HL Deb 26 March 1981 vol 418 cc1296-341

4.20 p.m.

Report received.

Clause 4 [The High Court]:

The Lord Chancellor moved Amendment No. 1: Page 3, line 12, leave out ("seventy-four") and insert ("eighty").

The noble and learned Lord said: My Lords, I adumbrated the fact that I was about to move an amendment in this sense at the time when I moved the Motion increasing the maximum number of High Court judges from 75 to 77 and I gave in broad detail my reasons for doing so. It is manifest to me, and I believe it will be manifest to any others who are at all cognisant of the present state of the courts, that an increase in the maximum number of High Court judges is desirable, although of course it would not be my intention to use in the near future the power which I would be given were the amendment accepted. To fill the remaining three places I should have to go through the very strict disciplines of the Treasury and other persons who put constraints on me, and properly so, in the public interest.

I am convinced that this power is desirable. The pressure of business rises remorselessly. In the Crown Court last year almost 56,000 cases were committed for trial; on top of that there were about 15,000 committals for sentence, and in addition there were the appeals to the Crown Court from the decisions of courts of summary jurisdiction. There was a slight remission after the noble and learned Lord, Lord Elwyn-Jones, and the previous Administration put into effect, at any rate in part, the findings of the James Committee, but the figures rose remorselessly again thereafter.

The civil business of the High Court which has to be attended to is rising again very fast. In 1980, for instance, there were 27 per cent. more Queen's Bench proceedings commenced than in 1979, and that will give rise to a similar increase, though a very much smaller absolute number, of hearings and judgments in due course.

The work of the courts is carried on in part by deputy judges, both deputy High Court and deputy circuit judges, and by recorders who are part-time judges. This has given rise to some, I think on the whole legitimate, complaint in that when parties come, especially for civil business, to have a case tried in the High Court, they rather expect to have a High Court judge to try it. I think those criticisms can be overdone, and speaking simply as Lord Chancellor I would say that the use of part-time judges is, or has been in my experience—and perhaps the noble and learned Lord will confirm this—of very great assistance in making permanent judicial appointments because they gain experience and one gets experience of them. None the less, the situation is unsatisfactory at the moment and the pressure of work is constantly rising.

It will be—again, as I think I adumbrated on the Motion—a deliberate act of policy so far as I am concerned to switch back to a certain extent the amount of Crown Court work which will be tried by High Court judges as distinct from circuit judges, because the present system of banding different classes of offence for different classes of judge, although on the whole it works very well, is not really adequate to deal with the really difficult and complex long frauds which are now coming before the Crown Courts, and for which judges with both criminal and commercial experience are essential.

I would say in passing that on the Motion I wrongly gave the impression to at least one circuit judge, who is trying a complex matter of importance at one of the Crown Courts, that I was referring when I gave instances to a matter which is still sub judice before him. Of course, I would have been entitled to because this is legislation, but I was referring to quite a different set of proceedings which had in fact concluded, and I feel I should make that absolutely plain.

To give some indication of the kind of thing I have in mind, I take first of all the number of Crown Court days sat on crime by High Court judges. Of the total volume in 1972, 10 years ago, 10.3 per cent. of cases came before High Court judges. The present figure is under 5 per cent. (it is 4.9 per cent.); and equally, to put it another way, the number of High Court judge days sat on crime has correspondingly declined from nearly 35 per cent. in 1972 (34.8 per cent. was the exact figure) to 25.6 per cent. at the present time.

I am sure that if Crown Court business is to be dealt with adequately, it is essential that High Court judges must be asked to sit a larger number of such days in the Crown Court, not only to deal with the band one crime—which is for their decision partly because of the importance of the type of offence, as for instance murder—but also to deal with long and complicated questions perhaps involving matters of commercial law and accounts which have to be explained to juries, and which require judges of the very highest calibre.

I am sure I have made out a case for a new statutory maximum number to be inserted in place of the old figure. It was 75 (or 74 and the Vice-Chancellor). Because of the Motion we passed the other day it now stands at 77; and I am now asking that it be made 80. I hope the House will think this a reasonable request and will agree that it is the right way of handling a difficult problem. It gives me a certain amount of headroom and, as I say, the situation now is that I have no immediate appointment in mind. However, should Parliament be good enough to give me these powers, I am sure they will be used in due course.

To correct a rather extraordinary article in The Times the other day, I would point out that there is in fact no shortage of candidates for judicial appointment at the top of the Bar. It is really a remarkable tribute to the Bar that there is no shortage of barristers who are willing to take High Court judgeships, despite the very considerable financial loss to which they are subjected by doing so. I have been enormously impressed in this, my second term of office, by the high standard of the top of the Bar and I should like to pay my tribute to them. However, I wish to correct a statement that appeared in a very well-known newspaper to the effect that advocates with very little experience of advocacy were frequently appointed to the High Court Bench. That is absolutely untrue. I have had experience of making judicial appointments going back to 1970, and of the appointments made by the noble and learned Lord, Lord Elwyn-Jones, which were very favourably received, if he will allow me to say so, and so I have taken a very close interest in this matter. That statement is wholly incorrect. No one who has not long experience of High Court advocacy is appointed to the High Court Bench. Having said that, I hope that I have said enough at any rate to establish a prima facie case. I beg to move.

4.31 p.m.

Lord Elwyn-Jones

My Lords, we covered this ground to some extent when we recently debated an order to increase the number of puisne judges of the High Court from 75 to 77, and the noble and learned Lord the Lord Chancellor, then forewarned that, like Oliver, he might ask for more. He has done so now, at this convenient opportunity. It is a sad fact that there has been more than one form of inflation, as the noble and learned Lord said; and the inflation of work in both the criminal and civil courts caused me very great anxiety when I was in office, and it still does. The need to appoint more judges has become inescapable, and I agree that since there is no likelihood in the foreseeable future that the upward trend would be held, it is convenient from a parliamentary point of view, and from the point of view of the Lord Chancellor's Department, that the required power should be available without the necessity of legislation.

I am sure that the noble and learned Lord will not cease to continue the efforts to reduce the time taken in litigation in both the criminal and civil courts. It really is astonishing how much time is taken. I am sorry to confess—since I was not able to do a great deal about it myself—that the time taken statistically in the hearing and trial of cases has increased, and is increasing, whereas it ought at least to be held, if not diminished. Perhaps this is a subject for debate on another occasion, but I mention it merely en passant because I know that I shall be striking a sympathetic note with the noble and learned Lord the Lord Chancellor. Perhaps at some time the House will have an opportunity to discuss what might be done about the problem. I should add that not only the judiciary, but also the legal profession itself—both the Bar Council and the Law Society—are applying their minds to this question, and one would hope for some result.

I wonder why the civil business is increasing so substantially? It was keeping fairly steady in my time. I am not blaming the change of Government for this situation, I hasten to add, willing, as I am, on every occasion to seize every opportunity to do so. But if the noble and learned Lord is able to throw any light on this point, I at any rate should be greatly interested. I consider that what is proposed here is a sensible power to seek from the House, and I support it.

Lord Mancroft

My Lords, as an ordinary Back-Bencher and a former member of the Bar (a long time ago) may I endorse what the noble and learned Lord, Lord Elwyn-Jones, has just said about the length of time that some cases are taking. There are complicated cases which cannot be adjudicated in an afternoon, but when one gets cases going on for three or four months, dealing with what appears to the man in the street to be quite humble, not very important matters—though of course they are important for the people concerned—that is not only bad for the parties concerned and for the administration of justice, but it brings justice into disrepute.

When he sees a case going on with jurymen and counsel occupied for months on end, the man—or woman—in the street is undoubtedly at a disadvantage when asked to judge the prestige of British law and British judicial administration. Such a man wonders why on earth distinguished Lord Chancellors have not done a great deal about it some time ago. I know the answer, and Lord Chancellors know the answer, but the man in the street does not, and I do not think that it does the administration of justice any good when cases involving comparatively trivial matters go on for months and months. I hope that the noble and learned Lord on the Woolsack, who is well aware of this fact, will one day find time to solve the problem, though I know that it is not an easy one.

Lord Elwyn-Jones

My Lords, may I put just one question to the noble Lord? He has been brave enough and bold enough to say that he knows the answer to the problem. I should have been very glad to hear it.

Lord Mancroft

My Lords, the noble and learned Lord has misunderstood me. I said that I did not know the answer. I said that perhaps the Lord Chancellor knows the answer; but I do not know it.

Lord Elwyn-Jones

My Lords, I thought that the noble Lord said the opposite to that; that is why I was waiting impatiently to know the answer.

Lord Hale

My Lords, I had not intended to intervene and I have not brought with me the appropriate reference, but in view of what the noble Lord has just said, may I supplement his question with a very brief reference to a case that was reported in The Times on 12th January? It concerned a charge of conspiracy to defraud, and The Times stated—it might have been a misprint—that the opening speech lasted 71 days and that counsel for the defence complained that when they asked to be supplied with the necessary documents to enable them to complete their defence, prosecuting counsel had referred them to his forthcoming opening speech, which he had not then delivered and which, as I say, The Times said lasted 71 days. The whole case took 90 days. The point involved appeared to be a very simple one, on a question of fact. It was a question of whether people who handled very large sums of money with some lack of care were guilty of a moral failure or were guilty of a crime. At the end of the case, after an eight-day summing up, according to The Times, the jury found the three accused persons guilty, and two of them were sentenced to terms of imprisonment of five years and four years. An appeal was expedited, on no doubt excellent grounds, and the Court of Appeal quashed the conviction. I sympathise with the judge in the case because he had been inadequately informed.

The two appellate judges—judges of undoubted ability and experience—frankly expressed their regret at having come to the inevitable conclusion, without hesitation, that a conviction could not stand; and the convictions were quashed. There is no criticism whatsoever of the appellate court, which acted with promptitude and in accordance with an imperative duty. But is not some inquiry necessary when we get to that state, and if so, by whom?

4.40 p.m.

Lord Mishcon

My Lords, I hope to set an example to the legal profession—with the humility with which I speak I dare not say "an example to learned judges"—in that I shall certainly not take even 71 minutes in dealing with the amendment.

I am perfectly sure that the House will welcome the recommendation of the noble and learned Lord that there should be an increase to the number that he has mentioned of High Court judges. I was wondering how I could possibly introduce, with your Lordships' forbearance, the view that because of the necessity to see that the best possible appointments were made, that side of the legal profession to which I have the honour to belong should not be excluded when they reach the position of circuit judges. That was an amendment that I put down on the last occasion and then withdrew because the noble and learned Lord was kind enough to say that he would have certain consultations within his department, although he held certain views about the retention of the status quo.

Then the noble and learned Lord, with his usual kindness, gave me the opening by himself referring to an article which appeared in The Times and which was upon that very issue. It was extremely good of him; and I do not intend to follow his argument with The Times, except that I know he will not mind my saying on this occasion that although he implied last time that prior consultations and discussions had not taken place between the Bar and the Law Society, and that this made the amendment a little of a disadvantage to the good relationships between the two sides of the profession, he was subsequently kind enough to write to me to say that he was under some misapprehension when he made that remark because prior discussions had taken place. I want to take this opportunity to make that clear, and I know the noble and learned Lord well enough to know that he will possibly make a few remarks of his own in answer to me in order to make that position clear.

My Lords, I say only this further. I do not intend to move any amendment today which will deal with these judges possibly coming from the ranks of solicitors when they become circuit judges, because I think that further discussions have got to be held, whether with the Law Society and myself or between the two branches of the profession. I thought it far better, therefore, not to put that amendment down again, but to leave it to another place to deal with it when our Bill goes there.

Lord Denning

My Lords, I hope your Lordships will agree to the addition of four more High Court judges. I should like to say how much I agree that many cases today take far too long—and what is the cause? Part of it is due to the availability of legal aid. It is also due to counsel being far too prolix. It is also due to the judges not taking sufficient control and being too polite, and letting them go on for ever. It is also due to the great mass of paper, photography and the like with which the courts have to deal. All these accumulate together and make our cases far too long, particularly cases of trial by jury. As the noble Lord, Lord Mancroft, said, they take far too long, both in the civil courts now and in the criminal courts. I do not know the remedy. Perhaps, as Lord Mancroft said, the Lord Chancellor does. At all events, we ought to have these extra High Court judges.

The Lord Chancellor

My Lords, I should like to thank the noble Lords who have taken part in this debate, including the noble and learned Lord the Master of the Rolls, who we see here all too seldom because of his busy life. If I may pick out some of the points which have been made, let me first deal with the speech by the noble Lord, Lord Mishcon. I did make further inquiries after the Committee stage, and I gathered that the Bar and the solicitors' profession did have discussions, as he said, but as they saw after a very short time that there was not the smallest chance of their agreeing, they agreed to differ and parted their several ways. At least, that is my impression.

I am afraid I remain impenitent on the subject of the High Court. I am bound to say that practice in the High Court, which I suppose was my principal stamping ground professionally, depends on knowledge of High Court practice, which is both complex and difficult, and I cannot see the smallest possibility of appointing to the High Court bench anybody who had not got, not 10 but probably more like 20 or 25 years of experience of High Court practice, both pleading and advocacy—and in the present situation that means members of the Bar.

As I pointed out, and as I may be pointing out in connection with an amendment or two which the noble Lord, Lord Mishcon, has down at a later stage, the functions of a barrister and a solicitor are different and complementary so far as these matters are concerned. I am quite convinced that if a solicitor feels that his role is in advocacy, he should follow the path taken by the noble and learned Lord, Lord Widgery, and change over to the Bar. Then he will have 10 years' experience at the High Court, and will stand a very good chance of being Lord Chief Justice. At any rate, this is what happened to Lord Widgery, and I recommend that course to solicitors who want to practise in the High Court.

I now return, if I may, to the noble and learned Lord, Lord Elwyn-Jones. Why, he asks, is the volume of work in civil litigation increasing? I do not know, but I will tell him what my master said when I ceased to be a pupil—and that was the late Theo Matthew. He said that I would notice over the years that whenever there is a change in economic climate, whether it is improving or whether it is going down, the number of Queen's Bench writs (not necessarily the number of Queen's Bench trials, but at any rate the number of Queen's Bench writs) will very largely increase, because if the prices are going up very fast the vendor tends to break his contract, and if they are going down very fast then it is the purchaser. I may have got it the wrong way round, but a lot of cases are started because people break contracts of sale, and when there is a change of price one party or the other tends to break it.

I suppose that the number of personal injuries cases also varies to a great extent, so far as motor car offences are concerned with the volume of traffic on the roads and the quality of the roads, which does not seem to me to improve day by day; and the number of employers' liability cases, of course, depends on the number of industrial accidents. I do not think I could tell the noble and learned Lord more than that, which is not based on knowledge but on surmise to some extent, about the volume of litigation.

Now, why does civil litigation take longer? That, again, I think, is due to the same kind of factor which applies also in criminal cases. There is no doubt that advocacy is becoming more prolix. I cannot necessarily explain why that is so. When I went to the Bar I was taught that if you put your case succinctly, concisely and clearly, you were more likely to win it. Unhappily, I discovered as time went on that there were advocates who managed to wear down the court by sheer repetition, and that they would win their case against me, so I became much more repetitious as time went on. So whether the judges are wise to allow themselves to be got around in this way, I do not know.

In the criminal field, which is rather important from this point of view, there is no doubt to my mind that the quality of the summing-up has gone down since I first went to the Bar. The noble and learned Lord, Lord Diplock, who I think I see there on the Cross-Benches, and I sat on an Appellate Committee of this House and gave judgment last week. It was a case, said the noble and learned Lord, Lord Diplock, in his excellent judgement, which would have taken, I think, half a day when he was first at the Bar. It in fact ran on from, I think it was, a Thursday to the Friday and the Monday, and the summing-up started on the Tuesday morning. The jury came back somewhere about half-past three with a majority vote on the Tuesday afternoon. The Court of Appeal quashed the conviction on the basis that by that time they were so bemused they did not quite know what "recklessness" meant—a word which, I may say, has been in the English language since the time of the Venerable Bede.

I would say that there is a great deal that the professional has got to remember, recall and recover in the way of conciseness, incisiveness and decisiveness, but the judges must give a lead. It is no good reciting in a ritual way whole passages from your notebook. The business of a judge in summing up to a jury is not to give a lecture on philosophy or to give a circular tour round a particular area of the law, but to tailor-make a summing-up so that the jury will know the points of primary fact on which it has to make up its mind and the inference which legitimately can be drawn according to the various options it has under the evidence. If the judge would take a little more time preparing his summing-up, then advocates might take a leaf from his book. I have forgotten which noble Lord it was; but it was a noble Lord in this debate, who was right when he said that the courts should control the prolixity of advocates, the interminable and repetitious cross-examination and the enormous length of speeches; and this is something which would make a significant contribution to the shortness of cases, criminal and civil. On the other hand, one must remember that litigants have a right to their day in court, they have a right to be heard, to think and to know that they have had a fair crack of the whip from both their own counsel and the opponents and the judge. It is not altogether easy.

I should like to make one or two general observations. My department and I are busy with the profession in trying to work out an interlocutary procedure tied to legal aid in criminal cases where the points can be identified in advance, the necessary admissions made, the witnesses released who do not give tendentious evidence and in short that people should know before entering the court on trial what the points are that they are going to dispute about. We are making a little more progress in that. The idea behind it is to see whether we cannot slightly tilt the legal aid which covers 90 per cent. of the cases in the Crown Courts now so that there is more remuneration for preparation and identification of issues and perhaps not quite so much on the length of the trial itself. Whether that will ultimately come to fruition, I cannot say.

I think that covers the very friendly reception that this amendment has had. Perhaps I should have added in answer to my noble friend Lord Mancroft that I think there has been a tendency by the prosecution to overload cases in recent Crown Court cases. I know that my right honourable and learned friend the Attorney-General is well seized of the point but you do not want to put in 26 distinct damnations, one sure, if others fail. You want to keep down the counts of an indictment and reduce to a minimum the number of defendants to the really bad offenders. That, too, will save a great deal of time for if they are not there they will not be allowed defending counsel; so that there will be only two or three counsel for the defence. I have said all I can. I thank the House kindly for the friendly reception this amendment has had. I beg to move.

On Question, amendment agreed to.

4.55 p.m.

Lord Mishcon moved Amendment No. 2: After Clause 16, insert the following new clause:


. An appeal shall lie to the civil division of the Court of Appeal from an order of the Crown Court ordering a solicitor to pay all or any part of the costs of any proceedings.").

The noble Lord said: My Lords, as the House will appreciate the amendment asks for a right of appeal to the Civil Division of the Court of Appeal from an order of the Crown Courtordering a solicitor to pay all or any part of the costs of any proceedings. I am going to try to abridge my address to your Lordships because I had the pleasure of dealing with the matter on Clause stand part at the Committee stage. Those of your Lordships who were present then will remember that I dealt with a case which had caused a great amount of injustice—I think I might be entitled to call it a terrible case—which has found its way into our Law Reports. It is the case of Regina v. Smith, otherwise cited as Regina v. Martin. It is reported at 1974 1 All England Law Reports, page 651, when it came before the Court of Appeal.

I am somewhat heartened by seeing at least one beloved figure in this House today who, as Master of the Rolls dealt with that appeal. I must be particularly careful to see that I quote him precisely; otherwise I shall be very properly castigated. It is far better possibly, instead, of trying to paraphrase to read shortly what the judgment was and then only refer briefly to what the noble and learned Lord the Master of the Rolls and Lord Justice Megaw and Sir Eric Sachs said at the time. First, what was the judgment. I am reading from page 651: The Crown Court had as full and ample a jurisdiction over solicitors as the High Court had and could, therefore, order a solicitor, as an officer of the court, personally to pay costs occasioned by his negligence … The circuit judge had acted wrongly"— Here I must paraphrase and, with the mischief that I have learned from the noble and learned Lord the Lord Chancellor, say that my inquiries so far show that the learned circuit judge had come from the Bar and not from my side of the profession— in making the order since he had failed to give the appellants the opportunity of being heard…Accordingly, if there were jurisdiction to do so"— I am omitting a few words— the order made by the judge should be set aside… The Civil Division of the Court of Appeal, however, had no jurisdiction to entertain an appeal against the judge's order. The court's jurisdiction was entirely statutory and there was no provision by statutute for any appeal from the Crown Court, except for an appeal by the accused to the criminal division against conviction. Accordingly, the appeal would be dismissed". That was dealt with by the noble and learned Lord the Master of the Rolls in the following terms: In my opinion the circuit judge (sitting in the Crown Court to try a case on indictment) had jurisdiction to order the solicitors to pay the costs personally; but there is no procedure by which the solicitors can challenge the order in any higher court. This seems to me very unfortunate but we can, I think, do something to remedy the injustice. We can express our views on the matter in the hope that what we say may be heeded by those concerned".

If I may end the quotation there, the noble and learned Lord the Master of the Rolls—and I want to be quite fair and clear about this—was referring to those who might try to get the costs out of the unfortunate firm of solicitors. But I should like to be able to interpret his words as meaning that those concerned with legislation in the future and able to deal with this matter might be able to take advantage of that opportunity at some future date. And, my Lords, we have that opportunity now. The noble and learned Lord, Lord Megaw, said: On the unchallenged evidence, the appellants have a real and substantial grievance". And Sir Eric Sachs, who was sitting in the Court of Appeal that day, had words of a similar kind to utter. Those were the three judges in the Court of Appeal. Your Lordships may wonder why this situation has arisen. It is because the Crown Courts were set up under an Act of 1971 and this may be the first available opportunity, the first convenient opportunity, of dealing with this injustice.

All that one is asking for is that those who are professionally concerned in a case and who act negligently should without any doubt at all face whatever penalty quite properly a court may deem fit to administer. I am sure that I do not have to expatiate on the theme to your Lordships that to have an order to pay costs personally in regard to proceedings is more than a slight upon anybody practising the legal profession. In a local practice it can be penal in the extreme especially when reported in the local press.

To have no right of appeal in this type of case must seem to your Lordships, as it does to me and the Law Society, to be a grave injustice. All that this amendment asks for—and I ask for your Lordships' support—is that there should be a right of appeal to the civil division in the Court of Appeal in such a case. The noble and learned Lord the Lord Chancellor said, with his usual courtesy, that he would look into this matter. Indeed, he was kind enough to say at the Committee stage that it seemed as though there was more than something to look into as there might well be an injustice in a case of this kind. I am paraphrasing his remarks.

As one would expect, he has been courteous enough to write to me and to say in the course of his remarks that, while there might be a grievance, he feels that possibly this is not the appropriate time or stage to deal with the matter. I hope that I shall be able to answer that point if he seeks to make it today. For the moment, I leave it with your Lordships in the confident hope that he will take this opportunity to put what the Master of the Rolls and his learned colleagues in this case thought to be a grave injustice; the negation of the right to appeal in a matter of this kind. I beg to move.

Lord Denning

My Lords, I should like to support this amendment. I remember the case well: a solicitor had been ordered by a circuit judge to pay the costs. He was alleged to be negligent. But the solicitor had not been given a proper chance to be heard in his own defence so clearly there ought to have been an appeal and the order should be overruled. But unfortunately the court held that there was no such power of appeal at all. Well, my Lords, there ought to be. I am only too glad to support Lord Mishcon's amendment to give an appeal to such a disgrace to the law.

Lord Diplock

My Lords, in the constitution of Trinidad and Tobago there is written on fundamental rights a case exactly like this. It came before the Privy Council from Trinidad and Tobago where exactly this happened. A person had been punished by the court without being given an opportunity to speak in his defence. We held in the Privy Council that that was a breach of a fundamental right and we held that he was entitled to redress from the state. There is clearly in this case a lacuna in our law. Whether this particular amendment is the best way of curing it, I do not know; but it certainly ought to be cured.

5.4 p.m.

The Lord Chancellor

My Lords, the noble Lord, Lord Mishcon, is perfectly right. I said—and I say again—I am quite sure that there is something that ought to be done in this matter. I doubt—for reasons that I am about to give—whether this particular amend- ment will do the trick or do the trick adequately. There are rather more difficulties in the way of it than appear at first sight. I was very grateful to the noble and learned Lord, Lord Diplock, for reminding the House of the case of Maharaj v. The Attorney-General of Trinidad and Tobago, which arrived before the Privy Council on at least two separate occasions, where something like this happened. It was rather different in some ways because the unfortunate advocate was sent to goal and not simply made to pay the costs.

Curiously enough, that case had flitted across my mind as I heard the noble Lord, Lord Mishcon, recite the judgments in the case which came before the Court of Appeal here. It was Martin or some such name as that. I am not at all sure that the right remedy may not be something by way of judicial review rather than appeal. The difficulties at the moment in the way—and I shall enumerate them because I should like to take this amendment back and think about it further, possibly in consultation with the Law Society—are as follows. There is no doubt that the jurisdiction to make a solicitor pay the costs arises from the fact that he is an officer of the court, and the court has an inherent jurisdiction to deal with its own officers. The cases in which the court does so are happily very rare. But that is how it arises. A typical case where it might happen is where a solicitor fails to turn up at all or fails to instruct counsel with the result that the costs of a day's hearing are thrown away. There can be other cases of professional incompetence where it is appropriate. I should think it is appropriate very seldom indeed because anybody who has been engaged in criminal litigation knows how easy it is for things to go wrong.

Having said that, what redress ought to be given? Of course, the alternative to the solicitor paying the costs is either that the prosecution pay the costs, the defence pay the costs or the Legal Aid Fund pays the costs. Who are to be the parties if you go by way of appeal to the Court of Appeal? The prosecution is hardly a party. The defendants, who would be the other alternative, are not parties effectively if they are legally aided. The Legal Aid Fund I think would have to be the alternative party and would have to argue the case in the Court of Appeal. One must have a clear mind as to what the remedy is that one is going to provide for the solicitor.

I fully agree with the noble Lord, Lord Mishcon, that first of all some redress ought to be open to him, and it is not enough to say that it could be referred to the disciplinary committee of the Law Society, which is one suggestion that I have heard, or the Taxing Master. I think on the whole a judicial redress of some kind is one which alone will satisfy the Law Society. I cannot make any definite promises, but I am on the noble Lord's side and I should like to find a way out.

If the noble Lord will take this amendment away for today I shall try and ask my office to get in touch with the Law Society and hold further discussions—possibly under my charimanship or the chairmanship of a high official in my office—and see whether we can hammer out a solution. This Bill has to go to the Commons and if we can find an agreed solution I should be very much happier than if either this amendment were rejected or if it were carried against what my present advice from my officials has been. Having said that, I wonder whether we could not come to terms and settle this case if we can.

Lord Mishcon

I would be churlish to refuse an offer of this kind. I understand the offer to be—and the noble and learned Lord will correct me if I am wrong—that he finds right on this side; he agrees with the principle of the amendment but thinks there should be further discussions as to the way in which either an appeal or a review should be dealt with. With that in mind, he would be happy to see that members of his department have consultations with the Law Society with even the possibility—which I know would be so much welcomed—that he himself might preside at some stage of those deliberations. If I have rightly interpreted the noble and learned Lord, I am more than happy to withdraw the amendment at this stage.

Amendment, by leave, withdrawn.

Clause 20 [Admiralty jurisdiction of High Court]:

5.10 p.m.

The Lord Chancellor moved Amendment No. 3: Page 15, line 32, leave out from ("wages") to end of line 37.

The noble and learned Lord said: This amendment goes with Amendment No. 35, which is consequential. It is simply to correct a drafting oversight. The amendment repeals some words which have nothing to apply to because of the repeal a few years ago of some provisions in the Merchant Shipping Acts of 1894 and 1906. I beg to move.

On Question, amendment agreed to.

Clause 21 [Mode of exercise of Admiralty jurisdiction]:

The Lord Chancellor moved Amendment No. 4:

Page 17, line 23, at end insert— ("Provided that if the claim in question arose before the commencement of this Act, an action in rem shall not be brought against that ship unless, at the time when the action is brought, that ship is beneficially owned as respects all the shares therein by the person who would be liable on the claim in an action in personam.").

The noble and learned Lord said: The actual terms of this amendment are probably uncontroversial since the objective is to remove an element of retrospectivity in the provisions of Clause 21 dealing with the Admiralty action in rem; but I happen to have had correspondence with my noble and learned friend Lord Diplock on the underlying policy of this amendment. He has been in touch with the General Council of Shipping, the British Maritime Law Association and the P and I Clubs. He wrote to me the other day about it. I must say, with a note of plaintiveness, that these very distinguished bodies had our consultative documents last May and only saw fit to utter a note of complaint about the Bill last week. If they could have broken into a gentle trot a little earlier I think it would have been better for them and easier for me.

The rules of this House being flexible, I did take the liberty to suggest to my noble and learned friend Lord Diplock that he should put their case, using this amendment (which really has not a great deal to do with what he wants to say) as a peg on which to hang the hats of his friends and clients. I hope your Lordships will find that convenient. Having said that, may I now move my own amendment formally. I beg to move.

Lord Diplock

The noble and learned Lord the Lord Chancellor has been good enough to let me take this occasion to apologise on my own behalf as well as on behalf of the General Council of British Shipping, the P and I Clubs (that is, the Protection and Indemnity Clubs) which take care of the liability insurance for shipping in the greater part of the world as well as in connection with British shipping, and the British Maritime Law Association, of which at one time I was president and which represents all the maritime interests in this country: shippers, shipowners, insurers and the like.

I ought at the Committee stage to have spotted what appears somewhat coyly in subsection (3) of Clause 21. When I say "somewhat coyly", the reference to it in the Explanatory and Financial Memorandum says this: In Clause 21 the law governing the High Court's Admiralty jurisdiction to entertain actions in rem against ships has been restated to take account of recent decisions, and rights to start proceedings in rem against sea-going ships are extended up to the limits provided for in the Brussels Arrest Convention…". I had not appreciated that "to take account of recent decisions" was intended to include overruling them; nor did I realise that in what is primarily a Bill to consolidate procedural matters a serious and important change in substantive law was slipping through—not only a change in substantive law, but also a change in what has hitherto, so far as I know, been the commercial policy of the United Kingdom in relation to the subject matter of this clause. It is, I fear, a quite esoteric subject matter, which is no doubt why it managed to slip past so many people until this very late stage; and I was approached only last Monday by a deputation from the three important representative bodies to which I have referred and for the first time spotted for myself what was happening.

Perhaps I should explain the situation. I will do it as shortly as I can. Under Admiralty jurisdiction, claims against the owner of a ship are enforceable against the ship owned by him or a sister ship which is also owned by him; and when I say "enforceable against the ship", it is the action in rem. It means that the creditor can arrest the ship and have it sold by the court in order to provide the funds to meet his claim. The selling by the court is really in theory. In practice what happens is that it is released upon security provided by the P and I Club—a fund from which sufficient is taken to meet the claim of the claimant who has put through the operation of arrest. It has always been one of the principles of Admiralty law in this country that once the ship has been sold to a new owner the vessel is no longer arrestable for the claims against the previous owner of the ship. But there have been by maritime law, which has gone on for centuries, six exceptions, six kinds of claims, of which only five now continue to exist; six kinds of claims in which the ship can be arrested and sold or security provided notwithstanding that it has changed in ownership since the claim was made and the present owner never has been liable for the claim personally.

The five exceptions with a maritime lien—and a maritime lien represents a secret charge upon the ship because the buyer in good faith may know nothing of it and there is no way he can discover it, and the British policy up till now, or certainly up to two or three years ago, when I ceased to be president of the British Maritime Law Association, was to keep to a minimum the maritime liens which had this effect of a secret charge and to oppose any extension of it. I have voiced that policy in various meetings of the International Maritime Committee, and it is the explanation why this country refused to ratify either of the conventions about maritime liens and mortgages not only in 1926, which is a long time ago, but in 1967, when was concerned with the negotiations about it.

I, personally, am not opposed to some extension of maritime liens. I think particularly of ship repairers, and those who have provided what is necessary for the operation of the ship. There are a few countries which recognise a very extensive number of maritime liens, but the majority of countries, although they recognise more than this country does, nevertheless do not recognise the whole number of liens which are now set out in Clause 20(2). France and Belgium do. To take three examples—and I have no doubt that there are many more—the Federal Republic of Germany, Holland and Denmark do not recognise as maritime liens claims in respect of cargo and claims in respect of charter parties. Those form paragraphs (g) and (h) of Clause 20(2).

These claims for cargo losses or damage—claims under charter parties—represent ordinary, simple contract debts. The effect of Clause 21(3), as it stands at present, is to convert these into secret charges, lasting six years and thus, possibly, through more than one change of ownership of the vessel, which may be very large indeed. Compared with other maritime liens, whose duration is generally short—one year or, possibly, only one voyage—these will, as I say, continue, unless the subsection is amended, to last six years.

It was suggested that it would be possible to deal with this by a purchaser of a ship taking an indemnity from the previous owner, from the vendor, and covering by insurance the possibility that the indemnity would not be met. It is not practicable to obtain insurance against that kind of risk. So far as Lloyds and ordinary insurance is concerned, it is an insurance against a financial risk which is not, in practice, insurable. So far as the P and I clubs are concerned, it is not practicable for them to insure that.

I venture to suggest that a Bill of this kind, which is concerned with jurisdiction and with practice and procedure, is no place in which to make so fundamental an alteration in the substantive law and, without close discussion and consideration, to make a change in what, hitherto, has been the commercial policy of this country in this field. I would invite the noble and learned Lord the Lord Chancellor to add to his proviso, which is the amendment that we are debating at the moment, a provision that claims under paragraphs (g) and (h) of Clause 20(2), whether the claim arose before or after the passing of the Act, shall not be brought against that ship unless, at the time when the action is brought, the ship is beneficially owned as respects all the shares therein by the person who would be liable under the claim on the action in rem.

I was too late to put down that amendment for the Report stage, but the noble and learned Lord the Lord Chancellor was kind enough to let me make the kind of speech which I would have made if I had been in time to do it. I would invite him to consider very carefully—and perhaps to discuss the matter with representatives of those bodies to which I have referred—whether it is possible to put down an amendment to this effect at the Third Reading.

5.27 p.m.

The Lord Chancellor

My Lords, I hope it is clear from what my noble and learned friend has said that this is a somewhat technical matter. He has no reason to apologise personally, although I still think that there was enough in the Bill to have put what I might represent as his clients on notice that this particular change was being made. They are among the most respectable bodies in the Kingdom, and they are universally admired as adding to the lustre of British maritime commercial law.

As the House knows, my noble and learned friend is not merely one of the most knowledgeable persons in this branch of the law in this kindgom, but is also an authority of international reputation. Therefore, what he says has to be taken with a very great seriousness and I do so take it. I must point out that in, I think, 1959 we ratified the Brussels Convention, which was dated 1952, following the passage of the Administration of Justice Act 1956. Our law does not yet conform with the Brussels Convention and the object of this clause is to make it do so. I add, again somewhat plaintively, that Scottish law does conform with the Brussels Convention. Therefore this clause, as it stands, may not be quite so bad as it is represented.

But I understand the point which is made by my noble and learned friend. He points out that there is a strong case for excluding cargo claims and charter party claims under paragraphs (g) and (h) of Clause 20(2) from the benefit of the action in rem against a ship after a change of ownership. He also points out that they are only simple contract claims and, in most Continental countries which are parties to the Brussels Convention, they do not have the benefit of maritime liens. This is clearly something which must be discussed and I take my noble and learned friend's point. If those by whom he has been asked to speak will get in touch with my office, I have officials who can deal with them on more or less equal terms—which I doubt if I can—and I hope that we can arrive at an accommodation, if not at Third Reading, perhaps as the Bill goes through another place. With that, I hope that my own amendment, which is the peg upon which this discussion has been hung, may be passed.

On Question, amendment agreed to.

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

5.30 p.m.

Lord Elwyn-Jones moved Amendment No. 5:

Page 25, line 40, leave out sub-paragraph (ii) and insert— ("(ii) on such conditions as may be specified in the order, to any professional adviser of the applicant and to his solicitor").

The noble and learned Lord said: My Lords, this amendment, or an amendment to similar effect, was discussed at the Committee stage. The House will observe that in Clause 33 there is power in the High Court to order parties with documents in their possession to include among the documents that can be ordered for production, on such conditions as may be specified in the order, those of any medical, legal or other professional adviser of the applicant. That would seem to contemplate a situation where the court could order, say in a running down action, the production of a medical report on the condition of the plaintiff to be provided by the doctor alone without the participation of the solicitor for the parties in those proceedings.

The view has been put very strongly to me by The Law Society, and I agree with it, that the result of the clause as it stands would be to imperil the relationship between the client and his solicitor, between the client and the doctor and the whole relationship between doctor, solicitor and client. I think that it would be liable to create considerable difficulties.

It seems to me that the better course would be for the question whether the plaintiff should see the medical report to be left to the discretion of the solicitor. If it contained some dreadful statement about the terminal nature of the illness or condition of the plaintiff which, in the opinion of the doctor, would limit even further the contemplated life of the plaintiff, it would be proper in those circumstances for the solicitor, with the approval of the doctor, to withhold either the whole or part of the medical report.

The point is fairly simple. The noble and learned Lord the Lord Chancellor did not wholly accept it on the last occasion, but it may be that further reflection will make him think that this is a reasonably sensible proposal. I beg to move.

The Lord Chancellor

My Lords, as the noble and learned Lord has said, we discussed this matter in Committee. I do not think that there is any very great difference of principle between us. We both recognise that there are cases where a medical report of one kind or another cannot be shown to the patient simply because he is a claimant. I tend to agree with the noble and learned Lord that the principle underlying his amendment—that in any case the solicitor, if there is one, should be shown it, in addition to his doctor—is probably sound.

I am advised that the drafting is not quite right. For example, by speaking of production to any professional adviser of the applicant and to his solicitor there is a suggestion that the solicitor is not himself a professional adviser. Secondly, the production to some other professional adviser in addition is, as it is drafted now, a condition precedent to an order in favour of the solicitor, whereas there may be cases in which production to the solicitor alone might be the appropriate course, depending on the nature of the documents in question.

Finally, the draft as it is at the moment does not deal with the case when the claimant has not got a solicitor. That is a small minority of cases nowadays, but they still exist. The best thing I can do is to suggest that I should accept this amendment in principle but not as it is now drafted, and see whether or not, again in conjunction with The Law Society, we are able to arrive at amendments which can be proposed formally at Third Reading, if agreed.

Lord Elwyn-Jones

My Lords, in the light of that kindly and helpful observation of the noble and learned Lord the Lord Chancellor, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

[Amendment No. 6 not moved.]

Clause 40 [Attachment of debts]:

Lord Elwyn-Jones moved Amendment No. 7: Page 30, line 2, after ("bank") insert ("or in a deposit or redeemable share account in a building society").

The noble and learned Lord said: My Lords, temporarily my noble friend Lord Mishcon is absent. I am not so fully seized of the matter which is the subject of the amendment as he is. I look in vain at the portals of the Chamber to see whether he is about to appear to give us words of wisdom about it. As I understand it, representations have been made by the various financial bodies concerned to my noble friend and, indeed, to myself. That has inspired the putting down of the amendments standing in the name of my noble friend Lord Mishcon. It may well be that the noble Lord, Lord Foot, is familiar with this matter. He shakes his head most unhelpfullymost uncharacteristic!

Lord Foot

My Lords, I wanted only to indicate that I know as little about this matter as, evidently, does the noble and learned Lord.

Lord Elwyn-Jones

My Lords, I make absolutely no admission as to that. But it may well be that the noble and learned Lord the Lord Chancellor is fully apprised of this matter. I am sure that this amendment is of such immense significance and importance that it would be unfortunate, through the mere temporary absence of my noble friend, if it were to go the way of all flesh. I beg to move.

The Lord Chancellor

My Lords, I think I can be reasonably helpful about this—at least, as helpful as I know how. The effect of this group of amendments—Amendments Nos. 7, 8, 9 and 10—which need to be read together would be to extend the scope of Clause 40 by enabling sums standing to a person's credit in a building society account, or in a deposit account in a Trustee Savings Bank, or in a municipal savings bank to be attached in the same way as ordinary deposit accounts of banks can be attached. I understood from the noble Lord, Lord Mishcon, that he designed these amendments primarily as probing amendments in order to place on record information contained in a letter by me to him which I had sent to him.

Having been probed, I think reasonably successfully, I believe that there is a great deal to be said, along the lines of what the noble Lord, Lord Mishcon, might have said, for enlarging the scope of Clause 40, the contents of which have remained unchanged since their original enactment in 1956. Consultations have been going on between my department and various interested bodies such as the Building Societies Association, the Trustee Savings Bank, the Finance Houses Association and others to see whether the range of attachable savings can be enlarged. The present position is that the consultations are not quite complete, but I can say to the House that they are going reasonably well. The last round of consultations has just been initiated with a view to having amendments moved in another place when the Bill reaches there.

In fact, they go rather further than those envisaged in the amendments before the House. Subsection (1), for example, might be enlarged to include not only sums in deposit or redeemable share accounts in building societies, as proposed in the amendments, but also sums in deposit or share accounts in any society registered under the Industrial and Provident Societies Act of 1965, including, for example, a credit union.

Another and more far-reaching suggestion is that subsection (3) might be omitted altogether. As your Lordships will see from consulting the Act the subsection disapplies the section as a whole to various specified bodies, some of which would be omitted by the noble Lord, Lord Mishcon's amendments, and in addition in paragraph (b) disapplies the whole section to banks which permit withdrawals on demand at more than one place of business. It is indeed a defect of the amendments as drafted that the removal of some of the bodies referred to in paragraph (a) of subsection (3) would be ineffective because they would still be caught by paragraph (b).

It must be said that the removal of subsection (3) would cause some difficulties for those building societies and Trustee Savings Banks which do not have a computerised link-up with all their branches and agents, but the Building Societies Association indicated a willingness to accept these difficulties on certain terms, provided, for instance, that there is a gap, say, of seven days between the service of the garnishee order nisi on the garnishee and the service of the order on the debtor. These are matters which will need to be considered by rule committees in due course.

Other changes which are envisaged are that the Lord Chancellor should have power to add to, or remove from, the classes of debt mentioned in subsection (1), the power being modelled closely on the analogous power which exists in relation to chargeable assets under Section 3(7) of the Charging Orders Act 1979. Any amendments which we ultimately make to Clause 40 will have to be reflected by parallel amendments to the equivalent provision, Section 143 of the County Courts Act 1959. It is my hope to conclude these consultations in time to have necessary amendments to Clause 40 moved by the Government in the Commons. Having said that, I rather hope that at this stage the amendments will not be pressed further.

Lord Mishcon

My Lords, may I immediately make an apology to the noble and learned Lord and indeed to all your Lordships and may I make it perfectly clear that my absence was not due to a garnishee order being served upon me in the precincts of this House!

Having heard the noble and learned Lord say in his closing remarks that it would be appropriate to move a Government amendment in the Commons in order to deal with the subject-matter of this amendment and indeed having heard him say that he might even be extending the advantages and correcting some of the errors that are contained in my own draftsmanship or that of those who advised me on this matter, I am pleased to ask leave of the House to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 8,9 and 10 not moved.]

Clause 54 [Court of civil division]:

5.45 p.m.

The Lord Chancellor moved Amendment No. 11:

Page 39, line 12, at end insert— ("( ) hearing and determining any appeal against a decision of a single judge acting by virtue of section (Exercise of incidental jurisdiction in civil division) (1).").

The noble and learned Lord said: My Lords, I beg to move Amendment No. 11, with which your Lordships should read Nos. 13 and 16. Amendments Nos. 11 and 13 are paving and Amendment No. 16 is a new clause after Clause 57. The purpose of these amendments is to enable rules of court to specify the way in which the incidental jurisdiction in the civil division of the court of appeal that is to say, for instance, whether in court or chambers—is to be exercised. Secondly, the intention is to make more express provision for regulating appeals from the new registrar of civil appeals and from a single judge in the exercise of that incidental jurisdiction. Thirdly, it is intended to improve the structure of the provisions of the Bill regarding the exercise of incidental jurisdiction in the civil division of the court of appeal.

The changes made by the Bill to the way in which matters preliminary or incidental to appeals in the civil division are dealt with owe their origins to the report of the working party on the work of the court under the chairmanship of the noble and learned Lord, Lord Scarman. Copies of the report were recently placed in the Library and the detailed procedures recommended by the working party will be a matter for rules of court. All the Bill does is to lay down a framework in the form of rule-making powers.

At present, the framework is contained in a subsection of Clause 54—namely, subsection (7)—but Clause 54 is really about the composition of a court of the civil division and subsection (7) is really about the exercise of incidental jurisdiction. Not only do these provisions no longer really belong in Clause 54 but the importance of the new departure regarding the exercise of incidental jurisdiction really warrants a separate clause of its own. One purpose is, accordingly, to take the contents of subsection (7) of Clause 54 and place them in a new clause. Subsection (1) of the new clause also enables rules to provide for certain matters to be dealt with on the papers—that is, without a hearing. It also enables jurisdiction to be exercised in chambers. The details of the rules of court which may have to be made have yet to be worked out, but it is envisaged that the new registrar of civil appeals will, like the masters in the High Court, exercise his jurisdiction in chambers, for instance on the pre-appeal review contained—for those who are interested—in paragraph 9.3 of the report of the Scarman Working Party, and the single judge will also normally do so.

Moreover there may be minor matters, such as decisions as to whether further documents are required, contained in sub-paragraph (2) of the same paragraph in the Scarman working party's report, which can be reached on the papers without a hearing. But these are matters which will be dealt with in the rules and these will be brought forward in Parliament in due course. All the amendments do is provide sufficient powers.

Subsection (2) of the new clause enables rules of court to provide for appeals against decisions made in the exercise of the incidental jurisdiction. Subsection (7) of Clause 54 as it now stands already enables rules to provide for appeals from the registrar of civil appeals. What is envisaged here is a system similar to that which applies in the High Court, whereby decisions of a master can be appealed to a judge in chambers. Again it will be a matter for the rules but it is envisaged that the more important decisions of the registrar would be appealable to a single Lord Justice sitting in chambers. Subsection (2) also creates the possibility for rules of court to provide for a further appeal to a full court of the Civil Division.

The first of this group of amendments—namely, the one which inserts a new paragraph into Clause 54(4) —provides that in any such case a full court can consist of two judges. Subsection (2) of the new clause concludes by providing that, apart from whatever avenues of appeal may be created by rules, no appeals shall lie from decisions in the exercise of the incidental jurisdiction. That, my Lords, is to ensure that the object of creating the new jurisdiction is not defeated by the arrival before the full court of incidental matters which it is the purpose of the new system to deal with at a lower level.

Subsection (3) of the new clause simply reproduces the second part of the present Clause 54(7). I beg to move.

Lord Denning

My Lords, these amendments concern especially the civil division of the Court of Appeal, which is my special concern. On Second Reading of the Bill in this House there were complaints that the Court of Appeal was worked too hard. It was intimated that I was responsible for the hardness of their work. When I started years ago there were just two divisions of the Court of Appeal; six Lords Justices, three for the common law side and three for the Chancery side. Now we have to have six divisions of the Court of Appeal; that is 18 Lords Justices sitting on civil appeals all the time. We have 1,000 appeals a year. We have excessive jurisdiction confided to us, appeals from tribunals and commissions of all kinds. Our work has increased tremendously. We are just managing to keep level, but only just.

These amendments will help us tremendously, because we have what we call the interlocutary applications on a Monday morning. We have applications for leave to appeal; we have applications to extend time; we have applications for stay of execution. All take two or three divisions maybe a Monday morning each week. With these amendments those applications can be heard by a single judge or by the new institution recommended by my noble and learned friend Lord Scarman, a registrar of the Court of Appeal. They can be heard by a single judge or by the registrar, and we shall be glad to be rid of them all so that we can get on to our other work. Not only is there to be only a single judge or registrar, but a later amendment would decree that in some cases there is to be no appeal from that single judge. Furthermore, in many cases, if there is an appeal, it is to be to a Court of Appeal of two judges. All I would say to the House is that these amendments, from my position in charge of the Court of Appeal, are greatly to be welcomed. They will help us to get through the great body of work with which we have to contend.

Lord Elwyn-Jones

My Lords, that cri de coeur from the noble and learned Lord the Master of the Rolls obviously makes these amendments even more irresistible than they were after the conclusion of the speech of the noble and learned Lord the Lord Chancellor.

Lord Scarman

My Lords, the only way in which my noble and learned friend Lord Denning has added to the delays of the Court of Appeal is by making that court, through his years as President, the most popular judicial institution in the country. Of course, everybody flocks to it, including litigants. So of course we have this burden of delays, due not to an austere forbidding inability to make up its mind but to exactly the reverse virtues, all three of them.

I can confirm from my own experience the immense waste of judicial time that there is at the moment in three Lords Justices having to sit on two mornings a week, every division except the senior division presided over by the learned Master of the Rolls, Mondays and Wednesday, dealing with matters which could be perfectly easily dealt with by a single judge or by the registrar of civil appeals. I had a little drafting fun on Second Reading with the way in which this very important official, a judicial officer, is entering our law. But now we can see in this and other amendments what a very important role he is going to take, and I can only hope that very great care is taken to appoint a man of suitable calibre.

The Lord Chancellor

My Lords, I am very grateful to the noble Lords who have welcomed these amendments. I am very grateful for the support of the noble and learned Lord the Master of the Rolls and the noble and learned Lord the author of the Scarman working party's report. I do not think I need do more than say how grateful I am to the noble and learned Lord, Lord Scarman, for the work he put into it and to echo what is said by him about the Master of the Rolls. Not only is the Court of Appeal the most important judicial institution in England and Wales, but when I came the other day to lecture to London University on law reform I ventured to say that English law only really started to acquire its present coherent form, in spite of all the glory we take in it, when we had a proper pyramidal structure of appeals, and the whole of the coherent body of English jurisprudence on which our courts now work depends upon the work of the Court of Appeal, which is not only fundamental but continuing all the time to make new departures as new situations arise.

I should like to pay my tribute to the Master of the Rolls for the really immense contribution he has made to English law during his lengthy judicial lifetime. When I first went to the Bar one began to think that the common law had no more to say and that perhaps statute was the only method by which changes could be made. We now know better.

On Question, amendment agreed to.

5.57 p.m.

The Lord Chancellor moved Amendment No. 12: Page 39, line 38, at end insert (", and no appeal shall lie from a decision of a single judge acting under this subsection.").

The noble and learned Lord said: My Lords, the purpose of this amendment is to make it clear that the decision of a single judge of the Court of Appeal whether or not to grant or refuse leave to appeal to the civil division of that court shall be final. Clause 54(6) already provides that an application for leave to appeal to the civil division of the Court of Appeal may be determined by a single judge of that court. In the absence of any provision for an appeal from the decision of the single judge, or a right to renew the application to the full court, that provision already has the effect of making the decision of the single judge final. However, in view of the provision that is being made by other amendments to Clause 54, and the new clause which we have just been discussing following Clause 57, it will enable rules of court to make provision for appeals from the registar of civil appeals and from a single judge in other matters of incidental jurisdiction, and it is preferable to put the position beyond doubt. This is what the amendment does.

The Scarman Report, to which I have already referred, brings out the importance of having an effective filter for appeals to the Court of Appeal, of which the requirement of leave is perhaps the most important. The idea of having applications for leave determined by a single Lord Justice was not in fact a recommendation of that report, but it has been included in the Bill as being the only really effective way of providing a screen for appeals. As is pointed out in paragraph 5 of Lord Justice Megaw's memorandum at annex 4 to the report, there is an increasing number of appeals which are not deterred, by pursuing unmeritorious and hopeless cases, often to the grave detriment of the opposing parties as well as themselves.

The Lord Justice there expresses the view that no small part of the clogging of the machinery of the Court of Appeal is caused by the numbers of such appeals and the administrative difficulties and delays which they cause. The purpose of this screening apparatus would be largely lost if an applicant were entitled to renew his application every time to the Court of Appeal in the event of it being rejected by the single judge, and the need for an applicant to apply for leave to appeal to the Court of Appeal itself will only arise if he has been refused leave by the judge, court or tribunal below. This, therefore, will be his second attempt to persuade somebody that he has an argument to sustain. I beg to move.

Lord Denning

My Lords, again I would say this will help us, and I only hope the amendment will be carried.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 13: Page 39, line 39, leave out subsection (7).

The noble and learned Lord said: My Lords, I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

6 p.m.

Lord Mishcon moved Amendment No. 14: After Clause 54, insert the following new clause:


. The Lord Chancellor shall provide compensation to parties to proceedings who have suffered financial loss as the result of the failure of any person exercising a judicial function to try, hear or determine or to complete the trial hearing or determination of any action matter or other proceeding.").

The noble Lord said: My Lords, I beg to move Amendment No. 14. Supreme Court Bills do not come every year before us—indeed, of necessity they have to be spaced over quite a considerable number of years, not because we do not wish to reform matters that may want to be reformed, but only because the legislative programme is always so heavy that it becomes very difficult to deal with these matters. So I do not offer any apology to the House for bringing before your Lordships on this amendment a matter that I had the privilege of dealing with in Committee—and that is the matter of costs which arise on the death or incapacity of a judge before he is able to give judgment.

The fact that litigants are faced with the expense of having to start a hearing all over again has been brought to the attention of many of the authorities in the past, but in particular it came before the Royal Commission on Legal Services, and the spirit of the amendment which is now before the House was, in fact, supported by the Royal Commission at page 180, paragraph 16.19.

So that your Lordships can realise the hardship that may be involved in a matter of this kind—even though it may be rare—I should like to refer the House to a case which occurred quite recently. The parties had a case before Judge Norman Richards, who unfortunately died before he could give judgment. The case was then transferred for hearing before Judge Laughton-Scott, who was taken to hospital after the case had begun and who most tragically died later. When the parties found themselves before a third court it was thought appropriate to apply to the Lord Chancellor's Department for some form of compensation because, quite obviously, the very heavy costs that accrued did so through no fault whatever of the litigants, but purely and simply because of one of those unfortunate situations which can arise in the administration of justice. It was thought by those litigants that surely the Lord Chancellor's Department, which after all administers justice—not that it could be blamed for what had occurred—obviously should be responsible in some measure for compensating the parties. The department felt unable to accede to that request.

It is perfectly true that when one anticipates a very long case the parties insure the life of the judge. But that does not occur when a case is supposed to last some three or four days and where the litigants are, if I may say so, of medium means and are not very large commercial concerns. It is that type of case, however rare it may be, that is referred to principally in the amendment, and about which I know very well that The Law Society is extremely concerned.

These are days of austerity. The noble and learned Lord the Lord Chancellor, in courteously writing to me on this matter after I had raised it in Committee, mentioned the fact that for the Lord Chancellor's Department to bear these costs in these days would be—however rare the occurrence might be—a burden that it would not wish to carry and, indeed, could not carry because of the strictures of the present financial situation.

The cost of the issue of a writ these days is £40. I am old enough as a practitioner to remember the days when the cost of the issue of a writ was 30 shillings! However, now the cost of a writ is £40. It is thought that if that cost were merely increased by a matter of a few pence—be it £40.25 or whatever—then without any doubt at all the whole of the costs of this type of amendment could easily be covered. Indeed, it is anticipated by those who have tried to go into the matter from some sort of actuarial point of view that the Treasury might make a profit out of it.

It is not the purpose of my amendment necessarily to increase what is in the coffers of the Treasury, but I think that it is a practical proposition that the writ fee should be increased to cover a contingency of this kind in order that there could be justice when some litigants find themselves, however rarely it may be, with this terrible burden to carry. I am perfectly sure that all litigants would not mind the fact that they were paying possibly for some litigants, if this very small increase in the writ fee were made.

It is because of the type of case that I have mentioned, because of the rarity of it and the injustice of it when it does occur, that I hope that the opportunity can be taken to deal with it in this Bill. I said at the outset of my remarks how rare it is that we have an opportunity to bring in a clause of this kind, but I hope that the opportunity can be taken at this stage of this Bill. I earnestly hope that the noble and learned Lord when he comes to reply will have some consolation to offer to those who are involved in cases that would not normally be insured because they are not thought to be long cases, but where the parties find themselves with this burden to bear which it is so unfair that they should bear when they come to our Courts of Justice. I beg to move.

The Lord Chancellor

My Lords, I wish that I could be a little more agreeable to the noble Lord, Lord Mishcon, than it really falls to my lot to be. This is obviously a very rare case, but still one where the parties have at the moment to bear the premium on an insurance of the life of the judge, which they did in the Ocean Island case—at least it was so reported in the press—and as I believe it is not rare for commercial parties to do where the case is likely to be long. I think that the noble Lord, Lord Mishcon, who has been in correspondence with me, to some extent probably exaggerates the difficulties of insurance. It is not, I believe, necessary to subject the judge to a medical examination or for the judge to co-operate in any way.

Lord Mishcon

My Lords, I hope that the noble and learned Lord will forgive me for intervening, but the point to which he has referred was one which I made at the Committee stage and not today. I deliberately did not make that point today because of the noble and learned Lord's comments last time.

The Lord Chancellor

My Lords, it is perhaps as well to have that clearly in mind. It would not, of course, do to limit it to the High Court; it would have to be extended to the county courts, the magistrates' courts, tribunals, and, indeed anyone exercising a judicial function—even to those not appointed by or paid for by the Lord Chancellor himself out of his departmental funds.

I wish in some ways that I could be more forthcoming about this matter, but noble Lords must remember that we live in an age when we are compelled to restrain public expenditure. I am not only Lord Chancellor. I am a member of the Cabinet—for good or ill—and I am constantly being told in this House as I sit on the Woolsack and listen to noble Lords, that they want more money for Zimbabwe, more money for starving people in Africa, more money for the disabled and more money for school books. All those seem to me to be very reasonable demands until one adds them all up together. It is at that point that I ask: "Does this come as high as school books and such things in the order of priorities of what ought to be done?" It all comes out of the Consolidated Fund; it will not come out of my pocket. I rather think that the answer is, no.

Of course, I note the noble Lord's suggestion that all litigants should be made to insure the lives of all judges, which amounts to saying that one could pay an extra sum, whatever it was, on the £40 of a writ, and I suppose on whatever the current fee is for a plaint fee in the county court or whatever the sum is for commencing proceedings in the magistrates' court. There is something to be said for that, but I do not think that I could agree to it. Indeed, I have no authority to do so because it concerns the expenditure of money. I can only say to the noble Lord that there is an injustice here. Perhaps one day someone will be luckier than I and will be able to look more favourably upon it, but I do not think it can be me and I do not think that it can be this evening.

Lord Scarman

My Lords, perhaps I could intervene as one who has had his own judicial life insured by the parties in order to be certain that I ultimately reached a conclusion in the litigation. Purely anecdotically, when the case was over the parties presented me with the cancelled life policy. Had it not been cancelled, I think that I would have died rather earlier than it now appears likely that I shall, and my family would have been extremely well-off.

Seriously, there is a problem here which the noble Lord, Lord Mishcon, has exposed by this amendment. But I would respectfully suggest that it is not a problem to be dealt with by means of public funds. There is no difficulty in insuring a judge's life in heavy litigation. The case to which I referred was the longest will case in history, which I tried in 1965; millions were at stake and the costs ran into hundreds of thousands of pounds. The parties had no difficulty in arranging for an insurance as, unlike the Master of the Rolls, who has now left, it took me the whole of the long vacation to write my judgment, and they were a little troubled that something might happen to me in that long vacation. Within my own experience there are instances of other judges having heavy cases in which similar insurance policies have been taken out. Compared with the costs that those policies are intended to underwrite, the premiums demanded are negligible. It seems to me that where the mischief arises—namely, in heavy litigation—insurance at no great cost to the parties compared to the costs which they are already incurring is available.

If the noble Lord will allow me to say so, there is also danger in introducing into our law the possibility of compensation being paid out of public funds as a result of the failure of a person exercising a judicial function to try, hear, determine or complete a trial. One can envisage disputes arising which might not be calculated to maintain confidence in the administration of justice and if one can avoid that by leaving it to the good sense of litigants to insure where it is necessary, I think that in this case discretion is better than valour.

Lord Elwyn-Jones

My Lords, I am bound to say that I have great sympathy with what has been said by the two noble and learned Lords who have just spoken. I do not know what the additional cost on top of the court fees would be, but it would probably be a matter of a few pence. Am I not right in thinking that, broadly speaking, the court fees cover the cost of the court expenses involved in the litigation? I cannot swear to that, but I rather think that they do. Therefore, there would be no trouble for the noble and learned Lord the Lord Chancellor in Cabinet on this point if he were to give way, for I do not think that it would amount to an additional charge upon the public which was unjustifiable in the circumstances. Perhaps the noble and learned Lord would look at this again, because it can cause hardship in a number of cases and would be a convenient way of solving this problem.

The Lord Chancellor

My Lords, I can speak only by leave. I shall, of course, consider the matter. For the reason given by the noble and learned Lord, Lord Scarman, the amendment will not do at the present because it goes much too wide. I personally think that the suggestion that all litigants should insure the very rare cases where there is an important risk may be unjust to ordinary litigants. If the taxpayer does not pay, the ordinary litigant would not feel it necessary to insure, and would be prepared to run the risk.

What is really being said—and let us put it crudely—is that when, for instance, the noble and learned Lord, Lord Scarman, or his successors in the lower ranks of the higher judiciary, have to try a very long case where insurance is necessary those who indulge in this type of very expensive litigation should not have to pay more than the ordinary few pence that every litigant has to pay on £40, or whatever the initiation fee is, but the ordinary litigant must pay for them. I am not completely persuaded of the justice of that. I can quite understand that there is a class of case where proceedings abort through no fault of the litigants or the judge, where there may be a real injustice. They may not always be very large proceedings. But, at the moment, I am not persuaded that the proposal will do, whether the taxpayer pays or whether some system or compulsory insurance, by adding to court fees, is to be substituted for voluntary insurance. I will reflect upon this, but I do not hold out much hope at the end of it.

Lord Mishcon

My Lords, I did, of course, say in my few remarks that the Royal Commission on Legal Services had made recommendations along the lines of this amendment. I apologise to the House if the wording of my amendment is not as clear, as precise and as limited as, on reflection, I think it should have been. Therefore, I hope that when the noble and learned Lord at least reconsiders this matter—although he has made his position fairly clear—he will have in mind a more favourable view that might be taken if the wording were tidied up and the limitations were in accordance with some of his own suggestions. Upon that basis, and living as I always do in hope, I ask leave of the House to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 57 [Sittings and vacations]:

The Lord Chancellor moved Amendment No. 15:

Page 41, line 37, leave out ("(a) shall") and insert— ("(a) may provide for securing such sittings of the civil division of the Court of Appeal during vacation as the Master of the Rolls may with the concurrence of the Lord Chancellor determine; (b) without prejudice to paragraph (a), shall").

The noble and learned Lord said: My Lords, this amendment should be read with Amendment No. 18. These two amendments will enable rules of court to provide for such sittings of the Civil Division of the Court of Appeal and of the High Court to take place during vacations as the Master of the Rolls, in the case of the Court of Appeal, or the head of the division of the High Court in question, in the case of the High Court, with the concurrence of the Lord Chancellor, may determine. I am sure that the merits of this really speak for themselves. I shall expatiate on their beauties if the House desires, but unless I am pressed, I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 16:

After Clause 57, insert the following new clause:

("Exercise of incidental jurisdiction in civil division

.—(1) 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 (with or without a hearing) by a single judge of that court, whether in court or in chambers, or by the registrar of civil appeals.

(2) Rules of court may provide for decisions of a single judge or the registrar of civil appeals acting by virtue of subsection (1) to be called in question in such manner as may be prescribed; but, except as may be provided by rules of court, no appeal shall lie from a decision of a single judge or that registrar so acting.

(3) For the purposes of subsection (1) the making of an interlocutory order having the effect of preventing an appeal from reaching the stage of being heard and determined shall not be treated as a determination of the appeal.").

The noble and learned Lord said: My Lords, we have discussed this amendment. I beg to move.

On Question, amendment agreed to.

6.20 p.m.

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

Lord Elwyn-Jones moved Amendment No. 17: Page 45, line 18, after ("other") insert ("legally qualified").

The noble and learned Lord said: My Lords, your Lordships will note that Clause 67 enables rules of court to be made under which jurisdiction in the High Court can be exercised by, among others, as will be seen from Clause 67(1)(c): masters, registrars, district registrars or other officers of the court". It is the case that in a very limited sphere of taxation of costs, and within certain clearly defined limits, an unqualified person can tax costs. However, on the construction of Clause 67(1)(c) as it now reads, work which should normally be done by qualified, masters, registrars, district registrars", would be capable of being done by apparently unqualified officers of the court.

In the past assurances have been given that judicial decisions in the courts will not be taken by unqualified persons. While there is no objection to retired or part-time fully qualified persons doing this work, as they often do, it should not be available to persons without appropriate qualifications. I beg to move.

The Lord Chancellor

My Lords, this follows on a discussion we had in Committee. I have looked into the matter a little more carefully since then. I find that it has been possible since 1925 for rules of court to provide for the exercise of High Court jurisdiction by other officers of the Supreme Court without any qualification being specified or definition of that term being thought necessary. The original enactment was in Section 15 of the Administration of Justice Act 1925, which was subsequently consolidated into Section 99(1)(d) of the Judicature Act 1925. Clause 67(1) of the Bill is in fact a reproduction of Section 15(1) of the Administration of Justice Act 1956, which again did not qualify the expression "other officers of the court" in any way. So this is in fact really no new start.

In most cases where the rules of court delegate jurisdiction to officers it is one of the officers mentioned in Schedule 2 of the Bill, but that is not always the case. The main example where it is delegated to officers other than those mentioned in Schedule 2 is in the case of taxation of costs. Order 62 of the Rules of the Supreme Court already gives a certain amount of jurisdiction to taxing officers, who are defined in Rule 1 of that order in such a way as to make it clear that they are distinct from the taxing masters, and in practice they need not be legally qualified.

Another example is to be found in the examination of judgment debtors which, by Order 48, rule 1, sub-rule (1), can be carried out by a nominated officer. And rule 1, sub-rule 4, makes it clear that he may be a non-legally qualified officer not below the rank of a higher executive officer. There has been no apparent dissatisfaction with the way in which officers of these types have discharged their duties.

It is obvious of course that powers of delegation like this must be sparingly used, as they have been in the period since 1925, but the Supreme Court Rule Committee can be relied upon to ensure that jurisdiction is not conferred inappropriately, and to ensure that no function which requires the attention of a judicial officer fails to receive it. A parallel provision is being introduced for the county courts by paragraph 8 of Schedule 3. Hitherto the only delegation of jurisdiction which has been possible in the county courts has been delegation to the registrar. However, as in the High Court the rule committee can, I think, be relied upon to ensure that improper use is not made of the provision. I hope with this explanation that the amendment will not be pressed.

6.25 p.m.

Lord Mishcon

My Lords, I wonder whether I may add a thought in view of the noble and learned Lord's comments on this amendment. May one accept at once that nobody—and I believe that my noble and learned friend Lord Elwyn-Jones made this clear—is grumbling about the taxation of costs and matters of that kind being dealt with by an officer who is not legally qualified? The fact that a situation has obtained since 1925 does not mean that we should not look at it now that we are having a Supreme Court Bill, at a time when both in the High Court and in the county courts, as we said earlier, there is a great amount of pressure of judicial business.

The temptation could well be that, if it is not made perfectly clear that judicial functions must be exercised by those with legal qualifications, there might be a danger of a situation arising where those functions are in fact being carried out by somebody who has not got a legal qualification. The litigants deserve to be protected against that. They are entitled to have somebody with legal qualifications sitting in a judicial capacity.

I am tempted almost to look at the noble and learned Lord and refer to the qualifications he thought were so vital for anybody sitting, for example, as a High Court judge. He not only had to have great character qualifications and legal learning but he had to be an advocate and well experienced in the procedure of the court. What is good for the possibly richer litigant in the High Court must be also good for those who appear before other judicial officers in the course of a civil process.

What harm can there be in putting in the words "legally qualified" where it is suitable, and where it is clear that all one has in mind is the exercise of judicial functions—and I repeat again that taxation of costs and matters of that kind would not worry anybody if they were dealt with by a competent and not necessarily legally qualified officer—so the rules committee do not have burdens put upon them or powers of observation demanded of them as to what happens in court corridors beyond their normal powers of being able to watch things? Now that we are dealing with a Supreme Court Bill, that should be made abundantly clear in statute. I ask the noble and learned Lord whether he will not at least look at it again, and will not say that what was good from 1925 to 1981 must necessarily be good in the conditions in our courts from 1981 onwards.

The Lord Chancellor

My Lords, I do not think I shall look at this one again. It is putting the clock back before 1925. It is a restrictive practice which is unnecessary. I do not take the point at all, because it is a bad one, that the rich litigant will get different treatment from the poor litigant. On the contrary, all litigants have to come before the taxing masters and all litigants have to, or may have to, require the services of order 48. I think that this is a restrictive practice and unnecessary, and I do not feel that I can give any countenance to it at all. It is a purely retrogressive move.

On Question, amendment negatived.

The Lord Chancellor moved Amendment No. 18:

Page 47, line 38, after ("court") insert— ("(a) may provide for securing such sittings of any Division of the High Court during vacation as the senior judge of that Division may with the concurrence of the Lord Chancellor determine; and (b) without prejudice to paragraph (a),").

The noble and learned Lord said: My Lords, I have already spoken to this. I beg to move.

On Question, amendment agreed to.

6.30 p.m.

Lord Foot moved Amendment No. 19:

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: I will, with permission, speak at the same time to Amendment No. 20, my Lords. I can deal with this series of amendments briefly because in Committee I moved amendments in almost the same form as they appear here, with one small change to which I will come shortly. The object of the two taken together is to enable a person who is in the custody of a magistrates' court—that is, someone who has been charged with a summary offence and is awaiting trial in a magistrates' court, or a person who is charged with an indictable offence and is waiting for committal proceedings—if he asks for bail and is refused, to make a bail application to the Crown Court instead of the procedure which operates now whereby the only form of appeal, as it were, against the refusal of bail by a magistrates' court is by an application to a High Court judge in chambers.

The small difference between the amendments I moved on the last occasion and now is this. Amendment No. 20 would enable a person who wants to make an application to the Crown Court to have legal aid to do so. When it comes to the legal aid provisions, I have made a slight change in that I have provided that legal aid shall be granted if he has already been twice refused hail in a magistrates' court. That is to bring it in line with what f understand is the situation today, whereby if an unrepresented accused person appears before the magistrates and is refused bail, he can then get legal aid for the purpose of making a subsequent application to the same bench of magistrates. However, that difference is only minor.

The reason for these amendments is that it is generally agreed—indeed, almost universally agreed—that the procedure for applying to a High Court judge in chambers through the Official Solicitor, as most often occurs, has proved highly unsatisfactory. I do not know of anybody who is familiar with this matter—anybody among the solicitors' profession or at the Bar or on the bench—who thinks the procedure is satisfactory. Therefore I will not say much more about the general argument, mainly because when I moved amendments like these on the last occasion the noble and learned Lord the Lord Chancellor said he had considerable sympathy for the objectives. He felt unable to give more than sympathy because, with the escalating cost of criminal legal aid over the years—the figures are rather forbidding and frightening—and with the economic restraints under which the Government are necessarily operating today, he could not see that he would be justified in incurring the further burden on legal aid which would be involved if legal aid were provided for an application of that kind.

As I say, the noble and learned Lord was sympathetic. There emerged the fact that there was a wide divergence between the calculations which had been made by the Law Society as to what the potential cost would be and the calculations made by the Lord Chancellor's Department. I suggested then that between Committee and Report there could be consultations and discussions between his department and the Law Society to see whether the figures could be reconciled. The Lord Chancellor arranged for that to be done. Such consultations took place, and fruitful they were. I will not comment on the calculations, except that I think it right to say that the Lord Chancellor's estimate of the cost in Committee was £650,000 per annum, and that was very wide of the calculation that had been made by the Law Society.

I think I need only say about the calculations that have been made, now that we have been able to see the department's calculations, that it would be impossible for anybody to say that the Lord Chancellor's Department have got it wrong. We must acknowledge that they may be right. We may think they have overestimated a bit, but it would be foolish of me or the Law Society to challenge the general conclusions to which his department have come. I will not say more about those figures for another reason; namely, that I have a suggestion to make as to how the matter could be dealt with, and I should be grateful if the noble and learned Lord would consider it.

Not only did the Lord Chancellor on the last occasion express sympathy, but he went a little further and said: 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 there is merit in this amendment and that it is a matter which, given the financial constraints on me, I would like to give effect to at some time". The noble and learned Lord was good enough to go even further than that in a letter to me, and I quote this from the concluding paragraph: As I said in the House, I have sympathy for this proposal. I suggest, however, that it would be inappropriate to include it in this Bill in view of the public expenditure implications and the fact that it is not first among my priorities for extending criminal legal aid. In present circumstances, painful choices of this kind are inevitable. I can assure you, however, that consideration will be given to introducing legislation as soon as resources permit". That encourages me to make a suggestion. Would it be possible to incorporate the amendment in the Bill, but to leave it to the Lord Chancellor by order to determine when the provision shall be brought into effect? It could be postponed indefinitely. I suggest that has two considerable merits: first, it would put on record that it is the general conclusion of everybody who knows anything about the subject that there should be a right of application to the Crown Court in the circumstances; and secondly, and much more important, it would eliminate the need for any future legislation, because it would simply be brought into effect by the order of the Lord Chancellor. That would involve a great saving of time and trouble. If it is not done, it will be necessary, when resources allow, for somebody to introduce a special piece of legislation, for it to be carried through all its stages in both Houses, with all the claims on parliamentary time, and the expense of it, when all that could be averted if the noble and learned Lord complied with my suggestion. I beg to move.

Lord Elwyn-Jones

My Lords, I congratulate the noble Lord, Lord Foot, on his ingenious suggestion as to how to get over—at any rate for the time being—the financial difficulties that the noble and learned Lord the Lord Chancellor has mentioned, and with which I am very familiar in regard to the cost of legal aid. With regard to the merits of the situation that calls for legal aid for a person who cannot himself afford the cost of going to the Crown Court, I would point out that the person concerned is in custody from the magistrates' court, having twice tried to get bail from that court. In the face of that it seems just that he be given an opportunity to have recourse to a higher court. If there is justice and fairness in that in relation to procedures that are available in courts of higher jurisdiction, then the suggestion that we are considering, if it could be afforded, would seem to be very meritorious. While I am reluctant to add to the statute book a number of provisions which can come into effect at some indefinite future time, I would hope that in the special circumstances with which we are faced—only temporarily, I hope—of having to restrict expenditure considerably, the suggestion of the noble Lord, Lord Foot, will receive sympathy and support from the Lord Chancellor.

6.42 p.m.

The Lord Chancellor

My Lords, I do not at all wish to resile from the basically favourable view that I take of the merits of this proposal, though I feel that they can be very considerably exaggerated. A person can on his existing legal aid go to the magistrates' court for bail, and the fact that he is refused it does not preclude a second or subsequent application, certainly if there has been a change of circumstances, including a committal. On committal for trial with legal aid—which he will receive if he is remanded, because his liberty on the first of the Widgery criteria is in question—he can on his legal aid certificate secure an application for bail to the Crown Court. Therefore, as I see it, the situation in question arises only in cases where either he is on remand on a summary offence, or on remand on an indictable offence but has not yet been committed. It is therefore a fairly recondite situation, and ex hypothesi, from the nature of the amendment, he has been refused bail twice on the merits by a bench of magistrates. Therefore, one can exaggerate the value of the suggestion.

What is more, there remains the recourse via the Official Solicitor, free of cost, to the judge in chambers, which admittedly has to be done by correspondence. I think I am right in saying—though I may be wrong—that in the last 12 months 9,000 people have availed themselves of that course, with more or less success. There is also, of course, legal assistance in order to prepare an application to the Crown Court judge. So this is a matter for which I have a good deal of sympathy, but in regard to which my withers are not wrung as much as they would be if the limiting circumstances did not exist.

I must remind the House of the cost of legal aid; I am talking about criminal legal aid, not civil legal aid. I think that in 1972 it was costing £5 million a year, since when it has been cascading out of control. The cost was £61 million last year, and it is, I think, £81 million—the figure is not yet published—in the current year; and there was an overspending last year. I really cannot afford to add to the costs of criminal legal aid in respect of something so limited and so esoteric, when I am trying to do things of much more importance and value. I said earlier this evening that I was trying to tie criminal legal aid into a new system of procedure, with a view to speeding up the hearing of the High Court. I do not suppose that I shall be able to do that for nothing, because I can see the branches of the legal profession demanding, with some reason, a reconsideration of some of their fees. I shall try to switch from hearing to interlocutory, but I do not know how far I shall be successful in regard to that.

I also have to secure money for what I think is a rather more meritorious item; that of children's aid, under Section 64. I have been very heavily pressed to give civil legal aid—I think it is—for the unrepresented parents of a child involved in care proceedings. I have promised to give first priority to that matter, which will not be cheap, and so I shall have to redeem that promise before the proposal now before us can even be considered. So we are now faced with a potential charge of several hundred thousand pounds uncovenanted on this relatively less meritorious demand, and I do not think that I can do it.

I should like to thank the noble Lord, Lord Foot, for the extremely fair minded way in which he put his case, and for the extremely ingenious suggestion, which was, basically, that I should legislate his proposal in some form or other with a commencement provision included. In vain is the net of the fowler spread in the sight of the bird. I know what the noble and learned Lord, Lord Elwyn-Jones, would have had to say had our positions been reversed, as they were not so long ago. I consider it a bad principle to enact a provision when one has no immediate intention of carrying it out. It is one thing to include a commencement provision when it is intended to give a little time for the profession to absorb new ideas, or when it is intended to use the commencement provision when certain other provisions come into effect. But it is quite another matter to give a financial commitment with a commencement provision. They always tell me that I am going to retire, but that is quite wrong; sacked I might be, but retire I have no immediate intention of doing. But at any rate either me or one of my successors would be hunted from pillar to post by parliamentary Questions in both Houses as to when the commencement order was to be signed. As I say, in vain is the net of the fowler spread in the sight of the bird. The noble Lord, Lord Foot, would charm a bird off a tree, but not when he has spread his net in front of it.

Lord Foot

My Lords, I should like to make two comments on that speech. The first refers to the merits of the matter. The noble and learned Lord said, rightly, that the number of people who might want to avail themselves of the right to apply to the Crown Court and have legal aid in support of that would probably be between 8,000 and 9,000 a year. That is the calculation of his own department. If it be right that 9,000 people, who would apply if given the chance, are now being thwarted from being able to do so, and have to rely only on the wholly unsatisfactory system of having to go to a High Court judge in chambers, that means that the number of people who are suffering injustice at the moment is about 9,000. I do not see that the injustice is any less because the figure is not 90,000. If 9,000 people are being treated unfairly and improperly, that seems to me to be a blot on the system, and the object of my little amendment is try to put it right.

I spoke on the last occasion about the unsatisfactory nature of the present system of applying through the Official Solicitor to a High Court judge, and I did not expect to have to repeat the point. The system is almost absurd. What happens is that the applicant has to fill out a form saying why he wants bail and why he thinks he ought to be granted bail. That is posted through to the police, of all people, to the prosecution. They then make their comments upon it and put forward their observations as to why he should not be granted bail, and those papers are all posted off to the Official Solicitor, who duly turns up one morning before the High Court judge in chambers and puts the papers in front of him. The applicant has not had any opportunity to answer the allegations of the police; he is not there; he is not represented. Then, eventually, the decision is handed down. It is not surprising, is it, my Lords, that the success rate of that procedure is such that only about 3 per cent. of the people who make that application are successful?

Everybody agrees that this is absurd, and it could very easily be put right. It seems to me a pity that the noble and learned Lord, having been so good, having gone so far and having been so sympathetic, should now be drawing back. Quite clearly it would not be at all appropriate—it would be almost lèse-majesté!—to take this matter to a Division, and therefore I shall reluctantly withdraw this amendment, in the hope that as the Bill goes on into the other place better counsels may prevail. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 20 not moved.]

Clause 87 [Masters and registrars]:

The Lord Chancellor moved Amendment No. 21:

Page 58, line 14, at end insert— ("(5A) The Lord Chancellor may by order provide for the abolition of the office of Registrar or Assistant Registrar, Chancery Division; and any order under this subsection abolishing an office may make such consequential or transitional provision as appears to the Lord Chancellor to be necessary or expedient in connection with the abolition of that office, including the amendment or repeal of any statutory provision relating to that office or to existing or past holders of it. (5B) Any order under subsection (5A) shall be made by statutory instrument which shall be laid before Parliament after being made.").

The noble and learned Lord said: My Lords, this is an important amendment, but I do not think that for that reason it is necessary for me to talk about it at any length. It is important because it involves the power to abolish a statutory office. I do not know whether your Lordships have read it in the papers, but there is now available in the Library the report of a review committee consisting of Mr. Justice Oliver (as he was when he was appointed, Lord Justice Oliver as he is now) and Mr. John Woolf, who conducted a thorough-going review of the procedure in the Chancery Division. I set this up last year because it was apparent to me that all was not well in that ancient and venerable institution of which I am the titular head but of which the Vice-Chancellor is the effective head, and that too much had been going on for too long for it to be absolutely contemporary.

So Mr. Justice Oliver, who was an outstanding judge of the Chancery Division and is now a welcome addition to the Court of Appeal, and Mr. John Woolf, who is the deputy chairman of the Board of Customs and Excise and Director-General of Customs and Establishments, went into the matter and made a report, now available in the Library and published as a Blue Book, Cmnd. 8205, with 88 recommendations as to how the Chancery Division practice could be improved. It is too early to say whether or not all those 88 recommendations are going to be accepted. I have not yet consulted, and I must consult before I even attempt to implement them. I shall have to consult the Chancery judiciary and, because there are some consequentials, probably the other judiciary as well; and I shall have to consult with the profession, both branches, who will no doubt want to make their comments. Therefore, I do not expect that some of the crucial changes can be brought about under 18 months—which, assuming that they were desirable, is longer than I would like. None the less, one must do these things properly.

But a crucial recommendation of this working party was that, instead of seven registrars and six other lawyers in the Registrar's Department, there would in future be perhaps only four lawyers and enough more junior officers, higher executive officers, to sit in court and draft orders, which are the principal functions of the existing registrars. I have no intention whatsoever of abolishing the office of registrars overnight—not until the consultation has taken place and not until necessary amendments have been made to the rules of the Supreme Court afterwards—but quite clearly I should be failing in my duty, with this recommendation in front of me, if I did not take power to do it. The power will be exercised by statutory instrument, and that statutory instrument will be laid before Parliament; but two steps need to be taken before I can do it at all. One is an amendment of the rules of court, and the amendment to the rules of court will be laid before this House and will be subject to control by this House and the House of Commons. So I remain subject to parliamentary control.

I am moving this amendment, which is important, in order to have the power, subject to parliamentary control, to abolish these offices and to substitute the structure which is suggested in the Oliver Report. I am sure that I ought to take this power, but, as I have undertaken to the House, I shall not exercise that power until I have consulted the judiciary and the professions, and until rules of court have been drafted which are subject to parliamentary control. If the rules of court pass the scrutiny of Parliament, then of course the abolition of the offices will be purely consequential, and it will be done by statutory instrument laid before Parliament. But it is an important amendment. I hope I have explained it adequately, and I beg to move.

On Question, amendment agreed to.

Clause 128 [Fees to be taken in Supreme Court]:

The Lord Chancellor moved Amendment No. 22: Page 73, line 9, after (" Vice-Chancellor ") insert (", or of any three of them,").

The noble and learned Lord said: My Lords, this amendment and the next one, No. 23, allow the concurrence of one of the four heads of division—that is to say, the Lord Chief Justice, the Master of the Rolls, the President of the Family Division and the Vice-Chancellor—to be dispensed with for the purpose of making Supreme Court fees orders and rules about the production of documents filed in, or in the custody of, the Supreme Court. Since this really only preserves the status quo, I think I can probably fairly say that it is only technical, but I had better explain it in a little greater detail.

The present power to make orders by statutory instrument as to fees to be taken in the Supreme Court is contained in Section 213 of the Act of 1925. It vests the power in the Lord Chancellor, who must obtain the concurrence of the judges of the Supreme Court—not the heads of division, but the judges of the Supreme Court—or any three of them. Clause 128(2)(a) brings the law into line with what is in fact the modern practice by requiring the concurrence of the heads of division. However, that would by itself create an undue rigidity because if any one of the four heads of division was unavailable (for instance, because he was sick or the office was vacant) it would be impossible to make an order at all. So I have retained the number three and I have substituted the heads of division for judges. That corresponds with what happens at the moment. I beg to move.

On Question, amendment agreed to.

Clause 134 [Production of documents filed in, or in custody of, Supreme Court]:

The Lord Chancellor moved Amendment No. 23: Page 75, line 24, after ("Vice-Chancellor") insert (", or of any three of them,").

The noble and learned Lord said: My Lords, this amendment is consequential. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 24:

After Clause 136, insert the following new clause:

(" Enforcement of fines and forfeited recognisances

.—(1) Payment of a fine imposed, or sum due under a recognisance forfeited, by the High Court or the civil division of the Court of Appeal may be enforced upon the order of the court—

  1. (a) in like manner as a judgment of the High Court for the payment of money; or
  2. (b) in like manner as a fine imposed by the Crown Court.

(2) Where payment of a fine or other sum falls to be enforced as mentioned in paragraph (a) of subsection (1) upon an order of the High Court or the civil division of the Court of Appeal under that subsection—

  1. (a) the court shall, if the fine or other sum is not paid in full forthwith or within such time as the court may allow, certify to Her Majesty's Remembrancer the sum payable; and
  2. (b) Her Majesty's Remembrancer shall thereupon proceed to enforce payment of that sum as if it were due to him as a judgment debt.

(3) Where payment of a fine or other sum falls to be enforced as mentioned in paragraph (b) of subsection (1) upon an order of the High Court or the civil division of the Court of Appeal under that subsection, the provisions of sections 31 and 32 of the Powers of Criminal Courts Act 1973 shall apply to that fine or other sum as they apply to a fine imposed by the Crown Court.

(4) Where payment of a fine or other sum has become enforceable by Her Majesty's Remembrancer by virtue of this section or section 15 of the Contempt of Court Act 1981, any payment received by him in respect of that fine or other sum shall be dealt with by him in such manner as the Lord Chancellor may direct.

(5) In this section, and in sections 31 and 32 of the Powers of Criminal Courts Act 1973 as extended by this section, "fine" includes a penalty imposed in civil proceedings.".

The noble and learned Lord said: My Lords, with this amendment there should be read a number of others, Nos. 33, 34 and 36. It is a new clause after Clause 136. It provides an up-to-date provision for the enforcement of fines and forfeited recognisances in the High Court and the civil division of the Court of Appeal, and enables a number of sections of two 19th century statutes relating to the same matters to be repealed. The law governing the enforcement of fines and penalties is partly common law and partly a somewhat antiquated statute, the Fines Act 1833. In the relatively rare cases where a fine must be enforced, the usual procedure is for it to be certified to the Queen's Remembrancer who issues a special writ known as the Queen's Remembrancer's Writ to the sheriff for the recovery of the money. As a matter of common law, the Queen's Remembrancer can probably adopt other forms of High Court execution. Your Lordships will know that the office of Queen's Remembrancer is an executive office. It originally pertained to the Court of Exchequer, one of the duties of which was the collection of debts for the Crown. Nowadays it is held by the senior Master of the Queen's Bench Division.

The new clause is modelled on Section 179 of the County Courts Act 1959. Subsection (1) provides for enforcement in the alternative as a High Court judgment or through a magistrates' court. The second alternative will be appropriate in most cases. Most of the relatively few fines which have had to be enforced in recent years have been for small amounts for which High Court execution is uneconomic. They can in future be referred to magistrates' courts. High Court execution will remain available for the occasional case of large fines which need to be enforced. In this case the Queen's Remembrancer will be responsible under subsection (2) for taking the necessary steps. The remaining provisions of the new clause are purely technical. Subsection (3) attracts the necessary statutory provisions for enforcement through magistrates' courts where this method is used and the court imposing the fine will have to specify the magistrates' court through which the fine is to be enforced and the period of imprisonment to be served in default. Subsection (4) restates in modern form the effect of Section 28 of the Act of 1833, and subsection (5) is interpretation. I beg to move.

On Question, amendment agreed to.

Clause 147 [Citation, commencement and extent]:

7.3 p.m.

The Lord Chancellor moved Amendment No. 25: Page 86, line 22, at end insert ("section 27;").

The noble and learned Lord said: My Lords, this amendment has to be read with No. 26 and there are two amendments to Clause 147. They have the effect of removing the restrictions on extent which at present apply to Clause 27, "Prize jurisdiction of High Court", Paragraph 1 of Schedule 4, "Construction of References to Superseded Courts …" At present these provisions are not mentioned in Clause 147 and therefore, by virtue of the concluding words of subsection (4) of Section 4, extend only to England and Wales. The amendments will give them unrestricted effect and therefore, I am told, the senior legislative draftsman at Stormont and the deputy legal adviser at the Foreign and Commonwealth Office agree with the view now taken. The English High Court jurisdiction extends in some sense to Northern Ireland and Scotland as well as to Her Majesty's provision by virtue of the fact that Section 4 of the Naval Prize Act 1864 gives the High Court of Admiralty (which is now the High Court) jurisdiction throughout Her Majesty's dominions as a prize court; and I hope we shall never have any more prize cases. They used to be great fun, but I think this is a wise amendment in case. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 26: Page 86, line 28, at end insert ("paragraph 1 of Schedule 4.").

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

On Question, amendment agreed to.

Schedule 2 [List of offices in Supreme Court for purposes of Part IV]:

Lord Mishcon moved Amendment No. 27: Page 88, line 17, after (" Barrister ") insert ("or solicitor").

The noble Lord said: My Lords, after those supreme examples of clarification by learned speeches, I beg to move this amendment which deals with a practical matter. This clause lays down qualifications for some Supreme Court office holders, the details of which are to be found in Schedule 2. Great progress has been made in regard to what I hope your Lordships will think to be a step in the right direction; namely, that where office holders in the courts are being looked at, the question of legal qualification is still necessary but, instead of having that sharp line of demarcation between the solicitor side of the profession and the barrister side of the profession, your Lordships will find that the qualifications in Parts II and III are now made, by and large, either solicitor or barrister. I think that that is a very welcome change. I promise your Lordships I will not go to my old hobby-horse of which I am sure the House will be tired. I merely deal with Supreme Court office holders at this moment and not on the subject of judges.

It so happens—and as I have said, in my view the principle is absolutely right—that, by virtue of those changes, 23 posts are now open to barristers which were not open to them before, and 10 posts are open to solicitors which were not open to them before. This means, if my arithmetic is correct, a net gain to the barrister side of the profession of some 13 posts. The fact that that is so still makes the principle obviously an extremely welcome one.

When one gets to Part I (as against Parts II and III with which I have been dealing) one finds that the two offices there can be filled only by those with one type of qualification; so that progress has halted. Because it is halted, in my view, in a wrong way and at a wrong stage, this amendment is moved, with the support, if I may be allowed to say so, of the Law Society. The Permanent Secretary to the Lord Chancellor has, under Part I, to be a barrister, and the Official Solicitor has to be a solicitor. I am not suggesting that the Permanent Secretary to the Lord Chancellor be a solicitor or that the Official Solicitor be a barrister; I am merely asking your Lordships to agree an amendment which will mean that those appointing to those important positions will have the opportunity of selecting from applicants who may be either barristers or solicitors.

It may appear to your Lordships that it is rather peculiar that someone who is entitled "Official Solicitor" could be a barrister. Let me tell your Lordships immediately that there is nothing in what the Official Solicitor has to do—indeed, he has quite a few barristers on his staff—which makes it necessary for him to be a barrister. I suppose your Lordships will immediately think of the somewhat extraordinary situation, as some foreigners think it, that while we have the position of Solicitor-General, I can assure your Lordships that no solicitor can occupy that very high post of Solicitor-General. It must be a barrister, but he is still called Solicitor-General.

What I hope your Lordships will say, and what I hope the noble and learned Lord, after consideration, will say, is that these positions ought to be open to the best applicant and that the positions in Schedule 2—all of them, including Part I—should be open to both barristers and solicitors. I would say at the conclusion of these remarks that those advising me tell me that without any question at all there is no magic whatsoever in the Permanent Secretary to the Lord Chancellor having to be a barrister or having to have intimate knowledge of the practising Bar or of the highest courts. It is therefore in the hope that the whole of Schedule 2 will have the mark of progress upon it—namely, that the applicants for these positions can be either solicitors or barristers—that I beg to move.

7.10 p.m.

The Lord Chancellor

My Lords, I must say that I think progress—if that be right—has halted at exactly the right point. I entirely agree that for most purposes of non-practising legal activities, a legal qualification of either kind is broadly equivalent and there is no reason why it should not be. It is also of course a matter of supreme and rather unholy mystery to the public at large. They simply do not understand that the Solicitor-General is always a barrister and the Attorney-General is never an attorney. They probably do not know but it is none the less the case that the Treasury Solicitor, who is the senior legal adviser to the Crown, is either a barrister or a solicitor and can be either. He does it very well.

You may say: "Why on earth should the Clerk of the Crown in Chancery not be a solicitor?" The answer is this—it is a peculiar one. I wonder how many members of the public, if asked what the Clerk of the Crown in Chancery did as a matter of daily work when he went to the office, would really know. The answer is that he is the permanent secretary to the Lord Chancellor. He is unlike any other permanent secretary because Lord Schuster put him in the schedule to this Bill. Lord Schuster knew what he was doing because it altered his compulsory age of retirement, improved his pension and laid down a minimum professional qualification. These are the basic facts; they are the nitty-gritty of the situation. Nevertheless, those who are eligible for the post will not be simply practising solicitors or practising barristers. There is no more prospect of the most suitable applicant being simply a qualified lawyer of the stipulated standing than there is of the most suitable applicant as permanent secretary to the Minister of Agriculture being other than a civil servant.

The Clerk of the Crown has been essentially a civil servant since the job became what it is; and I have known them all more or less since Lord Schuster—God bless his memory!—who was incidentally a most prominent member of the Alpine Club and a very formidable character indeed who worked with my father. Of the past three or four, certainly, Sir George Coldstream practised at the Bar for a very short time. He became a parliamentary draftsman for a time. He stopped practising at the Bar because he became a parliamentary draftsman. He then gravitated to that highest of all possible occupations, a position in the Lord Chancellor's Office. He subsequently became Clerk of the Crown in Chancery because he became the Lord Chancellor's permanent secretary.

The last one was Sir Denis Dobson, who worked with me throughout my last term of office; he started as a solicitor, as a matter of fact. Realising the necessities of the case after he transferred to the Lord Chancellor's Office, he became a barrister. Having been a barrister, he became a Bencher of his Inn and has retired with great honours and distinction. The holder of the present position practised for about six years at the Bar and then joined the Lord Chancellor's Office and now there he is.

Why do I say that he ought to be a barrister? The answer is, because he is part of my "gestapo". It is little known that I am the man with the most data-sensitive material in the world. I have to recommend to the Prime Minister or submit to Her Majesty for appointment the names of all the judges. The job cannot be done by somebody who is not a member of the Inns of Court and probably a Bencher of his Inn. Therefore, I do not want to change that.

Now I turn to the other side of the coin. There, I think that the noble Lord, Lord Mishcon, is wrong for exactly the opposite reason. The Official Solicitor—unlike the Treasury Solicitor—has to be a solicitor and in fact he would be breaking about half a dozen laws if he was not. If we accepted the next amendment we should have to change those laws. The simple reason why he has to be a solicitor is that he does a solicitor's work. He very largely instructs barristers in the ordinary way—for instance, in the Family Division—to appear for unrepresented infants in matrimonial disputes. He is appearing constantly for people in prison who are not otherwise represented. He usually instructs a barrister to do it, and he acts as an ordinary solicitor.

The reason why he has to be a solicitor is that the barrister is totally unsuited to do the job. People always think that barristers can do solicitors' work. I assure you that they cannot. I know this very well because during the war I was constantly having to defend people at courts martial. Sometimes I succeeded and sometimes I failed. One of my great successes was to defend at a court martial a man who was accused of stealing tyres in a street called Straight in Damascus. It was a great success. But, in the main, I was not a great success as a prisoner's friend because I could not do the solicitor's work. I was only used to being an advocate in court. I could not instruct myself and I did not do very well.

Also, I am instructed and I believe that there are various technical objections. If he purported to act as a solicitor being a barrister he would be acting in breach of Section 20 and Section 21 of the Solicitors Act 1974. Conveyancing, which he does, would be much more difficult. A barrister is not an unqualified person as regards the preparation of instruments for transfer but he would not be qualified to receive the purchase monies arising on the sale of land, because Section 69 of the Law of Property Act provides that the money must be paid to the vendor or his solicitor.

A next friend or guardian of a person under a disability must act by a solicitor because of the rules of the Supreme Court, Order 90, Rule 2. If the Official Solicitor were a barrister, he would be able to act as next friend only with the mediation of some person who was a solicitor. Of course these things can be changed. A solicitor who is instructed by a receiver for a patient is a solicitor for the patient. Exactly because he is a solicitor, the Official Solicitor is now thus enabled to take on receiverships from the Court of Protection where no other receiver is available. If he were a barrister, the first section which I referred to would put him in a difficulty.

To what purpose are all these proposed changes? I absolutely agree that in the great majority of cases the legal qualification which the solicitor has is broadly equivalent to the legal qualification which a barrister has. But in these special cases I would not willingly agree that the Official Solicitor should be a barrister or that, notwithstanding Sir Denis Dobson having started as a solicitor and having transferred to the Bar, the permanent secretary to the Lord Chancellor should be a solicitor. This is the point at which we have reached the right point of progress and should now take pride in our ancient institutions.

Lord Mishcon

My Lords, I never expected from these Benches to have to express my astonishment at the noble and learned Lord's defence of a closed shop in his own particular profession, and I find it absolutely remarkable that I should have listened to such a speech. Having listened to it I, as always, admire the eloquence expressed. If I may say so, I wish I could equally admire the logic behind the argument.

The hour is getting on and there is an important Bill to follow this. It must be progress if the people who are to fill important positions, provided they have sufficient knowledge—and that will be the task of those who select them—can be taken from the best possible number of qualified people. That is the reasoning behind Part II and III and that is the reasoning behind Part I.

The noble and learned Lord will forgive me if I tell him that the Official Solicitor does not even have to have a practising certificate, and in regard to the amendment I am told that an amendment to the Solicitors Act, if any were in fact needed, would be a very simple one indeed to carry through.

Regarding the noble and learned Lord's reference to his "gestapo", if it is indeed that, I feel I really ought to be withdrawing my amendment because I would not like my side of the profession to be a member of the gestapo. But having said, that and the noble and learned Lord having been so frank with us, I would add that I had the biographies of the last three occupants of the post and all my thunder has been stolen by the noble and learned Lord. I was going to refer to the fact that one of the best known and most loved occupants of the position of permanent secretary was indeed a solicitor who changed over to the Bar purely in order to take that position, without any experience at all of the Bar, without any practice at the Bar, with no experience of the High Court or as a Bencher, such as we have heard about. Really, if it is purely a question that the solicitor could not be thought of as one either to be entrusted with confidences or to have sufficient discretion to go into consultation with the noble and learned Lord or with any of his successors on the question of the appointment of judges, I find it remarkable.

As I said, having regard to the stoic, obdurate and always courteous and completely "closed shop" mentality that the noble and learned Lord has shown tonight, there is absolutely no point in my carrying the argument further, except to hope that possibly someone with courage in another place will move a similar amendment and will be able to persuade another place more effectively than I think I would be able to persuade your Lordships tonight, in view of the observations made by the noble and learned Lord. In those circumstances I beg leave to withdraw the amendment.

The Lord Chancellor

My Lords, perhaps by leave of the House I might say this. There is no question of a closed shop because there is no question of belonging to any form of trade union, whether affiliated to the Trades Union Council or not. They are simply members of a profession.

Amendment, by leave, withdrawn.

[Amendment No. 28 not moved.]

Schedule 3 [Amendments of County Courts Act 1959]:

The Lord Chancellor moved Amendment No. 29:

Page 92, line 16, at end insert— ("Provided that if the claim in question arose before the commencement of the Supreme Court Act 1981, an action in rem shall not be brought against that ship unless, at the time when the action is brought, that ship is beneficially owned as respects all the shares therein by the person who would be liable on the claim in an action in personam.").

On Question, amendment agreed to.

7.24 p.m.

Lord Mishcon moved Amendment No. 30:

Page 95, line 40, at end insert—

(".The following subsection shall be inserted after subsection (3)— (4) Where a judgment or order is made by the court under which a sum of money is payable, such sum (if exceeding the amount prescribed by rule) will carry interest as from the date of entry of judgment until payment at such rate as is prescribed for interest on judgments in the High Court.".").

The noble Lord said: My Lords, again I hope to be brief in moving this amendment. Your Lordships will know that in the High Court judgments carry interest, and the reason for the necessity of that is that quite often fairly substantial amounts are involved. In any event it is only just that somebody who obtains a judgment for a sum of money should be entitled to a rate of interest which is laid down if he is not immediately paid. That is not the position historically in the county courts. They, as we know, are about to obtain jurisdiction—many of us think very properly—which will go up to £5,000 and sums in that region. Therefore, it is thought proper that the county court judgments should feature equally with High Court judgments in being entitled to interest except—and let me say this quite frankly—on judgments for very small sums which one thinks conveniently ought still to be exempt.

In view of the parallel jurisdiction that is being given and the encouragement to litigants to go to county courts in regard to their claims, it seems just that the interest should be chargeable and paid by an unsuccessful party. In those circumstances, I beg to move.

The Lord Chancellor

My Lords, this is clearly right in principle. I am told it is defective in drafting, but I was hoping, if the noble Lord would agree to withdraw his amendment, to have an amendment drafted by the time the Bill reaches another place which would cover the principle without repeating the words.

Lord Mishcon

My Lords, in view of the fact that solicitors are supposed to be good at drafting and possibly in some cases superior to counsel, I have been humbled tonight to find that my drafting is not of the best. However, obviously I am delighted with the noble and learned Lord's remarks, and on that basis I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mishcon moved Amendment No, 31: Page 96, line 26, leave out ("annulment in pursuance of a resolution of either House of Parliament") and insert ("an affirmative resolution of both Houses of Parliament").

The noble Lord said: My Lords, this also, I am glad to say, is a short point. Your Lordships will remember that there is a provision in Schedule 3 on page 84 of the Bill which deals with the limitation on the rights of appeal from the county court. The limitation is that no appeal can take place in certain cases which are laid down by the noble and learned Lord the Lord Chancellor, but subject to the approval of the House, because the order would come before both Houses of Parliament, and in certain cases he may decide to recommend that no appeal lies without the leave of the county court judge or the superior court. It is a limitation on the right of appeal and, as such, we ask that it should be by Affirmative Resolution of the House and not by a Negative Resolution procedure.

Some of us remember the burden we are under in this Chamber, if I may say so, in trying, for example, to have a Division when the negative procedure is invoked. It is the tradition of this Chamber that one does not ask for a Division when the negative procedure is being invoked by way of a Prayer of Annulment in regard to a statutory order or instrument. It does seem wrong that where one is dealing with a limitation on a right of appeal that certainly this Chamber should be under that handicap. The amendment merely asks for an Affirmative Resolution because of the limitation of which I have spoken. I beg to move.

The Lord Chancellor

My Lords, I hope to be able to persuade the noble Lord that there is nothing sinister in the attitude I am taking. Perhaps I might begin by reminding your Lordships, if you do not already know, what the status quo is, because the status quo is rather peculiar. The status quo is that there is a distinction in the right of appeal from the county court between what are called questions of law and what are called questions of fact. This is supposed to be a very clear line of demarcation, but those who have practised in the law for some time know that it is perhaps less clear in practice than it is in theory.

In questions of law, if the claim is under £20—I am still dealing with the status quo—you have to get leave to appeal. This has been the rule since 1850. In questions of fact, if the amount is under £200 there has been no appeal at all, and over £200 you have an unlimited right of appeal as of right. This is again for a purely historical reason: £20 was rather a large sum of money in 1850 and in the time when the county court jurisdiction was raised, by great efforts, from £100 to £200 it was thought a dreadful thing not to be able to retain your ultimate right of appeal—I think then to the Divisional Court and now to the Court of Appeal—and this provision was written into the law. So now you have embalmed, like a fly in amber, the situation as of 1850, in relation to questions of law, and whatever period it was during my legal career, just before the war, as to questions of fact. This is not really coherent or sensible, and what is now proposed is that there should be a rule-making power.

As the highly excited atmosphere of this House betrays, the great majority of Peers, and, I suspect, the great majority of commoners, would rather go home than discuss and decide by Affirmative Resolution the classes of case, that should require leave to appeal in the county court on rules made by the Lord Chancellor, after consultation with the judiciary and with the rules committees of the various courts. I personally think that the Negative Resolution procedure will be welcomed by the overwhelming number of Members of both Houses.

The noble Lord, Lord Mishcon, is, as a matter of fact, the only Peer in my recollection—and I have been in the House of Lords, on and off, since 1950—who ever questioned the regulation of the rules committee, thereby making new history and that only in this Parliament, and he did it under the Negative Resolution procedure. I rather feel that the Negative Resolution procedure in this kind of question has proved itself, and that no great or serious erosion of our rights under the constitution is involved. I would therefore ask him, as a matter of common sense, to agree that this is not a great imposition by the Lord Chancellor of a new despotism, but is really just a rather wise and, if I may say so, charitable treatment of our fellow Members. I therefore resist the amendment.

Lord Mishcon

My Lords, I hope that I shall never be accused of being uncharitable to my fellow Members. The noble and learned Lord was very kind in referring to the piece of history that I made—not with a very successful outcome. In view of what has been said, and because of the number of those present in your Lordships' House at this moment, it would be wrong of me to carry the matter any further now. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 5 [Consequential amendments]:

The Lord Chancellor moved Amendment No. 32:

Page 107, line 24, at end insert—


In paragraph 8(2) of Schedule 11, for "9 of the Supreme Court of Judicature (Consolidation) Act 1925" substitute "10 of the Supreme Court Act 1981".").

The noble and learned Lord said: My Lords, this amendment is pure drafting. It is a routine substitution of a new statutory reference for an old one. I beg to move.

On Question, amendment agreed to.

Schedule 7 [Repeals]:

The Lord Chancellor moved Amendments Nos. 33 to 36:

Page 111, line 19, at end insert—

("3&4 Will.4.c.99. Fines Act 1833. Sections 26 to 28 and 30 to 32, except as regards process issued before the commencement of this Act.
Section 33, except as regards matters to which sections 23 to 25 of the Act relate.").

line 30, at end insert—

("22 & 23 Vict. c. 21. Queen's Remembrancer Act 1859. Section 23.").

Page 113, line 14, column 3, at end insert ("In section 56(1)(l) the words from "and any onwards.").

Page 118, line 39, at end insert—

("1981 c.. Contempt of Court Act 1981. In section 15(2), paragraph (c) and the word "and" preceding it.").

The noble and learned Lord said: My Lords, with the leave of the House, I should like to move en bloc the remaining Amendments Nos. 33, 34, 35 and 36, which are consequential. I beg to move.

On Question, amendments agreed to.