.

4.23 p.m.

The Lord Chancellor moved Amendment No. 2: Page 8, line 19, leave out from ("appointed") to ("of") in line 20 and issert ("to an office mentioned in subsection (1) or as a Lord Justice of Appeal or puisne judge").

The noble and learned Lord said: This, together with Amendments Nos. 3 and 31, is designed to ensure that the Bill does not alter the existing law. The reference in subsection (4) to the appointment as a judge of the Court of Appeal is ambiguous. The expression "judge of the Court of Appeal" is used elsewhere in the Bill in the sense of covering all those listed in Clause 2(2) as well as the ordinary Lords Justices. It is too wide. It covers, for example, any person appointed as Lord Chancellor or as a Law Lord who has not previously been judge of the Court of Appeal.

The Lord Chancellor takes the judicial oath and the oath of allegiance, from custom, twice—once privately as in the Privy Council and once publicly in the Court of Appeal—and I have done so four times, so perhaps that is enough. The Law Lords take the oath of allegiance and in practice, if they previously have been judges, have already taken the judicial oath. It is thought that this does not alter the existing law but could ensure that the present practice is pursued. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 3: Page 8, line 22, leave out from (" 1868 ") to second (" the ") in line 23 and insert (" in the presence of ").

On Question, amendment agreed to.

Clause 10, as amended, agreed to.

Clauses 11 to 31 agreed to.

Clause 32 [Orders for interim payment]:

4.26 p.m.

Lord Foot moved Amendment No. 4: Page 25, line 1, leave out subsection (4).

The noble Lord said: This is a very small point which does not deserve to occupy the Committee for more than a few moments. It relates to Clause 32, which deals with the power of the High Court to order interim payments of damages or debt or other sum which a party may be liable to pay to another. If I understand subsections (4) and (5) correctly, they have the effect of making it impossible for the court to make orders for interim payments of costs.

I assume that the ordinary case where this power to make an interim payment order applies is that of a civil action in which the matter of liability is disposed of, and there is judgment on that, but the matter of quantum is still at issue. In those circumstances, as I understand it, the object of giving the court power to make an order for an interim payment is that some payment may be made of the damages, debt or otherwise to the party entitled to it while the decision about the total quantum remains open and in issue.

What is not understood about the clause as it stands—and this amendment has been suggested to me by Justice—is why in principle where there is a judgment or order for costs to be taxed and paid, there should not in suitable cases be an order for an interim payment of costs pending the taxation. It would appear to be unfair that there should be no power to make an order for an interim payment of costs on two grounds; one is that the payment of any costs is necessarily postponed until after taxation and the other is the fact that no interest can accrue on the costs until after taxation is complete. Those who advised me on this included a former senior taxation master. We have not been able to understand why costs have been excluded from the interim payment power. If the noble and learned Lord can help me on that I shall be greatly obliged. I beg to move.

The Lord Chancellor

This amendment was tabled somewhat late last week and those advising me found some difficulty in understanding its object. The principal clause to which it is an amendment, Clause 32, is, as the noble Lord said, a provision the object of which is to make interim payments to parties where either liability is not in dispute or the existence of some liability is asserted. The provision excludes the payment of costs. It does so explicitly. It does so, I should have thought, because, if your Lordships agree to Clause 51, under it the court already has complete discretion as to costs. Under the rules of the Supreme Court, it retains that discretion, subject to certain lines of guidance. So I should have thought that the exclusion of costs from Clause 32 was appropriate.

I do not want to mislead either the Committee or the noble Lord. What he said is exactly correct: that interim payments of costs are extremely unusual, and may be difficult to attain under the rules. I have known cases where such payment has been made, but not in the circumstances envisaged by Clause 32. I have known in interlocutory matters in particular the court to order the costs of a certain application, for instance, to be taxed and paid at once. That is unusual, but it is certainly within my experience that it has been done.

What is not usual, of course, is for costs in general to be paid in advance of taxation, and I should be prepared to concede to the noble Lord that not only in the case of Clause 32, where interim payments are made to the party who is entitled to payment, but in all cases of High Court litigation, the delay in the payment of costs until the taxation is concluded may, in an inflationary age, have the effect of imposing a good deal of hardship upon the profession. However, I do not think that it is at all limited to Clause 32 cases. The noble Lord, Lord Foot, has much more personal professional experience of these matters than I have, but I am advised that where a litigant is an unassisted person, the professional adviser will probably have received an advance from his client, whereas where the person is assisted the professional adviser does not receive an advance. Of course it is in the assisted case that the professional adviser may suffer the greater disadvantage in having to await taxation before he sees the payment of his costs; I quite understand that.

I must also say to the noble Lord that it is precisely for that kind of reason that I have to tell the Committee that the burden on the legal aid fund, at any rate in the early years of his proposed change, whether limited to Clause 32 cases or generally applied, would be rather unacceptably high. One of the troubles with which a Lord Chancellor is faced is that of the cascading increase in the cost of legal aid; and now that I have taken on board the hair shirt of criminal legal aid—something that the noble and learned Lord, Lord Elwyn-Jones, did not have to suffer, though I expect he anticipated it—this is becoming a great burden. In the first years of criminal legal aid the total cost was of the order of £500,000. In the current year it is estimated to total £81 million, and civil legal aid has been increasing remorselessly ever since. I am under very heavy pressure, and very legitimate pressure, to increase it in various directions. However, I am strongly dissuaded from accepting the amendment on the purely practical ground that it would give rise to hopes about the payment of legal aid prematurely before taxation—I say "prematurely" and perhaps I am begging the question, and possibly doing so unfairly; but before the conclusion of taxation—which the fund could not bear.

With regard to the technicalities, Clause 51 gives the court complete discretion as to costs, and, if thought right, rules of court under Clause 51 could achieve what the noble Lord would like. As a professional or ex-professional, in this field of work, I would fully agree to see that there is a case for it at some time. However, I do not think that this amendment will be of particular advantage, because I think that the object can be achieved by another route.

Lord Foot

Greatly to my regret I feel that the noble and learned Lord and I are at cross-purposes here, because, if I understand the matter aright, legal aid has nothing whatever to do with it. The case in which an interim payment can arise is where A is suing B, A wins the day and receives judgment on the matter of liability, and the question of quantum is perhaps left open. At that stage the court has power to make an order in favour of A against B, ordering that B shall make a payment on account of the damages which A is entitled to recover. That has nothing whatever to do with costs. But when it comes to costs, the order for an interim payment of costs would relate to the costs which were owed by B to A under the judgment. So, as I understand it, the question of any burden on the legal aid fund does not arise in any way.

With regard to the other matter that the noble and learned Lord mentioned, if one looks at Clause 51 one sees that there the whole question of costs is within the discretion of the High Court and is completely at large. Therefore, the noble and learned Lord suggests that it would be within the competence of a judge making an interim payment order to make an order for an interim payment of costs, if he thought fit. I appreciate that point. But is it not very strange that when one turns back to Clause 32 and looks at subsection (5) one finds the following provision: In this section 'interim payment ', in relation to a party to any proceedings, means a payment on account of any damages, debt or other sum (excluding any costs)…". Does not that place a limitation upon the discretion which is apparently given to the court under Clause 51? This is a point on which I am bound to say I do not feel able to speak with any competence at all.

However, I do not feel that anything would be gained by pursuing this matter further, but may I invite the noble and learned Lord to have another look at it to see whether anything that I have said is of any virtue? Subject to that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 5 not moved.]

Clause 32 agreed to.

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

On Question, Whether Clause 33 shall stand part of the Bill?

4.39 p m.

Lord Elwyn-Jones

A problem does, I think, arise on Clause 33. As your Lordships' Committee will see, Clause 33(2) of the Bill sets out the powers of the High Court exercisable before commencement of the action and it provides for the documents to be disclosed and produced. As will be seen from Clause 33(2)(b)(i), they can be produced to the applicant, or on such conditions as may be specified in the order, to any medical, legal or other professional adviser of the applicant ". Accordingly, if that provision remained, the court would be enabled to make orders, as indeed were previously made by the Court of Appeal, to the effect that the medical evidence could be disclosed only to the medical adviser, and not to either the legal adviser of the client or the client himself.

This is a matter which has given rise to some judicial difference of opinion, and not for the first time. One can readily see that there are conditions and circumstances in which much could be said for the withholding of the disclosure to the litigant himself of a medical report about him; and in one of the cases, Davidson v. Lloyd Aircraft Services, 1977 1 Weekly Law Reports 1042, the Court of Appeal confined the disclosure of medical notes to the medical adviser on the grounds that the documents might be difficult for him to interpret—he could get the help of his solicitor on that, I should have thought— secondly, might include fears about the patient's future prospects which, if disclosed to him, might cause him distress or retard his recovery"— and I see the point of that— might contain statements made by the patient or his relatives which could be embarrassing or distressing if they were disclosed, and might be of a confidential nature so that doctors might be inhibited in their own medical reports thereafter". In the McIvor case the noble and learned Lord, Lord Diplock, did not find those arguments convincing and took the view that so far as pain or embarrassment to the litigant might be concerned the solicitor could perhaps be relied upon to be an effective sieve to prevent that which could be damaging to his health, or whatever, being brought into play.

At any rate, I think this raises a matter of sufficient importance for me to invite the noble and learned Lord the Lord Chancellor to give further consideration to it. I should have thought that, first of all, the production of documents to the medical adviser alone would produce intolerable difficulties for the solicitor acting for the client, and, secondly, I should have thought that in most circumstances it would be something that should be disclosed also to the litigant himself.

The Lord Chancellor

The noble and learned Lord is of course perfectly right in what he says; it is a question of opinion. Offhand, I can conceive of no reason why what is disclosed to a doctor should not also be disclosed to a solicitor, and vice versa. But until the case of McIvor, to which the noble and learned Lord has referred—and I see that the noble and learned Lord, Lord Diplock, who was a party to that decision, is present—it was, I think, a fairly frequent practice in personal injuries litigation to make it a condition of the premature disclosure (and in Clause 33 we are talking about disclosure prior to the commencement of proceedings) that in certain cases and, in particular, where it might interfere with his recovery, the plaintiff himself should not be shown the full details of the medical report.

Sometimes it is particularly distressing to know that you are going to die very shortly and that your condition is bound to deteriorate over the months; and I think it was quite frequently the practice (the noble and learned Lord mentioned the case of Davidson, but I think that was after I had ceased to practise at the Bar, having been Lord Chancellor, and my recollection is that it was not an infrequent practice before then) for a certain limitation to be imposed. In the McIvor case the House of Lords decided that this was ultra vires if it was done; and the noble and learned Lord, Lord Diplock, said, so far as I remember, that not only was he doubtful as to the policy involved—obviously, prima facie, it is a natural right for a litigant to be shown everything that might affect his case—but even apart from his doubts about the policy the words of the statute were sufficiently clear to make the practice ultra vires, even if it was desirable. This provision has been deliberately put in—and the noble and learned Lord, Lord Elwyn-Jones, is quite right—to make it not ultra vires. He is quite right about that; and it is of course for the Committee or for your Lordships' House to say whether this is right or wrong. At one time I did rather a large business in personal injuries cases, and I should myself be sorry if the lay client was always shown everything that the doctor said about his future condition; but I realise that those who are wiser than me do not always agree with me. I do not know, really, what the Committee thinks about it, but it was done deliberately. It is not an accident; and the noble and learned Lord is quite right in thinking that it was done in order to make the words sufficiently wide to justify the withholding of a medical report from the patient.

Lord Diplock

So far as I can see, what this clause does is to give the court a discretion to make an order which in the McIvor case we came to the conclusion was ultra vires. So had the Court of Appeal of Northern Ireland, I think. Since my name has been mentioned in connection with this matter, if I were invited to express a view about this clause I would say that I think it adds a useful weapon to the armoury of the administration of justice, and I myself would support it; though whether the discretion should be frequently used is an entirely different matter.

Clause 33 agreed to.

Clauses 34 to 39 agreed to.

Clause 40 [Attachment of debts]:

On Question, Whether Clause 40 shall stand part of the Bill?

4.47 p.m.

Lord Mishcon

The sole point of my talking about Clause 40 for a moment is to see whether or not subsection (3)(b) is really required; indeed, I might almost say the whole of subsection (3). If noble Lords would be good enough to refer to Clause 40 they will see that this is the clause which repeats Section 38 of the Administration of Justice Act 1956, which enabled deposit accounts as well as current accounts in banks to be attached for the purpose of satisfying judgment debts. Building societies are now, when served with garnishee orders nisi, seeking in some cases the protection provided by Clause 40(3)(b), saying that they are banks and that they have got two or more places of business. I am wondering—and I therefore put it to the noble and learned Lord—whether he really thinks on reconsideration that he still requires subsection (3) of Clause 40 in the Bill.

The original 1956 amendment enabled a creditor to garnishee a deposit account, and since that date, as we all know, there have been radical changes in the way in which people operate accounts in banks and building societies. Today, more people are paid by cheque, and many use the Trustee Savings Bank and building societies literally as banks. The Trustee Savings Bank has emerged from a simple savings bank to become a full commercial bank, and the client of the Trustee Savings Bank can now draw cheques and obtain loans. Building societies, as we all know, have developed into High Street banks; and while at the present time they do not provide cheque books to their depositors, they will make out a cheque for a depositor who wishes to pay his rates. The position in regard to the National Savings Bank (which was formerly, of course, the Post Office Savings Bank), which also provides a number of banking services, is protected anyway by the National Savings Bank Act 1971, Section 2(1).

It seems to me that there is no reason now why an account with the Trustee Savings Bank or a building society should be protected from garnishee proceedings while an account at a bank is not. I wonder whether the noble and learned Lord the Lord Chancellor would consider whether or not in the light of what I have said subsection (3) is really necessary; and if again I have unfairly caught him by surprise I shall perfectly understand it if I merely get the reply that what I have said will be considered before Report stage.

The Lord Chancellor

I think I can satisfy the noble Lord, Lord Mishcon, to that extent. I do not think that he has unfairly caught me by surprise. It is my business to know this Bill, all 150 pages of it, backwards; and so I do not regard it as an unfair situation at all. The fact is that this has been the matter of some consultation between my department and various bodies. We have some sympathy with what the noble Lord, Lord Mishcon, has said but the points need further consideration because of the number of interests involved. Perhaps therefore I can leave it as it is at the moment and write to the noble Lord, Lord Mishcon, before Report stage if I have something new to tell him. That is the situation as of now.

Lord Mishcon

I am grateful to the noble and learned Lord.

Clause 40 agreed to.

Clauses 41 to 52 agreed to.

Clause 53 [Distribution of business between civil and criminal divisions]:

On Question, Whether Clause 53 shall stand part of the Bill?

Lord Mishcon

I wonder whether the noble and learned Lord the Lord Chancellor will be good enough to give a view, if he can today, on the possible addition to Clause 53(2) of the powers that can be exercised by the criminal division of the Court of Appeal. I say that especially because of the decision in Regina v. Smith which is also cited as Regina v. Martin. That is reported in 1974 1 All England, page 651. There, the Court of Appeal decided that it had no power to consider an appeal by a solicitor from the decision of a Crown Court judge where the judge had ordered that the solicitor pay the costs. It was also decided that the solicitor had no right of appeal to the divisional court or the Queen's Bench Division by way of case stated or for an order of certiorari. One would have thought that the position should be remedied by amendment to Clause 53(2) of the Bill to provide for the court to hear appeals where the Crown Court judge had exercised his jurisdiction to penalise a solicitor as to costs. It seems most unfair, apart from the financial sanction, because it is also very much a professional disgrace and therefore one would have thought that the Court of Criminal Appeal ought to have the right to hear an appeal from the solicitor in those circumstances and that the solicitor ought to have the right to bring it to the Court of Appeal in the criminal division.

The Lord Chancellor

I think the noble Lord has caught me this time without preparation. I think there may be something in what he says, although I doubt very much whether it ought to be a function of the Court of Appeal Criminal Division. I should have thought that he was right in what he says: that the effect of the decision in Smith was that the Court of Appeal Criminal Division had no jurisdiction in the case that he mentions. It is also clearly the case that since the Crown Court is part of the Supreme Court, it could not be the subject in the ordinary course for judicial review; but I should have thought that it was arguable that in some way or by some means the solicitor should have some chance of either appeal or review in some shape or form. If I may look at the point again and write to the noble Lord or put down an amendment on Report I should prefer to leave it like that because I have had no previous notice of this but I very much doubt whether an amendment to Clause 53 is quite what is wanted. I will see what I can do about it. I think there is something in this.

Lord Roskill

Would my noble and learned friend allow me to intervene? It would be completely wrong in my submission for this to be dealt with by way of an amendment to the 1968 Criminal Appeal Act for that body only has a right of appeal against convictions or sentences. This is in effect a disciplinary action taken by a Crown Court judge against a solicitor and therefore the right way should be that way in which disciplinary actions against solicitors are dealt with. If there is to be a special provision—and the noble Lord, Lord Mishcon, is right: There is agreement here because a solicitor is actually disciplined by a body against whom he has no right at all of appeal. Many of these matters of contempt and so on go to the Civil Division of the Court of Appeal. Saving the presence of my noble and learned friend the Master of the Rolls, I would venture the view that this ought to go to the Civil Division of the Court of Appeal as a disciplinary matter affecting solicitors and has nothing whatever to do with the Criminal Division.

Lord Denning

I remember the case. I think I dissented. It was a case where there ought to have been an appeal and an appeal to the Court of Appeal Civil Division.

Lord Mishcon

I should be more than content with any appeal to the Court of Appeal whether civil or criminal. I am grateful to the noble and learned Lords who have helped me.

Clause 53 agreed to.

Clause 54 [Court of civil division]:

The Lord Chancellor moved Amendment No. 6. Page 39, line 41, after first (" Any ") insert (" jurisdiction exercisable in any ").

The noble and learned Lord said: This amendment stands with No. 7. They are linked amendments which are designed to amplify the purpose of Clause 54(7) and to make it clear that jurisdiction in relation to matters incidental to appeals may be exercised by a single judge or by the new registrar. This is really to meet a criticism of the Bill which was made—I think, from the Cross-Benches, but certainly was made—at Second Reading. I think the phrase "tucked away" was used in relation to the powers of the registrar of civil appeals. The two amendments Nos. 6 and 7 are designed to meet that criticism.

As a result of the first half of subsection (7) of Clause 54, the part appearing at the foot of page 39 would read as follows: Any jurisdiction exercisable in any proceedings incidental to any cause or matter pending before the civil division of the Court of Appeal and not involving the determination of an appeal may if and so far as rules of court so provide, be exercised by a single judge of that court or by the registrar of civil appeals; and rules of court may provide for decisions of that registrar to be called in question in such manner as may be prescribed". The amendments also enable rules of court to provide for an appeal from the registrar's decision, probably to a single judge, in such cases as may be prescribed. This reflects the position laid down to the High Court by Clause 67(4) under which masters' decisions are usually appealable to a judge in chambers. I beg to move.

Lord Denning

I should like to support this amendment. First it is a very good thing, instead of it being tucked away in a schedule, that it should be in the Act itself. Also from the point of view of the administration of the Court of Appeal, if we can and are enabled to have many matters dealt with by a single judge—not necessarily the same one—but a single judge, it would help us to get through the work enormously. I support the amendment.

Lord Elwyn-Jones

I ventured on Second Reading to regret the fact that this important innovation was lost in the entrails of a paragraph in the schedules. It is a phrase I am quite pleased with and I repeat it. I am glad that attention has been paid to it.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 7: Page 39, line 43, leave out from ("may") to end of line 44 and insert (", if and so far as rules of court so provide, be exercised by a single judge of that court or by the registrar of civil appeals; and rules of court may provide for decisions of that registrar to be called in question in such manner as may be prescribed.").

On Question, amendment agreed to.

On Question, Whether Clause 54, as amended, shall stand part of the Bill?

Lord Mishcon

I hope that I shall not be accused of over-subtlety in bringing up a point on Clause 54 as now proposed to be amended. I am looking at subsection (3) which reads: (3)Where—

1. (a) part of any proceedings before a court has been heard by an uneven number of judges greater than three; and
2. (b) one or more members of the court are unable to continue,

the court shall remain duly constituted for the purpose of those proceedings so long as the number of members (whether even or uneven) is not reduced to less than three ". The point to which I wish to direct the Committee is the unhappy situation which arises where unfortunate litigants find themselves before a court with a case part heard and then, through some event beyond the litigants' control, the sittings are not only incomplete but are postponed and further hearings have to take place. This question has been discussed before. The Committee will very probably know that in a recent review of the matter, as I understand it, the noble and learned Lord the Lord Chancellor thought that litigants should insure against the likelihood of the death of a judge. I can only say as a practitioner that this presents problems if the learned judge is not happy to co-operate, because questions of insurance of the lives of judges are personal matters and involve questions of health, and so on.

Very often when a case is thought to be a long one insurance takes place. Even if it happens to be a case of short duration, the hardship upon the parties is one that the Committee can well understand, It is an expense which frankly is quite wrong for the litigants to have to bear. It is an accident of fate—illness, death or an unhappy event—which may occur which may make the case take the turn of an entirely new trial. It ought to be something which falls (if I may say so with great deference) upon the Lord Chancellor's Department. They may not be responsible for any act regarding this unfortunate happening, but surely it should not be the litigants who, through no fault of their own, have to bear it.

I wonder whether it would be appropriate for us at some stage of this Bill (and I raise it now possibly to save time because I want to hear the noble and learned Lord on this) to insert a clause which would indemnify a litigant in respect of costs incurred or thrown away arising out of circumstances beyond the control of the party liable to pay the costs of the proceedings—for example, the death or illness of the trial judge or the fact that the Court of Appeal have had their numbers reduced below the minimum set out—if, having heard the case, the judge is unable to deliver judgment or the Court of Appeal are in the same position.

The Lord Chancellor

I shall take on board the noble Lord's point. It is perhaps an unfair point to take in this particular connection. This is the one case where provision is made in the statute for the unhappy possibility which the noble Lord envisages. What would happen in the Moonies' case, which is now currently before the High Court, if anything happened to poor Mr. Justice Comyn after seven weeks, I do not know. This particular clause deals only with a five-seven- or nine-judge court of the Court of Appeal. This provides that in one of those unhappy events, so long as there are more than three left after the "holocaust", the court remains properly constituted. I shall take on board the noble Lord's point and let him know whether I can do anything about it, but it will not be here.

Clause 54, as amended, agreed to.

Clause 55 [Court of criminal division]:

5.7 p.m.

The Lord Chancellor moved Amendment No. 8: Page 41, line 4, after (" division ") insert (" against conviction or any such verdict or finding as is mentioned in paragraph (p)(ii) or (iii),").

The noble and learned Lord said: The Committee may care to note that there is a similar amendment in my name to Clause 141. The two amendments make identical provisions in relation to the Criminal Division of the Court of Appeal and the Courts-Martial Appeal Court respectively and give two-judge courts jurisdiction to deal with all applications for leave to appeal against sentence. Clauses 55 and 141 respectively give the two-judge court power to deal with appeals against sentence. Unfortunately, applications for leave to appeal were overlooked by the draftsman. Therefore, I think that I can fairly say that this is a drafting amendment to that extent. I beg to move.

On Question, amendment agreed to.

On Question, Whether Clause 55, as amended, shall stand part of the Bill?

Lord Elwyn-Jones

This clause effects an important change, in that it gives to a court of two judges of the Criminal Division of the Court of Appeal the power to deal with appeals against sentences. I assume that that will be the general pattern if this Bill becomes law, that normally the case will be tried by two judges. I remember being a member of the Donovan Inquiry into the Court of Appeal. Great emphasis was placed at that time, when there was a court of three to determine criminal appeals, on how important it was that in addition to the number of three there should be a Lord Justice presiding at the time.

I take it that the two judges who will determine appeals against sentence could be two puisne judges. That would be a competent court to deal with appeals against sentence. I do not think that I am very happy about that. I do not question of course the quality of the puisne judges; but I think appeals against sentence—which obviously very often raise matters of enormous importance to the appellant—are questions of public policy of a very important character indeed.

I wonder whether it would not be desirable to make a requirement that one of the two should be a Lord Justice. I do not know whether there would be enough Lord Justices available. I hope that the noble and learned Lord the Lord Chancellor will give serious thought to that. This provision as a whole, giving to two judges alone the jurisdiction to deal with appeals against sentence, will give rise to a great deal of concern among the public at large. I appreciate the log jam that has developed in the Criminal Division. I sympathise with the public purpose in trying to reduce the waiting time for appeals. That time ought to be kept within tolerable limits. I agree that at this time the waiting time has become intolerable in the larger number of cases. However, having said that, I would venture to think that the safeguard of a person of the experience and standing of the Lord Chief Justice sitting alongside a puisne judge would be desirable, having regard to this new arrangement for the hearing of appeals, particularly in connection with sentence.

The Lord Chancellor

The noble and learned Lord is in a sense pushing at an open door so far as I am concerned because it happened to me in my first term of office to be asked to agree to a court being properly constituted with either three or two, as the case might be, puisnes instead of a Lord Justice and a puisne or two puisnes. I refused to do so on the basis that that would be a reversion to the old Court of Criminal Appeal under another name and was therefore undesirable.

The noble and learned Lord will not have overlooked the fact that Section 9 of the Administration of Justice Act 1970 empowered a two-judge court to exercise the jurisdiction of the Criminal Division, subject to certain exceptions which were, first, the determination of an appeal; secondly, the determination of an application for leave to appeal to the House of Lords; and, thirdly, the refusal of an application for leave to appeal to the court unless it was an application which had already been considered and rejected by a single judge. The point there is that it is the settled practice of the court to grant leave if any one judge so decides, and these provisions ensure that every application shall be considered by a total of three judges. Thus a two-judge court cannot deal with an application for leave to appeal to the House of Lords but may otherwise deal with any application except an application for leave to appeal to the court which has not already been refused by a single judge.

Pressure on the judges of the Criminal Division—that is to say, Lords Justices who also man the Civil Division and Queen's Bench judges who take civil actions and criminal trials and also deal with divisional court business—has continued to mount. The result is that there are serious delays in the disposal of all kinds of judicial business over which they have jurisdiction. For example, in the Queen's Bench Division the average interval between setting down and hearing is 9.7 months and in the divisional court the arrears until very recently have been such that some cases have had to wait over a year or even two years to come on for a hearing, as the noble and learned Lord will know—he will have read what Lord Donaldson said the other day about the excellent efforts which have been made which have virtually wiped that off. But in the Criminal Division itself the number of cases awaiting hearing before the full court has increased and now stands at 969 as compared with 672 at the end of 1979 and 701 at the end of 1978.

In the circumstances, it is clearly necessary to make the best possible use of the time of the judges of the Criminal Division. One way of saving their time is to extend the use of two-judge courts so as to enable them to exercise jurisdiction which as the law now stands is exercisable only by three-judge courts. The obvious candidate for this is the appeal against sentence.

It is estimated that appeals against sentence constitute 41 per cent. of the business disposed of by the full court of the Criminal Division. In 1980 in the region of 900 such appeals were heard and determined by three-judge courts. The scope for saving judges' time, if such appeals could be disposed of by two-judge courts, is estimated to be about 160 judge-days, though obviously the actual saving would be less because some of the appeals against sentence would still have to come before three-judge courts. Moreover, the Bill itself provides—and this is something which I think the noble and learned Lord should bear in mind—for an appeal on which a two-judge court is evenly divided to be re-argued in front of a three-judge court. Therefore, as the noble and learned Lord does not need telling, in fact this means the appeal can be re-argued in front of a three-judge court if the two judges are equally divided, and, if the two judges agree, they would constitute a majority of any three-judge court that could be assembled. So I think there is a safeguard built in.

There is no doubt that a greater use of two-judge courts, even if it cannot effect the maximum theoretical saving of judges' time, must have a considerable effect, and the Bill accordingly provides for a two-judge court to have power to hear and determine an appeal against sentence only. An appeal against conviction, and therefore an appeal which is against both conviction and sentence, a fortiori will still require a three-judge court. There will be other savings which I should perhaps mention, namely, staff time in preparing and checking a third bundle of documents and photographic resources amounting to 20,000 to 27,000 pages per annum.

In view of the remorseless increase of crime and the undoubted increase of delay in hearing appeals against sentence, as I am sure the noble and learned Lord already knows from his own experience in the matter, letters come from prisoners almost daily to Members of Parliament, saying, "We shall have served a substantial part of our sentences before our appeal comes on". One has to deal with the matters as one finds them: and, if the cost of having a three-judge court every time for the hearing of an appeal against sentence only is to keep people whose sentence is in doubt in prison serving sentences for weeks or months longer, I am sure that as a lesser evil a two-judge court, with a provision that if the two judges differ from one another the appeal shall be re-argued, is a price worth paying.

We are not living in an ideal world but in the world which we find, and the world which I find is one in which the delays in the Court of Appeal Criminal Division are such as to justify this provision. Of course, if crime reduces in quantity and if for any reason the two-judge provision in this Bill proves unsatisfactory, it is something which can be reconsidered; but I know that the Lord Chief Justice attaches a great deal of importance to this provision and, although I share some of the noble and learned Lord's doubts and would certainly consider very seriously that one of the judges should be the Lord Chief Justice or a Lord Justice—I will certainly consider that further—I think I must stand by the provision.

Lord Elwyn-Jones

I suppose, with that consideration, that it might be possible to identify cases which might require the presence of a Lord Justice but, having said that without giving it sufficient thought, I can see the difficulties in carving out a territory which ought necessarily to have a Lord Justice. Perhaps the noble and learned Lord will consider the matter again. I cannot recollect for the moment how many Lords Justices there are and how the distribution could be extended. I am sure—

The Lord Chancellor

There are 18, are there not?

Lord Elwyn-Jones

I am sure that the Master of the Rolls will not show any enthusiasm for this suggestion that we shall require a Lord Justice to sit on a two-man court, but I am grateful that it is going to be looked at again.

Lord Roskill

May I say one thing about what my noble and learned friend Lord Elwyn-Jones has said? The present two-judge court in the Criminal Division has always had a Lord Justice presiding over it. I have done so myself on a very many occasions when I was a member of the Court of Appeal. One has suffered from time to time from a sense of acute frustration. The device of the two-judge court, if I may use that phrase, was one started by Lord Parker when he was Lord Chief Justice in order to deal with a large number of cases where the single judge had refused leave to appeal against sentence and the renewed application was really in the vast majority of cases without merit; but from time to time you get a case where the single judge may have missed a point or a new one has come up, and in those cases one wants desperately to be able to do something at that two-judge court stage, and one cannot as the law stands. Sometimes one has literally gone into the corridor, asked someone else to come in and given him 10 minutes to read the papers, in order to save time. Otherwise, the matter has to be dealt with at another time, before a differently constituted court, with the most appalling waste of [...]udge time. It is that which the Lord Chief Justice is very anxious to stop at the moment; in other words, instead of having two bites at the same cherry, having one bite at two cherries. That is what this amendment is aimed at.

As to the desirability of always having a Lord Justice, there always has been one hitherto. I did not know it was proposed that the practice should change. There never has been a statutory requirement that a Lord Justice should always preside, if the Lord Chief Justice does not preside. But, as a rule of practice, it has always been so, in order to prevent any suggestion—as my noble and learned friend will remember from his membership of the Donovan Committee—that it was not right that equals should always sit upon equals. That is what led to the introduction of Lord Justices sitting.

Lord Denning

May I just say a word, because I was very sorry when Lord Justices on the civil side were taken away so much to preside on the criminal side, even when there was a two-judge court. But, of course, we do manage it, and it works very well. I am sure that, in practice, even when it is a two-judge court in the Criminal Division, there will be a Lord Justice sitting. I do not think it needs any amendment for the purpose.

Lord Elwyn-Jones

I am very gratified and reassured by the contributions of the two noble and learned Lords who have just spoken. We must be very careful in limiting, for reasons of administrative difficulty, the facilities and rights that have previously existed to those who come before the courts. I know that you can dismiss a lot of things by calling them mere administrative difficulties. Here it is not merely administrative difficulty, but the prospect of a man spending months and months in gaol, perhaps unnecessarily. I think that what is said to be a practice ought to be spelled into this statutory provision as a statutory requirement. Perhaps we can revert to it on Report. In the meantime, perhaps the noble and learned Lord the Lord Chancellor will give it further thought.

The Lord Chancellor

I will certainly give it further thought. I very much doubt whether it is suitable as a statutory requirement. I think that the goodwill of the Lord Chief Justice and the Lord Chancellor should be a sufficient guarantee and, anyhow, it can be done by practice direction. But I would say to the noble and learned Lord that we must not just talk about administrative convenience as if the delay in hearing appeals against sentence is only a matter of administrative convenience. What I was talking about was weighing the man in prison, who is kept in prison awaiting his appeal because a Lord Justice cannot be found, or because a third judge cannot be found, and the right of the man when he does come on to have three judges listening to his case, when there is a provision for rehearing if the two judges cannot agree. So I do not think one should speak pejoratively of administrative convenience in this context.

Clause 55, as amended, agreed to.

Clauses 56 to 66 agreed to.

Clause 67 [Exercise of High Court jurisdiction otherwise than by judges of that court]:

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

Lord Mishcon

I have a very brief point. Clause 67 deals with the exercise of High Court jurisdiction otherwise than by judges of that court. If the Committee will be kind enough to refer to subsection (1)(c), it is seen that, by rules of court, jurisdiction may be exercised by masters, registrars, district registrars or—and these are the words on which I should like the Committee to concentrate—" other officers of the court." Can the Committee assume that only those officers of the court who are referred to in Schedule 2 as having appropriate legal qualifications, are intended here? If that is so, should the Bill not say so and, if not, is it not wrong?

The Lord Chancellor

I cannot find the answer in the brief, so I am afraid that I shall have to write to the noble Lord. He will see that it is simply an enabling provision for rules of court to be made in which these characters can exercise their jurisdiction and, therefore, Parliament will retain control, whatever can be said. But I will see what is really intended and write to the noble Lord.

Lord Mishcon

I am most grateful. It will save the Committee's time if I say that in other places in the Bill the words "officers of the court" are mentioned, without any reference to legal qualifications. I shall not burden the Committee with a repetition of my point each time it occurs, but possibly the noble and learned Lord would look at it from the point of view of the use of that expression throughout the Bill.

Clause 67 agreed to.

Clause 68 [Trial by jury]:

5.26 p.m.

Lord Roskill moved Amendment No. 9: Page 46, line 25, leave out (" ordered to be ").

The noble and learned Lord said: I beg to move this amendment which stands in my name and in the names of my noble and learned friends the Lord Chief Justice and the Master of the Rolls. The Lord Chief Justice asked me to express his apologies to your Lordships because he is unable to be here, but I am glad to see that what I have to say will be reinforced by my noble and learned friend the Master of the Rolls.

If this amendment to Clause 68 and the clause as it stands at the moment were to form the subject of a separate statute, it might be called the Juries Protection Act. What this amendment is designed to secure is relief for jurors from the quite intolerable burden which, from time to time, they have to put up with in civil cases in the High Court. What has been happening (I am very anxious to choose my words carefully so that no particular case can be identified) is that cases come along and an application is made—and, very often, it is a case where there is an absolutely unfettered right to trial by jury—for such a trial by jury and the order is made. An estimate is made and it may be a month or it may be six, or even eight weeks.

A jury is summoned and the jurors are told what is the likely length. They are asked whether they can manage it and they may say "No, we are very sorry but we have other commitments. May we be excused? "—and of course they are. Then what happens is that it transpires that there has been a gross mis-estimate of the length of time. There may be fault involved; there may not. There was one case not very long ago in which, after eight weeks, a jury were moved to send a protest to the judge, but the judge could do nothing about it. After the end of the case, they wrote again and said "We realise that we have got landed with this "—and they did their duty most magnificently, as juries do—" but, please, can something be done to see that no future jury gets landed in the same position? ", because they were there in the High Court for something of the order of 10 or 12 weeks, if not longer.

That is a burden which ought not in a civil case to be cast upon our fellow citizens. It may be inevitable, nowadays, in criminal cases where there is a trial by jury as of right in every trial on indictment. But it is quite unnecessary in civil cases, and the Lord Chief Justice and, I know, my noble and learned friend the Master of the Rolls are anxious that juries should not have this additional burden cast upon them. This amendment is designed to secure that there shall be an additional exception upon the absolute right to trial by jury in civil cases beyond those presently mentioned in the Bill. I beg to move.

Lord Denning

For centuries all civil cases in this country were tried by juries. In the United States, there is still, by constitution, a right to trial by jury, but we have departed from it. Indeed, 12 or 13 years ago, in an important case, we said there was no right or presumption of trial by jury in the ordinary run of civil cases, whereas previously, when I was called to the Bar, personal injury cases were mostly tried by juries. As a result of the decision 12 or 13 years ago, none is now tried by a jury and the great bulk of our civil jurisdiction is tried by judge alone, to the satisfaction of all concerned. Here we are concerned with just two or three exceptions—a charge of fraud against a party or a charge in respect of libel and slander—where there is still a right to trial by jury.

Mr. Justice Faulks' Committee on Defamation recommended that there should be no longer a right to trial by jury; it should be at the discretion of the judge whether or not a jury should be granted. I have long thought that there should be such an amendment to our law; that whether it is fraud or whether it is defamation, it should be at the discretion of the judge whether or not to grant a trial by jury. But that has not been done. There is still the right to trial by jury in the cases which I have mentioned.

In any event, please let us have an amendment to the very limited extent which is suggested here where the probable length of the trial makes the action one which cannot conveniently be tried by a jury—in other words, when it is going to be a long case which will take days, weeks or even months. It is such a burden on a jury, so unfair to them, that it seems to me to be right that the judge should have the discretion from the beginning, when he sees that happening, to say that the case should be tried by a judge alone. I support the amendment.

The Lord Chancellor

I personally accept this amendment with the greatest of pleasure. It is of course on paper an important departure. Therefore, I thought it right that it should be proposed by those who originally put it before me.

Without breaking the rules which rightly inhibit us in the discussion of matters which come before the courts, I can give the Committee some facts which illustrate the strong need that there is for this change. Your Lordships will remember that service on a jury, from which your Lordships are happily exempt, is compulsory for those who are not exempt. They can be sent to prison if they do not turn up. In January, I had a letter from the Lord Chief Justice asking me to agree to this amendment and I told him that I would, but I urged him to have it proposed from the Cross-Benches.

At the moment, a case is going on in the High Court which, when the pleadings were closed, it was estimated would take three days. Three days was the estimated length of that case. But after a bit, before the case came on, that estimate was changed to six or seven weeks. In fact, it started on 6th October of last year and it is still going on. Seventy-two witnesses were called for the plaintiff. Indeed, there were some more, I believe 90 witnesses were to be called for the defendants. So the judge had to tell the jury that instead of the seven weeks during which at the commencement of the trial they were expected to abandon all their business and do a full time job in the High Court, the likelihood was that it would possibly be until this Whitsun before they could be released from their task. They did say that they hoped that no other body of people would ever again be asked to do this.

I think I am right in saying, but I am speaking now without a note, that the maximum which I am allowed to pay by way of compensation to a jury is £14 per day for a juror's services—and of course his travelling expenses. It really is not good enough in 1981 for two parties who happen to disagree about a matter of civil litigation, whatever the virtues may be of a criminal indictment, to be able to compel 12 members of their fellow countrymen, at a maximum of £14 a day, to sit from October in one year until Whitsun in the next listening to their case. I wholeheartedly agree with the amendment and hope that the Committee will accept it.

Lord Wigoder

Might I only ask the noble and learned Lord the Lord Chancellor to make it abundantly clear that if this amendment is written into the Bill it will in no way be used as a possible precedent for suggesting in the future that therefore long criminal cases involving fraud might be dealt with by with-drawing the right to trial by jury? Those long criminal cases are a very different sort of problem. There are ways of dealing with those cases while still retaining the right to trial by jury. I am anxious that this amendment should not be misunderstood as indicating that in relation to criminal cases there is any intention whatsoever of weakening the present position.

The Lord Chancellor

All I can say is that criminal cases are based upon quite different suppositions and that I would never treat this as a precedent. That is as far as I can go.

Lord Elwyn-Jones

I am glad that those last two exchanges took place because I know that those who like to misrepresent these changes will say that this is another attack on the jury system.

Lord Mishcon

I wonder whether I may be permitted to put a contrary point of view, only so that the Committee hears one word against the amendment. If somebody were courageous enough to put down an amendment to the effect that no civil case should be tried by a jury except with the leave of the judge, who would then be expected to go into all the issues on the pleadings and to deal with the matter on the basis of justice between the parties, one of whom presumably has applied for a jury, I should be content. What makes me most unhappy is to give the right to some people and to debar others on the basis of the estimate of time that a trial may take.

There are important issues in these three cases. In the two which the noble and learned Lord the Master of the Rolls mentioned—fraud cases, libel and slander—matters of reputation are involved. What worries me very much indeed, because one comes across this in practice, is that one of the parties may be most anxious that the matter does not go before a jury but goes before a judge alone. In those cases, one has found that there have been other reasons for it: the question whether a long, protracted case might lead to a settlement. It leads to people overestimating-I am using that word advisedly and without any offence—the number of witnesses who might be called and the length of their testimony. The learned judge has to decide that issue after listening to learned counsel who are instructed by solicitors, who in turn are instructed by clients. How is the learned judge to decide at the time when he has to make an order as to whether or not there should be a jury whether the estimate given to him of a very long trial is in fact correct?

All of us in the legal profession have known learned judges who have been able to turn what was forecast to be a four week case into a three-day case because, with their natural ability, they have been able to get to the kernel of the matter. And may I whisper that within the profession there have also been known to be judges who have been able to turn what ought to have been a three-day case into a four week case. This question of the estimation of time upon which this issue depends is one which from a practical point of view is very dangerous.

As I have already said, I am putting a contrary point of view, not for the sake of putting a contrary point of view but because, as a practitioner, I happen to believe in what I am saying. I repeat: if somebody had followed the brave line of the noble and learned Lord the Master of the Rolls I should not be making this speech now. That is not, however, the amendment before the Committee.

Lord Roskill

Everyone must sympathise with what the noble Lord, Lord Mishcon, has said, but here the public interest should prevail.

On Question, amendment agreed to.

5.40 p.m.

Lord Roskill moved Amendment No. 10: Page 46, line 26, after (" opinion ") insert (" (i) ").

On Question, amendment agreed to.

Lord Roskill moved Amendment No. 11:

Page 46, line 28, at end insert ("; or (ii) that the probable length of the trial makes the action one which cannot conveniently be tried with a jury.").

On Question, amendment agreed to.

Clause 68, as amended, agreed to.

Clauses 69 to 71 agreed to.

Clause 72 [Appeals and committals for sentence]:

The Lord Chancellor moved Amendment No. 12:

Page 49, line 17, leave out from (" which ") to end of line 21 and insert—

1. (" (a) a person concerned with a decision appealed against is to be disqualified from hearing the appeal;
2. (b) a person concerned with the committal of a person to the Crown Court for sentence is to be disqualified from hearing proceedings on the committal; and
3. (c) proceedings on the hearing of an appeal or on committal to the Crown Court for sentence are to be valid not-withstanding that any person taking part in them is disqualified.").

The noble and learned Lord said: I do not think we need spend much time on this. It is basically a drafting amendment. It is clear that a magistrate should not hear an appeal from himself by sitting in the Crown Court as a Crown Court judge and that is what, unamended, the Bill would achieve. On the other hand, overlooked, I think, was the fact that he might, for all the Bill prevents it, sit on a committal from himself when a man was committed for sentence and I should have thought it was obvious that he should not be allowed to do so. I beg to move.

On Question, amendment agreed to.

Clause 72, as amended, agreed to.

Clauses 73 to 78 agreed to.

Clause 79 [Bail]:

5.43 p.m.

Lord Foot moved Amendment No. 13:

Page 52, line 7, at end insert ("; or (f) who has been refused bail by a magistrates' court and remanded in custody.").

The noble Lord said: In moving this amendment I should like to speak also to Amendment No. 14. These two amendments are concerned with the matter of the refusals of bail in magistrates' courts. It has been the case for a long time past that if anybody is refused bail and held in custody from a magistrates' court their only redress, if they are aggrieved, is to apply to a judge in chambers in the High Court for the grant of bail. The object of these amendments is, first, to allow an "appeal", if I may use that word for the moment, against such a decision in the magistrates' court to be made direct to the Crown Court and, secondly, to enable criminal legal aid to be made available to anybody who wants to make such an application.

The noble and learned Lord said about my earlier amendment that it had been set down on the Marshalled List at a late stage. I am afraid that the same applies to this amendment, and I apologise to the noble and learned Lord for that, but I hope it has not taken him entirely by surprise because the fact of the matter is that the present procedure—the only way in which one can get redress is by going to a judge in chambers—has been the cause of concern for a very long time, I think not only among solicitors but also at the Bar and certainly to the Law Society. It was several years ago that the Law Society set up a committee to investigate the workings of the application to a judge in chambers procedure, and at that time they came to the conclusion that to say the least it was highly unsatisfactory. As the noble and learned Lord may remember, it had indeed been my intention to promote a separate Bill, with the help of the Law Society, in order to deal with this very point. But when this Supreme Court Bill came up we then saw that we might achieve our whole purpose by an amendment of the kind proposed here.

Clause 79 specifies the persons to whom bail may be granted by the Crown Court and the object of Amendment No. 13 is to seek to add a further category or class of persons to that list; that is to say, persons who have been remanded by the magistrates and have been refused bail. Amendment No. 14 seeks simply to make criminal legal aid available in suitable cases to persons who want to make an application of that kind to the Crown Court.

I should like to make two observations but I will not detain your Lordships for long because, although I regard this as a very important matter I hope it is one on which the noble and learned Lord may be able to indicate that he is prepared to give it consideration. I certainly do not want to waste the time of the Committee in argument if I am indeed pushing at an open door. I do not think that anybody, least of all the noble and learned Lord, the Lord Chancellor (because I have heard him speak most eloquently on this subject, particularly when we were discussing the Bail Bill) will under-estimate the importance of applications for bail by persons who have not yet been tried and against whom not even a prima facie case has been found. No one will under-estimate the importance of such applications for bail being fully and openly and satisfactorily considered. I venture to think also that very few people—and possibly no one—would really believe that the present procedure, by which a person aggrieved can only apply to a judge in chambers, is anything like satisfactory.

If I may just explain, for the benefit of those members of the Committee who are not entirely familiar with this procedure, how the procedure of applying to a judge in chambers works. There are two forms of procedure. There is one called the Crown Office procedure, which enables a defendant who has been refused bail in the magistrates' court to go to the High Court and be represented by counsel, instructed by a solicitor. But that procedure is only used in a very small minority of cases, for the good reason that the defendant has to pay for it and it can be very expensive. It is true that theoretically civil legal aid is available for an application of that kind to the High Court, but it is almost never granted because there is an alternative procedure, which is the procedure known as the "Official Solicitor procedure". Under that Official Solicitor procedure what happens is that—and I really do not think this would be disputed—the defendant is at an almost hopeless disadvantage. First, he has to fill up, more or less unaided, a form which is put before him. Most parts of that form are purely formal but the vital question, which comes at the end and to which he is expected to frame his answer, is this: Mention any special grounds on which you think that bail should be allowed ". That assumes that this unaided applicant is going to know the sort of grounds which might affect the mind of the High Court judge before whom the matter eventually comes.

But what happens to the form when he has filled it up? It goes along to the prosecuting police and they then frame their reply and they frame their objection. Then they post all the documents on to the Official Solicitor and the Official Solicitor in due course appears before the judge with the documents. The defendant has been told on the form he filled up that the Official Solicitor will act for him if he wants him to. In point of fact, that is entirely misleading, because the Official Solicitor does not act for the applicant; he merely acts as a servant of the court in presenting the documents to the court.

In the result the defendant does not appear before the judge; he has no knowledge of the opposition that has been put forward by the police; he has no opportunity of questioning the police. And, indeed, the whole matter is decided in his absence. It is not surprising, is it, that with a procedure of that kind, according to one of the surveys which has been carried out into this matter by the Cobden Trust some years ago, only about 8 per cent. of the people who apply and use that procedure ever get any satisfaction or success?

What these amendments propose is this. The "appeal"—again I use that word in inverted commas because it is not really an appeal; it is an application, if you like—against refusal of bail should go direct to the local Crown Court, where it could be dealt with either in chambers or in open court. Secondly, legal aid should be available in appropriate cases; where the applicant comes within the terms of legal aid it should be available to him, and as a sort of quid pro quo civil legal aid should no longer be available for an application to a judge in chambers.

May I suggest that that procedure would have manifest advantages, from the point of view of the law, from the point of view of the applicant, and indeed from the point of view of the High Court, which would then be very largely relieved of these applications with which it has to deal. First of all, it would allow the defendant to instruct a solicitor both to frame the form of his application and indeed to plead for him on the hearing of the application. It would allow cross-examination of the police as to the objection which they put forward, and it would allow the whole matter to be conducted in the presence of the defendant so that he could see precisely what was going on.

It would be a very much cheaper procedure than the Crown Office procedure because when an application to go through that procedure is granted it involves very considerably more expense than would be involved in a solicitor or counsel appearing for a man before the Crown Court. So I commend these amendments to your Lordships. I hope I have not taken up too much of your Lordships' time, but I believe that this is a matter of considerable consequence, and it would be a great pity if we were to miss the opportunity presented by the vehicle of this Bill of putting right something that has been wrong for a very long time. I beg to move.

The Lord Chancellor

There is a certain amount of merit in this amendment and I have a good deal of sympathy with it, and of course it could be said by the noble Lord, Lord Foot, although he has not said it, that the Royal Commission on Legal Services made a not dissimilar recommendation from what the noble Lord has said. It is a matter which I am considering but I have to consider it in the light of the financial situation, and unfortunately there are, as I have said earlier today, very serious competing priorities for criminal legal aid. The figures have risen only in the last 12 months, in the financial year 1979–80, from £62.9 million to an estimated 1980–81 provision of £80 million. There are therefore very serious financial implications in any proposal for the increase of criminal legal aid, and I am afraid I have to look at this in the light of competing priorities. This is not, I think, a matter of the most important priority in the grant of criminal legal aid.

I do not share entirely the critical approach to the status quo which the noble Lord, Lord Foot, has made. He, I think, under-estimates the fact that magistrates are constrained by the Bail Act to grant bail except in a number of very limited sets of circumstances. The application for bail can be renewed on committal, and of course the Crown Court under criminal legal aid can entertain an application for bail at any time after committal. The situation to which the noble Lord, Lord Foot, refers arises when a person is in charge of the magistrates' court either for a summary offence, in which case the situation arises, or for an indictable offence pending committal, and that application can be renewed before the magistrates' court on a change of circumstance at any time during the time that he is in custody.

In addition to that he can make application through the Official Solicitor. I do not think that the noble Lord, Lord Foot, was quite fair to the position of the Official Solicitor in such matters. No fewer than 900 persons thought it right to take that line of approach during the past 12 months. I cannot say what proportion of them were successful or what proportion ought to have been successful, because, after all, it is only when the magistrates have refused bail that the situation can arise at all. In addition to those 900 who have approached the matter through civil legal aid, and have nothing to pay, enother 500 took the alternative course, which is to get legal assistance for a written application to the Crown Court in which the grounds on which bail is sought can be obtained from a solicitor.

It is, of course, true that the solicitor, representing the defendant who is on remand for either a summary or an indictable offence, cannot appear, as matters stand, orally in front of the Crown Court judge in chambers to make his application for bail. But I think it would be a very strange solicitor who did not in fact perfect the grounds on which the application was made, even if he had to do it for nothing—and I do not think he would have to do it for nothing because I think he could invoke the Act of 1972 in order to do it. I do not think the situation is quite as serious, therefore, as the noble Lord, Lord Foot, has stated. But I would like to say that I consider that there is merit in this amendment, that it is a matter which, given the financial constraints upon me, I should like to give effect to at some time.

Consideration is being given to the matter, although it will have to compete with other priorities and with the constraints upon me at present. I wish that I could be more sympathetic than that. I realise that there is an element of lack of sympathy in what I have said, but there is also an element of sympathy which is not the less warm for being cautiously expressed. I think that is as far as I can take it this evening.

Lord Mishcon

I wonder whether the noble and learned Lord would permit me to deal with two points that he raised in answer to the very persuasive argument of the noble Lord, Lord Foot, in support of the amendment down in his name with which he has also allowed me the privilege of associating my name. The noble and learned Lord has said that in principle he sees merit in the case, but there are two matters which he commented upon in particular. The first was the possible unfair attitude towards the Official Solicitor, approach to this matter, and the second was the question of expense.

I am sure that the noble Lord, Lord Foot, did not want to be unfair in the slightest, but there are some statistics on the Official Solicitor approach which are rather interesting. A report was published by the Cobden Trust in 1971 entitled Bail or Custody, which indicated that the success rate for bail applications through the Official Solicitor was about 8 per cent., while the success rate for applications through the Crown Office was no less than 38 per cent. I realise that figures can be misleading and cases may not be like for like, but it so happens, if one cares to listen to America for only one moment, that there was a study of the Official Solicitor procedure by the Vera Institute of Justice of New York in 1976 and the report came to a similar conclusion to that of the Bail or Custody report. I shall only quote a little from the Vera study, which said of the Official Solicitor procedure: this paper procedure, in which objections to bail … either are not or cannot be answered, in which the applicant is ignorant of the case against him, and in which no hearing permits the Judge to probe the facts and to seek conditions of bail as a non- custodial middle ground, seems likely to frustrate reasoned and fully-informed decisions. At best, the procedure for applying to the Judge in Chambers through the Official Solicitor appears suited to rectify the rare case in which an error of magisterial discretion is obvious from the barest facts. At worst, it appears a waste of time for the judges themselves, for the police who prepare the reports, and for the prisoners who apply ". I put it no higher than that there is a case for saying that it does not look as though the Official Solicitor approach has received the unqualified approval of those who have looked at it, as the most efficacious method.

Let me quickly, and lastly, refer to the question of cost. I know that the noble and learned Lord the Lord Chancellor will take it as axiomatic that, if one saves costs in other directions, it is sensible not only to look at the matter but to look at the narrow aspect of legal aid. We all appeciate the huge costs involved and the many disadvantages that I need not go into, because your Lordships have already dealt with the matter, where people are kept in prison when they could be out of prison. The saving in costs that might be effected as a result of better procedures here will obviously be of a rather substantial amount.

Finally, may I merely say that on the question of costs and the question of legal aid I cannot pretend to give the noble and learned Lord the Lord Chancellor a really sound estimate, but I can tell him of the calculations that have been done. They have been clone on the following basis. The Crown Courts in London allow costs of between £15 to £30 for a bail application. On his figure of 900 defendants in custody using the Official Solicitor procedure each year, one could imagine that at least the 900 might use this procedure. It would seem that even if it rose to a figure of 1,500 defendants who might be desirous of using the proposed procedure, and on the basis that it was £25 per application—which is what the Crown Court now allows—we would be dealing with a figure by way of legal aid well below £50,000. I should have thought that if we take that together with the question of the saving of space in our prisons and so on, it might be a worthwhile financial exercise. I merely beg the noble and learned Lord to make that financial exercise possible if he can.

The Lord Chancellor

Unfortunately I have done so and the cost that I have reached is £650,000. However, shall, of course, report what the noble Lord, Lord Mishcon, has said. Between £50,000 and £650,000 there is quite a considerable difference.

Lord Wigoder

Might I ask the noble and learned Lord the Lord Chancellor to consider the possibility that where an unrepresented defendant—someone who has not employed the services of a solicitor—wishes to make an application for bail to the Crown Court, it might be done on the basis of a legal aid certificate for counsel only? There is really no difficulty about a man being brought to court and being allotted a barrister by the court and, in the space of 10 minutes or a quarter of an hour, sorting out sufficient information to enable a perfectly adequate bail application to be made in the defendant's presence.

The Lord Chancellor

I shall take that on board too, but speaking for myself and bearing in mind that Crown Courts take place in different parts of the country, I would prefer to go the whole way with the noble Lord, Lord Foot, in principle than necessarily to follow the noble Lord about counsel only. However, I think it is a suggestion which certainly ought to be taken into account.

Lord Foot

I am a little horrified at the gross discrepancy between the calculations of the noble and learned Lord's department and the calculations that have been made by the Law Society. It is true that the Law Society's calculations were made, I think, in 1976, but I hope that inflation has not been so outrageous in the intervening period that the figure has climbed up to £650,000. I wonder whether between now and the Report stage the noble and learned Lord would allow the representatives of the Law Society to consult with his department upon the matter of cost, because I think that the Law Society might be able to make some useful suggestions on how the matter might be dealt with.

My noble friend Lord Wigoder suggested just now that we might have counsel alone and keep down the expense. Equally, we might very well allow the application to be made by a solicitor. Solicitors have the right of appeal upon guilty pleas and so on, and it would be a very simple matter to allow them to represent a defendant in these circumstances in a bail application.

There are very many ways, I would suggest, in which economies could be made and there is the following to be considered. Under the present procedures, the Crown Office procedure, the calculation is that the costs, when a person has to pay for them, amount to well over £100. One must bear in mind that those costs would not be thrown away if this procedure were adopted. I hope that the noble and learned Lord will be prepared to allow us to discuss the matter with him and with his department during the interval and I should like, if I may, to reserve the right to refer back to this matter on Report, because it certainly would not be satisfactory to think of taking a matter of this kind to a Division. In view of that, and with the leave of the Committee, I beg to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 14 not moved.]

Clause 79 agreed to.

Clauses 80 to 99 agreed to.

Clause 100 [Deputy district registrars]:

The Lord Chancellor moved Amendment No. 15: Page 63, line 36, leave out ("district") and insert ("county court").

The noble and learned Lord said: I do not think that we need spend a great deal of time on this matter, either. This amendment is designed to enable all retired county court registrars, and not just those who have been district registrars, to act as deputy district registrars in the High Court. That is simply the purpose of the amendment. If a London county court registrar retired to the country it would be convenient if he were eligible to deputise in a neigh- bouring district registry. I think that the amendment speaks on its own merits and, therefore, I beg to move.

On Question, Amendment agreed to.

Clause 100, as amended, agreed to.

Clauses 101 to 140 agreed to.

Clause 141 [Amendment of Courts-Martial (Appeals) Act 1968]:

The Lord Chancellor moved Amendment No. 16: Page 80, line 35, after ("Court") insert ("against conviction or any such finding as is mentioned in paragraph (a)(ii) or (iii),")

The noble and learned Lord said: I beg to move. I have already dealt with this amendment.

On Question, amendment agreed to.

Clause 141, as amended, agreed to.

Clause 142 agreed to.

Clause 143 [Amendment of law relating to county courts]:

6.12 p.m.

The Lord Chancellor moved Amendment No. 17: Page 82, line 11, after (" 205(3) ") insert (" and (9) ").

The noble and learned Lord said: This amendment goes with Amendment No. 43 and is purely a drafting amendment. It is designed to include Section 205(9) of the County Courts Act 1959 among the provisions which are repealed by Clause 143(2) of the Bill. As I may explain, the reason that we want to include it for repeal is that it is now spent. I beg to move.

On Question, amendment agreed to.

On Question, Whether Clause 143, as amended, shall stand part of the Bill?

Lord Elwyn-Jones

Clause 143 raises a matter to which I made reference on Second Reading; namely, the power it gives to the noble and learned Lord the Lord Chancellor to prescribe cases where an appeal is to be restricted. It may be convenient to consider the clause along with the schedule to which it relates, Schedule 3. Your Lordships will see that under the terms of Schedule 3, paragraph 8, Section 108 of the previous relevant Act is substituted by the provisions in paragraph 8 and under sub-paragraph (2) it says: The Lord Chancellor may by order prescribe classes of proceedings in which there is to be no right of appeal under this section without the leave either of the judge of the county court or of the Court of Appeal. (3) An order under subsection (2) of this section—

1. (a) may classify proceedings according to the nature of those proceedings; and
2. (b) may classify proceedings according to the amount or value of the money or other property which is the subject of those proceedings or according to other similar financial criteria;
3. (c) may provide that the order shall not apply to determinations made before such date as may be specified in the order; and
4. (d) may make different provision for different classes of proceedings ".

I do not know whether there is any precedent for this somewhat arbitrary power. Of course, it would not be exercised arbitrarily by the noble and learned Lord the Lord Chancellor; but there is no guidance as to the principles that are to apply in the requirement for different provision for different classes of proceedings to be made. One of the additional worries that one has about this is that the power to make an order under the subsection is exercisable by statutory instrument, subject to annulment only, and not to Affirmative Resolution. The right of appeal is an important right and we should think many times before, if I may say so, letting this go through as it stands.

In the Second Reading debate, I also expressed some concern about what may be regarded as a crucial test in deciding which cases should go forward to appeal; and what the amount or value of the money or other property which is the subject of those proceedings may be. There are some cases where, in the case of the putative appellant concerned, a small amount of money may be of very great importance indeed. Of course, the issue turning on an amount of money or a value of property which may be small, may also be of considerable public importance and interest. Therefore, I should like the noble and learned Lord the Lord Chancellor to express further thought on these points.

The Lord Chancellor

I think that we argued the point about the money on Second Reading. The question of the stake and whether it is right to pursue à outrance a dispute about a tiny sum of money, which may take place between relatively expensive clients, may be attractive to the legal profession, but I doubt whether it is justified in the light of the event. A great deal of one's time as counsel—and probably of the noble and learned Lord's time as counsel—has been spent in obtaining the disapprobation of one's clients by pointing out that, even if they win, they will be out of pocket. This is also true of the time and trouble of the court. If, of course, a general point of importance is involved, I hardly think that the leave of the county court judge and of the Court of Appeal would, alike, be refused.

Of course, the schedule relates to cases where it can only preclude an appeal if both are refused. If either is granted, the appeal in civil proceedings would be allowed. I do not feel as doubtful about this as the noble and learned Lord. The march of business in the civil courts has reached a stage when delay is becoming almost tantamount to a denial of justice. As lone as I and my successors submit to parliamentary control in these matters, as the schedule provides, I do not think that any harm is done.

I know that those who are responsible—that is to say, the judiciary—attach very great importance to these provisions. I am sure that very careful note will be taken of what the noble and learned Lord has said about his misgivings, both by my department and by the judiciary. I shall consider the matter further; but I know that the judiciary do attach very great importance to this particular provision and, therefore, I cannot hold out very great hopes that a different decision will be reached.

Clause 143, as amended, agreed to.

Remaining clauses agreed to.

Schedules 1 and 2 agreed to.

Schedule 3 [Amendments of County Courts Act 1959]:

The Lord Chancellor moved Amendment No. 18: Page 91, line 4, leave out ("a direction") and insert ("an authorisation").

The noble and learned Lord said: I apologise for the rather formidable appearance of the amendments to Schedule 3, which appear in my name. They are almost all of a drafting character, and I shall try to pick out the one or two which are not. The object of most of them is to prepare the County Courts Act for consolidation. They are amendments designed to pave the way for consolidation, and No. 18 is one of them. It is a drafting amendment to correct the provision which is to be inserted as the new Section 22(3) of the County Courts Act 1959. I hope that the Committee will accept this in the spirit in which it is offered. I beg to move.

On Queston, amendment agreed to.

The Lord Chancellor moved Amendment No. 19: Page 91, line 41, at end insert—

(" 3. In section 56 (Admiralty jurisdiction) after subsection (7) insert— (7A) No county court shall have jurisdiction to determine any claim or question certified by the Secretary of State to be a claim or question which, under the Rhine Navigation Convention, falls to be determined in accordance with the provisions of that Convention; and any proceedings to enforce such a claim which are commenced in a county court shall be set aside. (7B) In subsection (7A) above "the Rhine Navigation Convention" means the Convention of the 7th October 1868 as revised by any subsequent Convention.".").

The noble and learned Lord said: This amendment goes with Amendment No. 34 to Schedule 7. This also is drafting for the purpose I have indicated. I beg to move.

On Question, amendment agreed to.

6.21 p.m.

The Lord Chancellor moved Amendment No. 20:

Page 92, line 50, at end insert— ("(11) Where an action is transferred to a county court under section 75A of this Act, any vessel or other property which has been arrested in the action before the transfer shall, not-withstanding the transfer, remain in the custody of the Admiralty Marshal who shall, subject to any directions of the High Court, comply with any orders made by the county court with respect to that vessel or property.").

The noble and learned Lord said: This is not purely drafting although it is partly drafting. To understand it one needs to take Amendments Nos. 20, 21, 33, 36, 37, 38 and 39 together. The object of these amendments is to repeal no fewer than 13 clauses of the County Courts Act 1959 and to re-enact them in a new and simplified form. It deals with the transfer from the county court to the high court of certain actions which are considered more suitable for the high court, and the transfer from the high court to the county court actions which are considered to be more suitable for the county court owing to the fact that they are within county court jurisdiction, or for other similar reasons.

The new and potentially controversial feature in these amendments is that, in place of the originating application depending solely upon the initiative of one or other of the parties, the novel feature is that the court may come to the conclusion of its own motion that transfer is desirable in either direction. Personally, I favour it, but I should be wrong if I described that as a mere drafting amendment, because it is not. I beg to move.

Lord Elwyn-Jones

Presumably the parties themselves could apply for such a transfer if they wanted to?

The Lord Chancellor

Yes.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 21:

Page 93, line 15, at end insert— ("5A. After section 75 insert—

Transfer of proceedings from High Court to country court. 75A.—(1) At any stage in any proceedings to which this section applies, the High Court may, in accordance with rules of the Supreme Court, either of its own motion or on the application of any party to the proceedings, order the transfer of the whole or any part of the proceedings to a county court if—

1. (a) the parties consent to the transfer; or
2. (b) the High Court is satisfied—
1. (i) that, after allowance has been made for any payment, set-off or other amount admitted to be due, the amount remaining in dispute in respect of the claim is within the monetary limit of the jurisdiction of the county court; or
2. (ii) that the amount recoverable in respect of the claim is likely to be within the monetary limit of the jurisdiction of the county court; or
3. (iii) in the case of proceedings not involving an unliquidated claim, that the subject matter of the proceedings is or is likely to be within the limits of the jurisdiction of the county court; or
3. (c) where only a counterclaim remains in dispute, the High Court considers that the amount recoverable in respect of the counterclaim is likely to he within the monetary limit of the jurisdiction of the county court; or
4. (d) the High Court considers that the proceedings are not likely to raise any important question of law or fact and are suitable for determination by a county court.

(2) Subject to subsection (3) of this section, this section applies to all proceedings commenced in the High Court which a county court would, apart from any limitation by reason of amount or value or annual value, have jurisdiction to hear and determine if commenced in that court. (3) This section does not apply to the following proceedings, namely—

1. (a) matrimonial causes;
2. (b) applications under the Guardianship of Minors Act 1971: and
3. (c) applications under the Children Act 1975.

(4) Proceedings transferred under this section shall be transferred to such county court as the High Court considers to be convenient to the parties. (5) Where proceedings are transferred to a county court under this section, the county court shall have jurisdiction—

1. (a) to hear and determine those proceedings; and
2. (b) to award any relief, including any amount of damages, which could have been awarded by the High Court.

Transfer of proceedings from country court to High Court. 75B.—(1) At any stage in any proceedings to which this section applies, the High Court, on the application of any party to the proceedings, may order the transfer of the whole or any part of the proceedings to the High Court, if the High Court thinks it desirable that the proceedings should be heard and determined in the High Court. (2) At any stage in any proceedings to which this section applies, the county court may, either of its own motion or on the application of any party to the proceedings, order the transfer of the whole or any part of the proceedings to the High Court if—

1. (a) the court considers that some important question of law or fact is likely to arise; or
2. (b) the court considers that one or other of the parties is likely to be entitled in respect of a claim or counterclaim to an amount exceeding the amount recoverable in the county court; or
3. (c) any counterclaim or set-off and counterclaim of a defendant involves matters beyond the jurisdiction of the county court.

(3) Where—

1. (a) the county court has ordered that the proceedings on a counterclaim or set-off and counterclaim be transferred to the High Court, but the proceedings on the plaintiff's claim and the defence other than any set-off are heard and determined in the county court; and
2. (b) judgment on the claim is given for the plaintiff, execution of the judgment shall, unless the High Court at any time otherwise orders, be stayed until the proceedings transferred to the High Court have been concluded.

(4) This section applies to all proceedings commenced in a county court or transferred to a county court under section 75A of this Act, other than—

1. (a) matrimonial causes;
2. (b) applications under the Guardianship of Minors Act 1971; and
3. (c) applications under the Children Act 1975.".").

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 22: Page 94, line 21, after first ("to") insert ("6 and 8 and").

The noble and learned Lord said: This is drafting, but not part of the series that we have just dealt with. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 23: Page 94, line 23, leave out ("document") and insert ("enactment").

The noble and learned Lord said: This is drafting. It goes with Amendment No. 48. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 24: Page 94, line 25, leave out ("7 and Case") and insert ("6 and").

The noble and learned Lord said: This is consequential. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 25: Page 94, line 39, at end insert— ("10A. In section 124 (goods which may be seized) after subsection (1) insert— (1A) Any reference to the goods of an execution debtor in this Part of this Act includes a reference to anything else of his that may be lawfully seized in execution.".

10B. Before section 134 insert—

Effects of warrants of execution. 133A.—(1) Subject—

1. (a) to subsection (2) of this section; and
2. (b) to section 138(1A) of this Act,

a warrant of execution against goods issued from a county court shall bind the property in the goods of the execution debtor as from the time at which application for the warrant was made to the registrar of the county court. (2) Such a warrant shall not prejudice the title to any goods of the execution debtor acquired by a person in good faith and for valuable consideration unless he had, at the time when he acquired his title—

1. (a) notice that an application for the issue of a warrant of execution against the goods of the execution debtor had been made to the registrar of a county court and that the warrant issued on the application either—
1. (i) remained unexecuted in the hands of the registrar of the court from which it was issued; or
2. (ii) had been sent for execution to, and received by, the registrar of another county court, and remained unexecuted in the hands of the registrar of that court; or
2. (b) notice that a writ of fieri facias or other writ of execution by virtue of which the goods of the execution debtor might be seized or attached had been delivered to and remained unexecuted in the hands of the sheriff.

(3) For the better manifestation of the time mentioned in subsection (1) of this section, it shall be the duty of the registrar (without fee) on application for a warrant of execution being made to him to endorse on its back the hour, day, month and year when he received the application. (4) For the purposes of this section—

1. (a) "property" means the general property in goods, and not merely a special property;
2. (b) "sheriff" includes any officer charged with the enforcement of a writ of execution; and
3. (c) a thing shall be treated as done in good faith if it is in fact done honestly, whether it is done negligently or not".

10C. In section 135 (sale of goods where claim made therein)—

1. (a) in subsection (3), for "in" substitute "Subject to subsection (4) of this section, in"; and
2. (b) add after that subsection:—

• "(4) The goods shall not be sold if the registrar decides that, in all the circumstances, the decision of the judge on the claim made to or in respect of them ought to be awaited.".

10D. In section 138 (execution out of jurisdiction of court) insert after subsection (1):— (1A) The original warrant shall bind the property in goods of the execution debtor which are within the jurisdiction of the court to which it is sent as from the time when it is received by the registrar of that court. (1B) For the better manifestation of the time mentioned in subsection (1A) of this section, it shall be the duty of the registrar of the court to which the warrant is sent (without fee) on receipt of the warrant to endorse on its back the hour, day, month and year when he received it".

10E. After section 138 insert— Information as to writs and warrants of execution. 138A.—(1) A sheriff shall on demand inform the registrar of a county court, by writing signed by any clerk in the office of the under-sheriff of the precise time of the delivery to him of a writ against the goods of any person issued from the High Court, and a bailiff of a county court shall on demand show his warrant to any sheriff's officer. (2) Any writing purporting to be signed as mentioned in subsection (1) of this section and the endorsement on any such warrant shall respectively be sufficient justification to any registrar or sheriff acting on it.".").

The noble and learned Lord said: This also is drafting. It should be read with Amendments Nos. 32, 41 and 44. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 26: Page 95, line 5, leave out ("10") and insert ("11").

The noble and learned Lord said: This also is drafting to correct an oversight. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 27:

Page 95, line 14, at end insert— ("14. In section 201 (interpretation) after the definition of "officer" insert— part-time registrar" and "part-time assistant registrar" have the meanings assigned to them by section 22(3) of this Act;").

The noble and learned Lord said: This, also, is drafting and should be read with Amendment No. 42. I beg to move.

On Question, amendment agreed to.

Schedule 3, as amended, agreed to.

Schedule 4 agreed to.

Schedule 5 [Consequential amendments]:

The Lord Chancellor moved Amendment No. 28: Page 96, line 11, at end insert—

("SMALL DWELLINGS ACQUISITION ACT 1899

(c. 44)

For section 6(5) substitute— (5) Where the local authority are entitled under this Act to take possession of a house, possession may be recovered in a county court, whatever the annual value of the house for rating.".").

The noble and learned Lord said: This is in Schedule 5. It is to be read with Amendment No. 37, which is in Schedule 7. The purpose of the amendment is to incorporate the provision in Section 48(2) of the County Courts Act as a textual amendment in the earlier Act which it seeks to amend. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 29: Page 104, line 6, leave out ("24") and insert ("34").

The noble and learned Lord said: This is to correct an error. Paragraph 1 of the amendment's Judicial Pensions Act 1981 should substitute a new subsection (2) in Section 34 of that Act instead of in Section 24. The amendment puts this right. I beg to move.

On Question, amendment agreed to.

Schedule 5, as amended, agreed to.

Schedule 6 [Transitional provisions and savings]:

The Lord Chancellor moved Amendment No. 30: Page 104, line 35, at end insert—

("Continuance in office of Vice-Chancellor

. On and after the date of the commencement of this Act the person who immediately before that date is Vice-Chancellor by nomination under section 5 of the Administration of Justice Act 1970 shall be deemed to have been appointed as from that date to the office of Vice-Chancellor under section 10(1) and to have duly taken the oaths required by section 10(4).").

The noble and learned Lord said: This is technical. It makes a transitional provision whereby the present Vice-Chancellor, when the Bill comes into force, will automatically become the new style Vice-Chancellor without the need to be appointed as such or to take afresh the prescribed oaths. I beg to move.

On Question, amendment agreed to.

Schedule 6, as amended, agreed to.

Schedule 7 [Repeals]:

The Lord Chancellor moved Amendment No. 31:

Page 107, line 25, at end insert—

("31 & 32 Vict. c. 72.

Promissory Oaths Act 1868

In Part II of the Schedule, the entries relating to the Lord Chief Justice and the Master of the Rolls.").

The noble and learned Lord said: This has already been dealt with in a paving amendment. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 32: Page 107, line 37, column 3, leave out from ("26") to end of line 40.

The noble and learned Lord said: This has also been dealt with, and is consequential. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 33:

Page 108, line 22, at end insert—

("10 & 11 Geo. 6. c. 44.

Crown Proceedings Act 1947.

In section 20(2), paragraph (b) of the proviso.").

The noble and learned Lord said: This is also consequential. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 34: Page 108, line 31, column 3, leave out from beginning to ("II") in line 39 and insert ("Parts I and").

The noble and learned Lord said: This is equally consequential. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 35:

Page 108, line 47, colume 3, at end insert—

("In section 39(1)(c), the word "seduction.").

The noble and learned Lord said: The purpose of this amendment is to delete a reference in Section 39 of the County Courts Act 1959 to a form of action which can no longer be maintained. Formerly an action could be brought in tort for the loss of services caused by the seduction of a parent's child. Such causes of action were abolished by the Law Reform (Miscellaneous Provisions) Act 1970. It is highly improbable that any actions for seduction are now outstanding. I beg to move.

On Question, amendment agreed to.

6.30 p.m.

The Lord Chancellor moved Amendment No. 36:

Page 108, leave out lines 48 to 51 and insert—

("Sections 43 to 45.").

The noble and learned Lord said: This amendment is consequential.

The Deputy Chairman of Committees (Lord Alport)

I understand that, in addition to Amendment No. 36, reference has already been made to Amendments Nos. 37, 38 and 39. With the permission of the Committee, I will put those en bloc

The Lord Chancellor moved Amendments Nos. 37 to 39:

Page 108, line 55, leave out from beginning to end of page 109, line 9, and insert—

	("Section 48(2).
	Sections 49 and 50.
	Section 51A(4).
	Section 54.
	Sections 58 and 59.").

Page 109, leave out lines 15 to 22 and insert—

	("Section 63.
	Section 65.
	Section 67.").

leave out lines 42 to 47 and insert—

("Section 115.").

On Question, amendments agreed to.

The Lord Chancellor moved Amendment No. 40:

Page 109, line 53, at end insert—

("Section 118.").

The noble and learned Lord said: This amendment repeals Section 118 of the County Courts Act 1959 relating to mandamus. Section 118 restates the present law as to mandamus to require a judge or officer of the county court to perform an act. The section is now unnecessary in view of Clause 21(1) of the Bill and therefore may safely be repealed.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 41:

Page 109, line 54, column 3, at end insert—

	("In section 120, in subsections (1) and (2), the words "and chattels".
	In section 124(1), the words "or chattels" and "and chattels".
	In section 130(1), the words "chattels or effects".
	In section 131(1), the words "chattels or effects".
	Section 134.
	In section 136(1), the words "or chattels".
	In section 138, in subsection (1), the words "and chattels", in both places where they occur and in subsection (3), the words "or chattels".").

The noble and learned Lord said: This amendment is consequential and drafting.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 42:

Page 110, line 3, column 3, at end insert—

("In section 201, the definitions of "whole-time registrar" and "whole-time assistant registrar".").

The noble and learned Lord said: This amendment is consequential. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 43: Page 110, line 5, column 3, after ("205(3)") insert ("and (9)").

The noble and learned Lord said: This also is consequential.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 44: Page 110, line 38, leave out ("(1)(b)").

The noble and learned Lord said: This amendment is drafting and consequential.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 45:

Page 110, line 46, at end insert—

("1967 c. 56.

Matrimonial Causes Act 1967.

Section 6.").

The noble and learned Lord said: This repeal is consequential upon Schedule 3(9) to the Bill which repeals Section 109 of the County Courts Act 1959. Section 6 of the Matrimonial Causes Act 1967 amends Section 109 and is accordingly no longer necessary.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 46:

Page 113, leave out lines 31 to 34 and insert—

("(c) subsection (7).").

The noble and learned Lord said: The purpose of this amendment is to extend the repeal effected in Section 16(7) of the Administration of Justice Act 1973 to include the repeal of the whole subsection. The provisions which relate to county court registrars are therefore affected and Section 16(7) is now spent.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 47:

Page 113, line 35, column 3, at end insert—

("In Schedule 2, paragraphs (a) and (b) of Part II.").

The noble and learned Lord said: This is consequential on the amendments introducing the new provisions for the transfer of proceedings to which I have already made reference.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 48:

Page 114, line 15, at end insert—

("1980 c. 51.

Housing Act 1980.

In Schedule 25, paragraph 10.").

The noble and learned Lord said: This amendment is consequential. I beg to move.

On Question, amendment agreed to.

Schedule 7, as amended, agreed to.

House resumed: Bill reported with amendments.