§ 2.56 p.m.
§ The Lord Chancellor
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
§ Moved, That the House do now again resolve itself into Committee.—(The Lord Chancellor.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD ABERDARE in the Chair.]
Lord Denning had given notice of his intention to move Amendment No. 45:
After Clause 41, insert the following new clause:
§ ("Charge on matrimonial home.
§ "Provided that in the case of a matrimonial home, the charge shall only be for such amount as the court considers is just and equitable.".")940
§ The noble and learned Lord said: This amendment will involve a good deal of discussion. It is a most important amendment on the question of law reform. However, since I have put it down matters and papers have come to my notice which need further discussion and inquiry. In those circumstances, I should like to reserve this for a later stage at Report. I beg leave not to move this amendment.
§ [Amendment No. 45 not moved.]
§ [Amendment No. 46 not moved.]
§ Clause 42 agreed to.
Lord Elwyn-Jones had given notice of his intention to move Amendment No. 47:
After Clause 42, insert the following new clause:
§ ("Grant of legal aid by High Court or Court of Appeal
§ .—(1) Where, at the hearing of any proceedings in the High Court or in the civil division of the Court of Appeal, it appears to the judge or that court to be desirable that a party appearing in person should receive legal aid for the further conduct of those proceedings, the judge or the court may, with the consent of that party, determine that he should be treated as if he were a person to whom an emergency certificate had been issued in accordance with regulations made under Part I of the Legal Aid Act 1974 subject to his complying with such conditions as to the furnishing of information and otherwise as may be required by such regulations.
§ (2) On making a determination under subsection (1) for the grant of legal aid to any party the judge or the Court of Appeal may adjourn the proceedings so far as may be necessary to enable that party to be represented by a solicitor and counsel and shall cause notice of the determination to be sent to The Law Society.").
§ The noble and learned Lord said: At this stage, I do not wish to move the amendment.
§ [Amendment No. 47 not moved.]
§ [Amendment No. 48 not moved.]
§ Clause 43 [Application for judicial review by High Court]:
§ On Question, Whether Clause 43 shall stand part of the Bill?
§ Lord Elwyn-Jones
If I may say so, the intention and wish is that the noble and learned Lord, Lord Denning, should speak. There will be no lack of speakers on this matter, I fear.
§ The Lord Chancellor
Before my noble and learned friend takes his proper place in the proceedings, may I tell the Committee, for its convenience, that I propose to speak somewhat early because it would be wrong for me to let the debate proceed on a false premise. Of course I do not want to curtail the debate after that.
§ Lord Elwyn-Jones
If I may intervene, perhaps the noble and learned Lord will indicate by leaving his sedentary position when he proposes to do that.
§ Lord Denning
I was a little confused as to the position. I should like to say a word on this Motion that Clause 43 stand part of the Bill. The Court of Appeal is a linchpin in our judicial system, and it is part of our constitution that every citizen who is aggrieved by a decision of a judge of the High Court has a right of appeal to the Court of Appeal.
This provision in Clause 43 starts:No appeal shall lie to the Court of Appeal from a decision of the High Court".941 If my understanding of the constitution is right, and to borrow some words of my noble and learned friend Lord Scarman, that is a constitutional monstrosity. As I said, the Court of Appeal is the linchpin of our judicial system. I sat in the Court of Appeal for nearly 30 years—eight and a half years as a Lord Justice and 20 years as Master of the Rolls. On every Monday morning litigants would come, often in person, to our court. One litigant would complain, for example, that an eviction order had been made and he had to leave his house. He would ask whether he could have an extension of time. An immigrant, or counsel for him, would say that he had been ordered to be deported, or had been refused entry and was being detained. Could he be heard? In every one of those cases I tried to hear each grievance personally with patience, to deal with the grievances and explain to those concerned if they were wrong or what the position was. That was the Court of Appeal when I sat there and I hope the litigants went away reasonably satisfied.
In Clause 43 we are dealing with a system called the judicial review. That is a new name which has come in in the past few years, but it means that under our law as it presently stands the judges have power to correct the abuse and misuse of power by any public authority, whether it be a Government department, the Executive, a tribunal, an inferior court, a local authority or whatever public authority it may be. An aggrieved person can come before the High Court judge to ask for leave to bring that body before the court to see whether there has been any misuse of power. That procedure depends on leave given by a judge. That is the important point; and in my time, if that was refused, there has always been an appeal to the Court of Appeal.
Let me explain how this new judicial review has evolved. During the First World War—which not many of your Lordships will remember now, but I do—government interfered more and more with Ministers' powers on the regulations for this, that and the like, food control and everything else. There was the Henry VIII clause which said that their decisions were not to be invoked or inquired into by the courts of law. After that experience the then Lord Chief Justice Lord Hewart wrote a book called The New Despotism, in which he pointed out the iniquities of the Henry VIII clause. After that Lord Simonds chaired the committee on Ministers' powers which brought to book many of those excesses of government departments.
That was overtaken because during the last World War, as your Lordships will remember, more and more regulations were brought in and more and more powers were given to the Ministers and authorities and when the welfare state came in we had all the tribunals under the national health Acts and the planning inquiries, and so on. There was much disquiet because no one could control the abuses or misuse of power.
At that time I wrote a little book and gave some lectures called Freedom Under the Law and I said that something ought to be done about the matter. The Lord Chancellor at the time did not like it and said that judges ought not to write books like that. I think he has been put up to it by a government department. 942 After that there were inquiries by Lord Franks and Lord Parker. There was a great inquiry into administrative tribunals and inquiries. There was an excellent, first class report saying how everything should be open, fair and impartial. As a result—it was, incidentally, one of the first debates that I attended in your Lordships' House—we had the introduction of the Tribunals and Inquiries Act 1958 which did a great deal to remedy the abuses and misuses of power. That was on the legislative side.
On the judicial side we had our ordinary actions without leave. We could claim declarations saying that these bodies had misused their powers. We were ready and applied that and did not need the leave of any judge, but side by side we resurrected from our old prerogative writs, called in their Latin or Norman French form, certiorari, mandamus and prohibition, a new way of controlling the abuses and misuses of power by all these bodies. It operated simply. I can illustrate this by explaining four of the important leading cases which would never have reached the court if this clause had been in operation.
The first case was important because Lord Parker and I were sitting together in the Court of Appeal where a man, a coal miner, had lost one eye in an accident 19 years before. In a more recent accident he had lost the sight of the other eye so he was completely blind. The medical appeal tribunal, as it read the regulations, said that he was entitled to only 30 per cent. compensation as he was a one-eyed man. The statute said that the decision of the medical appeal tribunal should be final so the judges below said that they could not do anything about that and they said that he should be awarded only 30 per cent. That case came to the Court of Appeal in 1956 and we saw that it was wrong. Lord Parker and I, by a little sleight of hand, got round the decision about it being final. The regulations had been interpreted incorrectly. We immediately gave leave to appeal and immediately decided the case. Roger Winn for the Treasury almost concurred and we gave the man his 100 per cent. because he was a totally blinded man. That was justice. That was the first and the leading case of the series. The judges refused leave; we gave leave to appeal and decided it then and there.
On the next case I was not sitting in so I am not biased. There was a riot at Hull prison. The criminals got onto the roof, threw stones and goodness knows what else. The board of visitors went to the prison and other prisons in England and inquired into the disturbances. They were quite right in finding a number of those men guilty. They deprived them of their 90 days' remission or whatever it may have been, but some of those men said that they had not had a fair hearing. The police and prison officers had given evidence against them, but the prisoners and their witnesses had not been heard in their own defence. There was a judicial review and an application was made for review of the decision of the visitors of Hull prison. In the first instance the court below said, "No, we cannot interfere with the decision of the visitors of the prison". That came before the Court of Appeal. Lord Justice Megaw, Lord Justice Shaw and Lord Justice Waller said that that was not right. These men were prisoners, but if they had not had a fair hearing and their 90 days' remission had been docked then the 943 case ought to be re-opened. It was. Several of those men were released as a consequence. That was another decision where the judge below had refused leave, the Court of Appeal granted it, so, again, justice was done.
There are so many of these cases, but my third case concerns immigrants. There was a young Iranian boy called Kharazzi. He was only 13, but his parents were well-to-do. He had been educated for a time in the United States and they wanted him to be educated in England. The parents arranged for him to go to a public school here, and if he passed his examinations to go on to university, as many of our friends from overseas have done such as Mr. Gandhi, Mr. Nehru, and so on. How good it is that we should have these youngsters from overseas to come as students and experience some of our education and development! The immigration officers said, "No; if he had been going to stay here for only three years, we would have let him in. But this youngster wants to stay for 10 years, from when he is 13 until he will be going to university. As we read the regulations, as he is going to stay more than three years, we cannot give him education". Again, the judge refused leave to appeal, refused him, and said that he had to go. Again, we gave leave to appeal. We heard it straight away and we let that youngster stay on in England for his public school education, and I hope that he has got through his university now. Those are immigration cases.
The last case comes from Canada. I do not know whether your Lordships will remember that the Indians in Alberta were very aggrieved because they said that the Government of Canada were taking away their ancient land rights, land rights which had been guaranteed to them by the King of England. Their land rights were being taken away. They brought their application to question; and they brought it before our Foreign Office to question the constitution. Again, the judge of first instance said, "No, you cannot bring that sort of thing here". Again, we gave leave to appeal. We heard it straight away. It was a most important constitutional case. We gave judgment against the Indians, I am afraid, but what we said in that case, in a way giving merit to their cause, had repercussions right through Canada.
There are just four leading cases which would never have been brought before our court if this clause had operated. They would have ended when the judge refused leave to appeal. Those are just main instances. But, as I told your Lordships at the outset, on Monday mornings we have these applications. For myself, I considered them well worthy of every man's grievance; let it be heard. Many have been immigration cases lately. They had a good grievance, but they often had not the law on their side, although sometimes they had. Surely it is right for the Court of Appeal to listen to the grievance, to explain to them if they are wrong, or to encourage them if they are right; and that is what we have done all through the years.
Then, just to bring it up to date, I would refer to two cases before the Court of Appeal, which were reported in The Times newspaper. One case related to the income tax commissioners—and they, too, are under this control—and the other involved adoption procedure and the social security people. The members of the Court of Appeal, Lord Justice Ackner 944 and Lord Justice Purchas, said, in effect, "Let us keep control of these matters. If the judge decides against the citizen, let there at all events be an appeal to the Court of Appeal".
In that way we have done more over the last 30 years—and Lord Justice Diplock said that. In a way it has been the greatest development in our judicial system whereby we have been enabled to control the misuse and abuse of power by any of the public authorities. If they misinterpret the law, if they decide most unreasonably, if they go wrong in one way or the other, the courts now can have control over them.
There is, or used to be, another procedure. I mentioned it earlier, in regard to a case called Barnard v. The National Dock Labour Board, in, I should think, about 1952. Before we developed this new system, we said that a man could bring an action for a declaration. He could do it without leave. So he had a right to come; and he could come up to us if he liked. That was a reserve power which we used from time to time. But that has been halted, if I may say so—and I do not say that they are wrong—by recent decisions of the House of Lords which said that in every reasonable case the aggrieved citizen ought to go by judicial review and get leave; he ought not to bring an action for a declaration.
One of my colleagues, Sir Patrick Browne, now retired, writing to The Times newspaper, pointed out that in view of this latest development in the House of Lords in a way shutting down almost on actions for a declaration, we should still keep our procedure by judicial review and every citizen who is aggrieved by a decision of a public authority of any description should be able to go to a High Court judge for leave. If that judge refuses leave, he should be able to go to the Court of Appeal and the Court of Appeal ought to be able to do as we always did—decide the matter and do justice by the citizen. This is an essential point to ensure freedom under the law for all our people.
§ 3.15 p.m.
§ The Lord Chancellor
I am sure that we have all listened with very great respect to my noble and learned friend on the Cross-Benches. I intervene at this stage in the debate out of courtesy to the Committee and not in order to curtail the debate in any way; but it would be quite wrong to let the Committee continue on a false premise until it knows what I propose to do. I should like to explain to the Committee, perhaps at a little length, what it is that I propose to do. I must say in passing that some of the things that my noble and learned friend has just spoken require perhaps a little amplification, if not an occasional point of correction.
First of all, let me say that the clause as it stands is my responsibility; I am responsible for this Bill, and it was put forward with my approval. But its origin was the Court of Appeal, the appropriate organ. I now find that there had been insufficient consultation with the Judiciary by the appropriate organ of the Court of Appeal, and there has been fuller consultation since. The result of that consultation is very largely the theme song of what I propose to say to the Committee at this stage.
May I say, too—courteously, I hope—that I have had letters of apology from the two members of the 945 Court of Appeal to whom my noble and learned friend referred. They should never have said what they said from the Bench, and they have both apologised to me. Let me say that what they said was improper. Most of the work of the Lord Chancellor consists of preserving the independence and impartiality of the Judiciary. It is perfectly legitimate for the Judiciary to criticise the state of the law as it is and to draw the attention of Parliament to the state of the law as it is in order that it may be improved. They do it quite often and, speaking for myself, I not only always pay attention to it, but sometimes, and usually, try to persuade my colleagues to pay attention to it, too—which is not always quite as easy.
But this is the High Court of Parliament, and when a matter is passing through Parliament it is utterly improper in my judgment for a Court of Appeal judge or any other judge speaking on the Bench to criticise matters passing through Parliament. Of course, we in the House of Lords do not stand on our dignity, and no harm whatever has been done by what has been said, as I shall perhaps proceed to show. But if it had been done while the Bill was passing through another House, we might have found another Stockdale v. Hansard on our hands. So I hope that this will never be done again.
I proceed from that moment. The Court of Appeal, which is of course the total creature of statute and therefore derives its jurisdiction solely from statute, is an appellate court. It is in fact the focal point—I would not have described it as the linchpin, but that is a matter of semantics—of English law. The House of Lords has an indispensable appellate function, because it is the only court which deals with all three jurisdictions in the United Kingdom and also because it is the only court which can deal with errors of law in appellate courts from these three portions and can reconcile them, all three. That is a very large part of its work.
But the Court of Appeal is the focal point of the jurisdiction in English law. We cannot do without it. Unhappily, the volume of work has been steadily increasing and had, by the time the noble and learned Lord left his distinguished position as Master of the Rolls, reached almost crisis proportions. There were, at the date when he left the position of Master of the Rolls, over 1,100 cases awaiting hearing and one of the heroic tasks of the present Master of the Rolls has been to try to reduce that number in the face of an ever-increasing burden of work. He has in fact done so, although, owing to the heavy and increasing burden of work, he has not got it much below 900 cases awaiting hearing at the present time. He has done so by a number of means, in which the Government have played some part, but in the main it has been done by the Court of Appeal itself.
We have increased, with the consent of Parliament, the number of Lords Justices from 18 to 21. We have changed the position as regards leave to appeal in all cases within the lower half of the county court jurisdiction and we have insisted on leave to appeal being obtained. That, I may say, is done by a single Lord Justice. We have established the new post of Registrar of Civil Appeals and we have enabled all county court appeals to be dealt with by two-judge courts—not a decision which personally I found easy but one which 946 has proved a success because in the case of disagreement the unsuccessful party can insist on a hearing before a three-judge court: that is the full complement of a Court of Appeal.
I come now to the second general background position, which I should like to describe: the process of judicial review. This has been a very remarkable development of English law, mainly since the war, although I think there were traces of its beginning before. It is entirely judge-made law and it does cover now almost every kind of administrative review of lower authorities. If I had been speaking in 1938 I think I should have said, almost certainly, courts of lower jurisdiction. It now covers every kind of authority, including the highest Ministers of the Crown.
This is, in my opinion, a beneficent jurisdiction and I would not seek to interfere with it at all. But it is not an appeal; it is an application for judicial review, which is allowed on very few and limited grounds of impugning the decision of the inferior authority. They were conveniently summarised in a very recent case by my noble and learned friend Lord Diplock. There were four grounds: excess of jurisdiction, mistake of law, failure to observe the rules of natural justice, and I think what are called "Wednesbury grounds", which means that no properly directed authority could have come to the decision impugned.
It is manifest that such a jurisdiction requires some kind of a sieve. When I was last in India I think I was told that the appropriate court there was swamped with 250,000 cases of this kind a year, and when I have been in the United States of America I have been told that the Supreme Court of the United States is finding a very similar problem. In this country we have a sieve. It consists at the moment of a single judge of the Divisional Court in the Queen's Bench Division, who either gives or does not give leave to appeal. And the question to which we have to address our minds is to what tribunal there should be recourse in case the single judge is wrong.
Up to and including 1966, when the first reported case took place—although I understand the practice had grown up during some years before—the Court of Appeal entertained appeals from the refusal by the Divisional Court to give leave to proceed for judicial review. Whether it had at that time any jurisdiction to do so I will not discuss, because the practice has now developed into a custom. What it certainly did not have—at least in my opinion—was the right to hear the substantive case on its merits. Having given leave to proceed, it ought to have sent down to the Divisional Court the matter to be heard on its merits. In fact, it assumed jurisdiction on its own, without, so far as I know, any statutory authority to do so at all. For that, for right or for wrong, the Court of Appeal must take full responsibility.
That was the situation up to and including part of 1983, that is to say, two years ago. It was then realised that the proper course to follow was for the Court of Appeal, then sitting in a court of three judges, to give leave to apply to proceed, and then to remit the case down to the Divisional Court, which was the only court having proper jurisdiction to hear the merits. So, as I understand it, there have been only two more or less complete years in which the proper procedure has been followed.
947 In passing, I must say that, although many appeals to the Court of Appeal are heard by two-judge courts, this form of appeal requires a three-judge court and not a two-judge court, as matters stand at present, and it represents a whole month of time by a three-judge court. In the two years in which the proper procedure has been followed, which are 1983 and 1984, there were, I think, 27 appeals which would have been affected by this particular procedure in all in the first year and 37 in the second year. I think I have got my figures right but I may have lost my place and so I may be wrong in one or two places, but I think I am absolutely right.
In the first year, there were 27 such appeals. Three were so unintelligible that the court made no order at all. They did not know what the applicant wanted and they made no order at all, the effect of which was to dismiss it. In 21, the appeal was dismissed. The remaining three were allowed and not one of those resulted ultimately in being heard successfully on its merits. I think that one was withdrawn and two were dismissed. So there was a total failure, so far as I know, of a successful application on the merits. That was in 1983.
In 1984 there were, I think, 37 applications to the Court of Appeal against a single judge. Of those, two are as yet unheard and therefore sub judice, and I will say no more about those. Of the remainder, practically all were rejected, but of those that were not rejected all were either dismissed or withdrawn. So you have a total failure rate, except for two cases which are still pending and which may result therefore, in theory, either way.
I may say in passing that that is a very remarkable set of statistics, because the ordinary kind of figure when an appeal system is working effectively—that is, when you can say with confidence that the court from which appeals on the merits are made and when the Court of Appeal is working effectively—is that something like one-third of the appeals succeed. Here we have a figure of over 60 where not one has so far succeeded and only two can. I have the exact figures here. I was looking at the wrong page. Of the 37 in 1984, 29 were refused, four were allowed and the other four were withdrawn or dismissed by consent. Of the four in which the Court of Appeal granted leave, and in which the case was accordingly, under the new practice, remitted to the Divisional Court for substantive hearing, one has subsequently been dismissed, another has not been proceeded with and, as I said, the remaining two are still pending, so I was fairly accurate in what I said from memory.
That, as I said, indicates that a situation has arisen which really takes up a three-judge court of the Court of Appeal for a month at a time, when the situation in the Court of Appeal is as serious as I have stated it to be; and this is the focal point of English justice. I can only say—quoting again from my noble and learned friend, but not I think from the speech which he made this afternoon—that justice delayed is justice denied. The delays in the Court of Appeal are a matter of very great concern indeed. I move on from there to look at the merits of the case—
Lord Paget of Northampton
May I ask one 948 question? I do not know whether the noble and learned Lord has any figures at all which would indicate what has been the cost to the litigants of these somewhat futile appeals. It must have been something tremendously big.
§ The Lord Chancellor
I would agree with the noble Lord, Lord Paget, but the direct answer to his direct question is: No, I have no estimate and no figures, but it must have been a very high cost. But what is even more alarming is that the Court of Appeal has been prevented from carrying on its proper work. To indicate the kind of pressure that it is under, my recollection, which may be wrong, is that when I first went to the Bar the Court of Appeal in its civil jurisdiction—it did not then have a direct criminal jurisdiction, because there was another court called the Court of Criminal Appeal—just after the war or during it, sat in three courts. They took over the old Bar reading room.
In 1984, the pattern is this. For four weeks it sat in six divisions, for 25 weeks it sat in seven divisions and for 11 weeks it sat in eight divisions. Many of these cases had to be taken with the court consisting only partly of Lords Justices and, in very many cases, with only two, and when it comes to be taken by less than three Lords Justices, the remaining judge is either a retired judge or, more probably, a judge of the High Court.
That is the situation with which we have to deal, and it was in that situation that, from the appropriate source, I received the suggestion that, when leave to proceed in the judicial review had been refused by the single judge, that should be considered final. It was put before me in a form in which I thought the suggestion was uncontroversial—a matter in which I was clearly mistaken or misinformed. I therefore put the matter back to both the Divisional Court and the Court of Appeal as soon as I saw that controversy had been aroused by this, and I have an answer which indicates that what I am about to suggest is the right way out of the problem.
It is quite clear that if a single judge refuses leave to proceed there ought to be recourse. I think everybody will accept that. On the other hand it does not follow that there ought to be recourse to the Court of Appeal and then the case remitted back to the court of first instance to be tried on the merits. I am authorised by the Court of Appeal to say: "We would not oppose Clause 43, provided that there was a built-in mechanism enabling a refused applicant to renew as of right his application to a Divisional Court of two or three judges as appropriate, presided over by a Lord Justice of Appeal".
My view is that they are right in making that suggestion to the House and that this is a suggestion of which I can heartily approve myself. The reason which moves me particularly is that there is an exact analogy, or an almost exact analogy, in the criminal jurisdiction, as the noble and learned Lord opposite will know. If leave to appeal in certain circumstances is refused by the single judge, the application can be renewed to the complete court, and the proviso that it would be presided over by a Court of Appeal judge—which means, of course, either the Lord Chief Justice or a Lord Justice of Appeal—ensures that, 949 virtually speaking, there would be a three-judge court composed, as the Court of Appeal court very often is, of a judge of the Court of Appeal plus two puisne judges. I cannot for the life of me see why in civil matters there should be an advantage over criminal matters and my own view, for what it is worth, is that this is a perfectly valid suggestion which ought to be seriously considered by the Committee.
The Committee cannot consider it this afternoon for the very simple reason that I have not put down an amendment, and I have not done so to my regret, but I think without doubt I was right, for two reasons. One is that I was authorised to say this only yesterday. I had myself protested in the last meeting of this Committee against late amendments and I thought that I must not err in that respect myself. The second was that I do not think I could have got it drafted in time to get it down, even within the rules of order as they are. I suggest with great respect to the Committee that, having heard the very eloquent speech of my noble and learned friend Lord Denning, and having heard the very careful thought which I have given it and which the Court of Appeal has given it, we should consider it again on Report, when I shall have by that time an amendment giving full recourse to a court of the kind that I have indicated, and I hope that will solve what is admittedly a difficult problem.
§ Lord Scarman
May I ask a question of my noble and learned friend? Does this mean that the Government will not be opposing the Motion this afternoon; that Clause 43, as at present drafted, does not stand part of the Bill: and that we can leave the rest of the debate until such time as a new Clause 43 is proposed?
§ The Lord Chancellor
What it means is what I read out from the Court of Appeal; namely, that the present Clause 43 requires drastic amendment so as to provide for recourse to a fully constituted Divisional Court of which the president would be a member of the Court of Appeal. That is what it means. I was paraphrasing, but the actual phraseology which I used before was read from a document.
§ Lord Bridge of Harwich
I am sorry, but I simply do not understand. Are we going to be asked to say this afternoon that Clause 43, as it stands in its present nakedness, should stand part of the Bill, or are we not?
§ The Lord Chancellor
It would of course make no substantial difference either way; but as I was going to amend the existing Clause 43, and as the formula which I read out indicated that Clause 43 in its present form but with the amendment was the one which the Court of Appeal would not approve, it seemed to me far more reasonable that we should postpone this discussion by leaving this matter undivided upon until I had had an opportunity of revising and amending the clause. That can be done at Report stage. The House will then have complete jurisdiction over the future of the clause in whatever form when that happens.
However, if my noble and learned friend wishes to insist that the clause be deleted because it is not acceptable in its present form, it will make no practical difference at all, apart from the fact that what the Court of Appeal has agreed to in the form in which I 950 read it out implies that Clause 43 stands part of the Bill but is drastically amended; and that is what I was suggesting. But if the Committee prefers the alternative, I am perfectly prepared to take either course because it will make no difference whatever in the end. We shall have to discuss the amended clause if I put it down—which I shall—and it will be amended in the form to comply with what the Court of Appeal thinks reasonable.
§ Lord Hooson
I am most grateful to the noble and learned Lord. As he is not trying to support the clause in any way now as drafted, is there any advantage in it remaining part of the Bill? Surely on Report stage, if this clause, as drafted, does not remain part of the Bill, he is entirely free to bring in a new clause.
§ The Lord Chancellor
I do not want to be accused of bad faith in this matter at all. If I bring in a new clause, and it contains a substantial part of the clause as it stands in the Bill, I do not wish to be accused of bad faith. I have explained, I hope with the very greatest clarity, what I propose. How we do it is a pure matter of procedure in which I would be very much guided by the feeling of the House.
§ 3.45 p.m.
§ Lord Campbell of Alloway
May I try to assist my noble and learned friend? There is no question of course of any suggestion of bad faith; but if, as my noble and learned friend the Lord Chancellor has just said, in substance Clause 43 would have to go—and it has to go because there is a right of recourse, there is a Divisional Court sitting with a Court of Appeal judge, and there is no recourse at all under the clause as it stands—would it not be much simpler, to save time today, if this clause were excised? Then we can start off again, of course accepting everything my noble and learned friend says, considering the new clause on its merits. I am not very good on procedure, but what is the objection to this going out of the window today?
§ The Lord Chancellor
I think what my noble friend has said exactly illustrates the point which I was trying to make to the noble Lord, Lord Hooson. It is of course true that the clause radically amended would reappear under either proposed procedure; but it will still stop at the Divisional Court if the formula that I have read out is ultimately accepted by the House on Report. I ought to have added that when the case comes on, if it does come on, on the merits, there will be, as there is now, and as there was not before 1966 when the Court of Appeal assumed total, unlawful jurisdiction, a further recourse to the Court of Appeal if the Divisional Court turns the matter down on its merits.
But the point that my noble friend made illustrates the point that I was making to the noble Lord, Lord Hooson: as long as it is perfectly clear that I am not guilty of bad faith, if I reproduce this clause in the form in which the Court of Appeal said it would approve it, I am perfectly willing to let this Motion be negatived now. This makes no difference to me; but I shall not in any circumstances be accused of bad faith or misleading the Committee.
§ Lord Elwyn-Jones
There was one observation of the noble and learned Lord, that was accepted by the Committee. That was the proposition that, if a single judge refuses leave to proceed, there ought to be recourse to appeal. Clause 43, as it stands, is a total negative and challenge to that proposition, and we must begin by forgetting about Clause 43. If I may say so with great respect, one wonders how anyone brought it to the Marshalled List, bearing in mind that in regard to the procedure of judicial review, it starts with a number of proper restrictions.
In the ordinary course, a litigant seeking to bring his claim before the court can do so. He does not need leave. Vexatious litigants can be proceeded against. He gets to the court. But here there is this preliminary sieve. It has to go to a judge. In itself is a breach of a somewhat basic constitutional principle that he has to do that. However, to prevent overcrowding of the courts, that was the arrangement that was agreed to. But that made all-important the right thereafter, if the attempt of the litigant failed, that he should have a right of appeal. The proper body to take such a right of appeal is the head appellate tribunal on the civil side; namely, the Court of Appeal. Whether it is called the linchpin or whether the alternative language of the noble and learned Lord is used with regard to its importance in the set-up of the courts matters not: that is the place to which it should go.
The noble and learned Lord, if I may say so with great respect, has not explained how it was that this came before the Committee in its present form. That is very surprising. It could not have hoped to survive. The best way to proceed now, rather than to inflame passions and possibly even anger, is for us to be shot of Clause 43. I think that that will facilitate proceedings a great deal. The willingness of the noble and learned Lord the Lord Chancellor to do that will be a reflection of his wisdom and his sense of the opinion of the Committee, as I suspect it to be. Otherwise, we shall have to test it.
I am not suggesting bad faith at all, but I am suggesting grievous error of judgment on the part of whoever was responsible for putting Clause 43 forward as it stands. It cannot stay; it must not stay. Indeed, the noble and learned Lord has said so almost in terms. But now it is hoped that, in due course, by the time we reach Report stage, this matter can be rectified with an adequate and full right of appeal. I suggest that the only proper and acceptable one is to the Court of Appeal. We are dealing here, as the remarkable speech of the noble and learned Lord, Lord Denning, indicated, with an area of great importance to the individual and to the rights of the subject. More and more is the law encroaching upon the rights and freedoms of the individual subject. More and more, therefore, is the need that he should have adequate remedy—if I may say so, in the particularly British and judicial way that this has been remedied—through the courts themselves. In these circumstances, in my submission the case that has been made against the continuance of the present arrangement is inadequate; the case is not made out.
I am bound to say that I found it difficult to follow the statistics of the Court of Appeal having to sit for three months at a time when only 37 cases came before it, and apparently the vast majority of them 952 were pretty dud, if what the noble and learned Lord has said is right. The case for interfering with this important principle in the context of cases coming up for judicial review has in my submission not been made out. We have seen the kind of cases that are affected: the rights of a prisoner in prison; the rights of a denied person who is injured at work; the rights of the injured citizen in various ways; and, of course, the rights of the immigrant—all at the moment having the protection of the machinery of judicial review, the judge and the Court of Appeal as a source of resort.
I hope, therefore, that the noble and learned Lord will not run against what I apprehend to be the feel of the Committee in being unwilling at this stage to agree to the withdrawal of Clause 43 and by insisting upon his Motion that Clause 43 stall stand part of the Bill.
§ Lord Denning
It seems to me that this alternative proposal by my noble and learned friend the Lord Chancellor is useless, in this way. It would still remain on the statute book. There is to be no appeal from the Divisional Court to the Court of Appeal. Again, we come back to the same thing. I would ask this Committee to require either that the clause be expunged altogether or that we should take a vote on it.
§ Lord Rawlinson of Ewell
I fully accept the undertaking given by my noble and learned friend the Lord Chancellor. I believe that he has been put in an impossible position. He has been put in this impossible position because he has been asked to put this into the Bill (presumably by the present Master of the Rolls) in order to alleviate some of the work which is imposed upon the Court of Appeal. I fully appreciate that the noble and learned Lord cannot give that explanation, as it were, but that is what I suspect. This has been forced upon him and he has been put in this very unfortunate position.
As every single Member of the Committee who has spoken has said, this is the most important judicial area that exists today, and the noble and learned Lord is the first to acknowledge it. During the 1960s he and I were seeking ways to try to improve the administrative law functions of the court. This is something which affects the individual and affects the citizen. It is the most important task that the Judiciary has. In those circumstances, the fact is that the Court of Appeal has this power and, I should have thought, is the right authority to have the power. If the Court of Appeal is so overburdened with work, let us make more Lords of Appeal.
At the present time the noble and learned Lord the Lord Chancellor is forced temporarily to employ retired judges in order to help in the Court of Appeal; but it is our duty in Parliament to ensure that there are sufficient judges to carry out the judicial work. I think it is unfair on the noble and learned Lord that he has been forced into this present position. I must say, though, with great respect to him, that this is the role of the Court of Appeal in this particular function. I do hope, therefore, that he will consent with the grace for which he is so well known to the fact that this clause should not stand part of the Bill.
§ The Lord Chancellor
I am very grateful to my noble friend who has just spoken, both for the friendly tone he used and also for some appreciation of the difficulty under which I am labouring. But the fact of the matter is that I said at the beginning of my speech that Clause 43 in its present form would not have appeared in the Bill without my consent and approval. It was put before me from an appropriate source. I do not think I ought to go further into the matter than that; I think I should be guilty of a breach of faith if I did. I would only say that I will put forward at Report a proposal on the lines I have suggested. As a matter of fact, it will not necessarily matter very much in what form I put it, but I will put forward before the House a proposal on the lines I have suggested. The only reason why I hesitate to say that the particular Motion before the Committee might be misunderstood is that it is very important indeed that in doing this and in saying this I should not he accused of a breach of faith.
Furthermore, I say to my noble and learned friend Lord Denning that it is better not to inflame feelings at the present time. I think he was a little hasty and possibly even a little unjudicial in saying that what was suggested—what I suggested in good faith—would not be acceptable when we had not even tried to argue it on either side. I would suggest both to the noble Lord and to my noble and learned friend that we can act in either way according to the sense of the Committee. There can be no Division if I do not call one. So to that extent I can have my way, whatever happens. Do not let us get excited about it. So long as I shall not be accused of breach of faith, on the one hand, and, on the other, I am not pressed as to how in particular the clause in its present form came to be proposed, I say in reply that the contents of the Bill are my responsibility and mine alone. I shall not be pressed or yield to pressure any further than that.
§ Lord Elwyn-Jones
Perhaps I could put this point to the noble and learned Lord. If the Committee should decide that Clause 43 should not stand part of the Bill, that would not prejudice a decision by the Government to bring forward at the Report stage of the Bill some method of dealing with the problem that has been ventilated.
§ The Lord Chancellor
I think that that sounds all right as far as I am concerned, and I hope it satisfies the noble Lord, Lord Hooson, and my noble and learned friend on the Cross-Benches.
§ Lord Hooson
May I say—I am sure that I speak on behalf of the whole Committee—that there is no question of the good faith of the noble and learned Lord the Lord Chancellor being impugned. If the clause is no longer part of the Bill and the noble and learned Lord brings forward a new clause, surely that will be considered on its merits.
§ Lord Campbell of Alloway
As my name is also to this Motion, may I reiterate from across the Floor of the House that there is no question of bad faith. But by my book, this clause must go. As long as it goes in one form or another, and we can come back to discuss quite calmly on its merits whatever is put before us at a later stage, then I will be more than content. I hope 954 that my noble and learned friend the Lord Chancellor will be content on the basis of the form of assurance given by the noble and learned Lord, Lord Elwyn-Jones.
§ 4 p.m.
§ Lord Scarman
May I pour a little oil on these troubled waters, without setting fire to the surface of the water? I am perfectly prepared—and the noble and learned Lord the Lord Chancellor will know that all persons in my position will be perfectly prepared—to maintain an open mind on the proposed amendment which the noble and learned Lord the Lord Chancellor has sketched, until such time as we see that amendment drafted and can consider it.
I am aware of the power of the arguments developed by the noble and learned Lords, Lord Denning and Lord Elwyn-Jones, and by myself elsewhere—the argument that this is Court of Appeal work. It may well be that we can look at a compromise where there is a Lord Justice invariably presiding over the court which reviews the grant of leave to proceed, that leave having been refused.
What I am proposing to say is not intended in the slightest degree to reflect on my personal decision to keep an open mind until I see the amendment of the noble and learned Lord the Lord Chancellor. Having said that, it really is quite impossible, on the run of the argument, to say to those of us who have taken the view that Clause 43 as at present drafted must not remain in the Bill that it should remain in the Bill. We really cannot do that. It may only be a matter of tidyness, but it is a matter of the good order of transacting the business of this House that a clause which the noble and learned Lord the Lord Chancellor has argued with beautiful persuasion is a thoroughly bad clause should go.
§ The Lord Chancellor
If that is the wish of the Committee, let it be so—as long as my position is retained intact.
§ Lord Henderson of Brompton
Further to what the noble and learned Lord has just said, in view of the complication of this matter, and in view of the fact that the noble and learned Lord the Lord Chancellor said that he would have brought his alternative clause before the Committee but was unable to do so for the reasons which he gave, would he not agree that when he brings his new clause forward, this clause should be recommitted? Unless it is recommitted, the House will not have the freedom it ordinarily enjoys to discuss it.
§ The Lord Chancellor
I do not see any virtue in recommittal. I must say that I far prefer the formula proposed by the noble and learned Lord opposite, and I propose to stick to it.
§ Clause 43 negatived.
Lord Mishcon moved Amendment No. 49:
After Clause 43, insert the following new clause:—
§ ("Reimbursement of costs incurred by reason of death or incapacity of judge.
§ Where in any proceedings—
- (a) in the High Court or a county court or
- (b) in the civil division of the Court of Appeal in which the court consists of two judges,
The noble Lord said: I feel very much like a preacher mounting the pulpit and noticing that the whole of his congregation thinks the service is over. But the amendment I have to put before the Committee now is a very serious amendment. It so happens that back in 1981—to be precise, on 26th March, 1981—I had the privilege of moving an amendment to the Supreme Court Bill, which said this:
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".
§ That amendment appears at col. 1318 of our proceedings for the 26th March, 1981.
In that very broad way, I said then that a litigant ought to be compensated in circumstances over which he had no control—that is to say, when one of the essential judges in the Court of Appeal, or the judge before whom the case was occurring at first instance, had the misfortune to pass away. The noble and learned Lord the Lord Chancellor listened to the argument with his usual care, as one notices he did in the immediately preceding amendment on this occasion. He said then, among other things, and I hope that I am not being unfair in quoting only a couple of sentences:
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 it can be this evening.".—[Official Report, 26/3/81; col. 1320.].
§ With the passage of time, the Committee is fortunate that the noble and learned Lord the Lord Chancellor is still sitting where he is now, and still sits on the Woolsack as well. There are many of us who hope that that situation may continue for quite a long time—subject of course to the result of any general election.
§ Having said that, and money being the main argument that the noble and learned Lord advanced on the last occasion, and the question of priorities, I wonder whether the noble and learned Lord—who also raised the question of the limitation that there ought to be in any such amendment, in any event to the courts that would be affected—would consider this. First, we have in this amendment limited the tribunals which would be affected in regard to this compensation. Secondly, does not the noble and learned Lord think that public expense would not occur in any way which would be inimical to the policy of the Government to economise? Quite obviously, this provision could well be covered by a very small increase in stamp duty on writs and other court documents where that has to be charged, in order that there could be an insurance premium paid to cover all contingencies.
§ It is unjust that a litigant in a very heavy case should be called upon to pay some very large insurance premium to ensure the continued existence of the 956 tribunal before whom, by complete chance, he appears, I say "by complete chance" in regard to personnel. And if he has not insured then, even in a short case, the resultant costs to a litigant of moderate means would be extremely great. There has been a passage of time. The noble and learned Lord has had an opportunity to be the very person that he thought his successor might be, in agreeing to put right this injustice. I beg to move.
§ Lord Denning
Several of us have had experience of this kind. For example, Mr. Justice Fraser died soon after the beginning of a case. A great deal of money had been expended uselessly through no one's fault. In principle, as it was neither side's fault, the costs thrown away ought to be paid by central Government. I suppose that what happens at the moment is that it depends on who wins the case, and the loser has to pay all the additional expenses. There are arguments both ways, but I hope that the noble and learned Lord the Lord Chancellor will consider this amendment because it would seem to be only fair that costs wasted through misfortune and not through the fault of either party should be borne by central Government.
§ Lord Campbell of Alloway
I support this amendment. My noble and learned friend Lord Rawlinson will be aware that he and I are engaged against each other in a case where there has been a substantial adjournment because the judge fell ill. Fortunately the learned judge has recovered and we shall be able to resume the case. However, this kind of thing happens far more often than one realises. Without going into details of the case, which is pending, I would say that it is a poignant example of what can happen. I believe that this is a matter which warrants attention and I therefore support the amendment.
I hesitate to disagree with noble Lords who have already spoken, but I find this amendment both preposterous in principle and wholly unnecessary in practice, for the simple reason that any litigant has an insurable interest in the trial judge, his health and his life. The noble Lord, Lord Mishcon, suggested that this is expensive, but that is just not true. My figures show that it can be as little as ½ per cent. If the additional costs of a retrial come, for the sake of argument, to £100,000, the premium would be £500 which, in the scheme of things, is very little indeed.
When one considers that poor old Joe Public, the taxpayer, is providing to the litigant, free, gratis and for nothing, the distinguished services of a learned judge, I cannot understand why, if that judge gets the attention of an even higher authority or finds he has to spend a considerable time in bed with 'flu which necessitates a retrial, that burden should be passed to the taxpayer.
The hypothesis that the noble Lord, Lord Mishcon, would not advise his clients to insure against such an insurable risk is, I suggest, nonsense. If a friend of mine told me that he had instructed the noble Lord, Lord Mishcon, in a lovely, expensive piece of litigation and the judge subsequently fell off his perch, and my friend also told me that the noble Lord, Lord Mishcon, had not advised him to insure against the possibility, I 957 would, with a certain amount of alacrity, and no little pleasure, say, "sue him", because insurance is the accepted procedure. It happens every day. For those reasons I think that the amendment is preposterous in principle and wholly unnecessary in practice.
§ 4.15 p.m.
§ The Lord Chancellor
I am glad to have been reminded of our former exchange on this matter. It is nothing like as easy as either the noble Lord, Lord Mishcon, whose polite words flatter me beyond my deserts, or my noble friend seem to think. I must make a general observation which is intended not only for this amendment but also for others which may or may not come forward during this stage of the Bill or on Report. I hope the Committee will realise that one gets a slot in the legislative programme from one's colleagues with very great difficulty. I obtained my slot in the programme for this miscellaneous bag of useful or useless reforms, according to what view one takes of them, on the understanding that it would not cost the Government additional money. Therefore, I cannot in all good loyalty to my colleagues impose on them additional expense simply because the Long Title of the Bill and the scope of the Bill enable everybody with a bright idea as to how to spend the taxpayers' money to come forward with a plausible plea. I do not specifically refer to the noble Lord, Lord Mishcon, and this amendment when I say that. I am acting under very considerable restraint—perhaps constraint is the right word.
I must first point out, as has my noble friend Lord Morris, that this is a very readily insurable risk. I must also add that it is not the only risk that one runs in litigation. The trial may go off or be postponed at enormous expense for various reasons and for which nobody can be held responsible, particularly if there is only one counsel. Counsel may fall ill or die in the middle of the trial. The principal witness may be ill and unable to attend. Various other misadventures might happen which would render necessary an adjournment at very considerable expense, and possibly a totally new trial. That would cost the litigant a great deal of money, through nobody's fault.
The actual "death or incapacity", as I think is the phrase in the amendment, of the judge is not the only misfortune of this kind which can afflict the parties. Therefore, in a sense, to pick out this one misfortune and say that it ought to be paid for out of central funds does not meet the real nature of the case. The noble Lord, Lord Mishcon, adverted to the fact that I could raise money by obtaining a small sum out of all litigants by putting up the already very high court fees or the fees on the issue of a writ, or whatever. That is a perfectly true and valid point. The question for consideration is whether or not that is a fair way of proceeding, or whether it would not be better that litigants who have a long trial ahead and who therefore run a tangible risk should themselves insure, as suggested by my noble friend Lord Morris. It would be perfectly possible to meet the costs in that way.
I must also disclose to the Committee, without, I hope, inciting the public to undue greed, that it is the 958 case in some instances of this kind that an ex gratia payment is made by the Lord Chancellor's office. Therefore, it may be possible that the noble Lord, Lord Mishcon, has something when he says that it would be better put on a statutory basis, in which case I should have no option. Equally, the Treasury might be at greater risk.
Incidentally, the amendment itself is defective, so I am told, and cannot be accepted in its present form. We would need to provide for some form of taxation to cover the costs incurred. I am told that there are other points in the clause as it stands which might need further thought. I think that it might be worthwhile for me to say that I will consider this matter again, if I am given a little more time. We need not quarrel about it at this stage, although we may have to later.
§ Lord Mishcon
As a matter of courtesy I should like to put the record right in the Official Report. I was, of course, addressing my remarks to the noble Lord, Lord Morris, and I misnamed him. I apologise: no discourtesy was intended.
There are three quick points that I wish to deal with. First, the noble Lord, Lord Morris, says that this is a very easily and economically insurable risk; which means that the wizards of the insurance market have worked out that this is a very small risk indeed which can be covered, one imagines, by a very small sum.
I now come to the next point of the noble and learned Lord the Lord Chancellor, who spoke in moving terms, as he always does, about the battle that he has with his colleagues in order to get a little niche for the very worthy Bills that he brings before the House. He is a wonderful advocate. I do not think that he has to exercise much of his power in order to bring this kind of Bill before the House. I should have thought that with his persuasiveness, and with a very small sum involved, he would be able to persuade his colleagues that he was in no way guilty of a breach of faith if this small amendment were passed.
If it is a very small insurance premium for the individual litigant, it means that the cost by way of an addition to any court fee would be minimal in regard to each individual case. The case cannot be argued both ways. Therefore again we are not dealing with a large public administrative burden at all.
The third and last point is that the noble and learned Lord, with his usual debating skill, points to the fact that other misadventures may happen to a litigant. Indeed, a witness may die or be ill, and there may be adjournments, but those are the ordinary risks that are run in the course of litigation over which one party or the other does not have control, but he regards that as a matter which is involved, as it were, in the litigation.
It is the state, through one of its great arms—that of the Judiciary—which puts before the litigants a judge, and that is a matter of administration over which he has no control at all. In those circumstances, if a judge happens to fall badly ill or happens, unfortunately, to die, that is a matter which falls out of the risk of litigation. I should have thought that this is an amendment the principle of which ought to be agreed.
The noble and learned Lord tells the Committee that this is done on an ex gratia basis, and he was fair enough to say, "Well, the argument exists". If it is 959 done on an ex gratia basis, why not put it in the statute and give the right? That is a very strong argument which he has allowed me to use, the origin of which is in his own mind and was in his speech.
If the noble and learned Lord will say that the principle appeals to him and that at a later stage in this Bill, with a far better drafted clause, the Government will come forward and say that the principle is admitted, of course I shall be delighted to withdraw. But if the noble and learned Lord is really saying that, as a matter of courtesy, he will consider again the arguments advanced but he offers little hope unless your Lordships express your opinion, I may have to adopt an alternative course. I hope that he will give me the chance of withdrawing by saying what I have asked him to say.
§ The Lord Chancellor
I think it is really betwixt and between. I cannot say—and I am not free to say as of now—that the principle is admitted. I have said that it will be considered, and I hope in a friendly spirit, because I have tried to show a friendly spirit. I have also said that in its present form the amendment cannot be accepted because its drafting is defective. Therefore the noble Lord, with full honour retained, is perfectly at liberty to produce his amendment or an improvement on it next time, if I do not come forward with an amendment of my own. But I would rather urge him not to have a Division now. He might find himself worse off if he loses it than if he withdraws the amendment now.
§ Lord Mishcon
I shall not cross the noble and learned Lord by estimating the number of votes that might be obtained either way. I much prefer to adopt the dignified course that he made available to me. On the understanding which I think can readily be seen from a perusal of the report, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 4.15 p.m.
Lord Hutchinson of Lullington moved Amendment No. 50:
After Clause 43, insert the following new clause:
§ ("Determination of points of law of exceptional public importance.
§ .—(1) This section shall have effect for the purpose of facilitating the determination of points of law of exceptional public importance arising in cases proceeding in the High Court, the civil division of the Court of Appeal or the House of Lords.
§ (2) A party to any such proceedings may at any time after the institution of the proceedings in the High Court apply to the Attorney General for a certificate—
- (a) that the proceedings involve a point of law of exceptional public importance which it is desirable in the public interest should be clarified; and
- (b) that it is expedient that the costs of the parties to the proceedings, to such extent and from such a stage in the proceedings as the Attorney General may specify in his certificate, should be paid out of public funds.
§ (3) An application for a certificate under this section shall be supported by such documents and other information (including the opinion of counsel) as the Attorney General may require.
§ (4) If it appears to the Attorney General that a point of law such as is mentioned in paragraph (a) of subsection (2) is likely to arise in the course of the proceedings but that the questions at issue are not capable of being identified with sufficient particularity until an appeal is brought to the Court of Appeal or the House of Lords, 960 as the case may be, he may issue a certificate limited to the costs of the parties in the Court of Appeal and the House of Lords or in the House of Lords alone.
§ (5) The Attorney General shall in his certificate specify—
- (a) the basis on which costs payable out of public funds are to be determined; or
- (b) the maximum amount payable out of public funds to each of the parties to the proceedings.
§ (6) Where the Attorney General has refused to issue a certificate on an application made under this section, a further application may be made at any later stage in the proceedings if it appears to the party making that application that there are grounds justifying the issue of a certificate which were not available or which could not be relied upon at the time of the previous application or applications.
§ (7) The Attorney General shall issue a certificate under this section in every case in which it appears to him that the conditions referred to in this section are satisfied and the costs of all parties to the proceedings shall be paid out of public funds in accordance with the certificate.")
§ The noble Lord said: I rise to move this amendment and to seek to add with some temerity to the mixed bag of provisions in this Bill. The purpose of this provision is to enable certain certified cases in the High Court, the Court of Appeal and the Appellate Committee of this House to be litigated at public expense on one criterion alone, and that is the public interest.
§ From time to time opportunities arise to clarify the law—the law which may affect people's rights in one way or another—by a judicial decision. It is a method which, if available, if far swifter and surer than resorting to the more cumbersome and long delayed process of reference to the overcrowded legislative machine. It is a method also, of course, which is free from political considerations and pressures.
This amendment would give a party to the proceedings in which he was involved the right to apply to the Attorney-General for a certificate in the terms of subsection (2)(a) and (b) in the amendment. The new clause enshrines the essence of a recommendation made as long ago as 1953 by the Evershed Committee. That committee, as all the lawyers in this Committee will know, was one of great distinction which was set up to review the practice and procedures followed in the Supreme Court, with a view to reducing the costs of litigation. It was asked specifically:
to consider the appropriate machinery to enable cases involving points of law of exceptional public interest to be determined wholly or partly at public expense".
As a result of that request, the Evershed Committee reviewed the whole position exhaustively. It made recommendations which have lain gathering dust for the past 30 years—no, not quite the past 30 years, because two years ago the Benson Royal Commission took those recommendations down from the shelf, dusted them and gave them strong support in its report, with one added recommendation which is incorporated in the terms of this amendment in a slightly different form. What Benson said was this:
We think it appropriate that the resolution of points of law of public importance which benefit the community as a whole should be financed out of the public purse".
Turning to the provisions of this amendment, I point out that the meat of the amendment is in subsection (2)(a) and (b), which says:
A party to any … proceedings"—
set out in subsection (1)—
may at any time after the institution of the proceedings in the High Court apply to the Attorney General for a certificate—
§ The Evershed Committee consulted the Attorney-General of the day, the noble and learned Lord, Lord Shawcross, (Sir Hartley, as he was then) and he told the committee that in his view there was no reason at all why the Attorney-General should not take on this extra responsibility. The point which was added by the Benson Royal Commission was that, in approving of the idea that that power should be given to the Attorney-General, it pointed out that it might not be until the case had actually begun that the court would appreciate that it in fact gave rise to a point of exceptional public importance, and that therefore it should be possible to make the application at that stage. So in subsections (4) and (6) that matter is covered—not that the court should do so or make the recommendation, but that the Attorney-General should be enabled to give his certificate, even if the application was not made until that later stage. Subsection (7) covers the matter of costs being met out of public funds.
§ 4.30 p.m.
§ The only other matter I should like to add is this. As the Committee will appreciate, on the criminal side provision is made, and was made in 1972 in the Criminal Justice Act, for a reference to be made in a criminal matter by the Attorney-General to the Court of Appeal on a matter of law arising in a case where there was an acquittal. Provision was made that in those circumstances the point may be taken up to the Court of Appeal for decision on the matter of law without affecting the result of the trial. As the noble and learned Lord the Lord Chancellor has recently said in debate in your Lordships' House, that is a provision which has worked extremely well.
§ I would suggest to the Committee that this amendment would not only facilitate very important and desirable clarifications of the law in the quickest possible way but would also, as a result of that, in the long run save a very substantial amount of money. I beg to move.
§ Lord Rawlinson of Ewell
In this Bill everybody—first the Government and now the noble Lord—wants to give further work to the Attorney-General. The Government did not succeed in imposing that duty upon him, but now the noble Lord suggests it. The matter surely turns on the question of what is the exceptional public importance in "points of law of exceptional public importance"? I was interested to hear that the noble and learned Lord, Lord Shawcross, when he was Attorney-General, accepted that it would be quite easy to adopt. I venture to doubt that in the circumstances of today and with the present amount of business, which I think has increased considerably in the last 30 years. I also wonder whether it would be so easy.
962 Let us for a moment examine the position. If a party brings particular proceedings, those proceedings may well be cases in which there is public importance arising from the decision, and the judgment which is given eventually may be a leading judgment. Who is to judge that before the case comes on, until you hear what are the submissions and, if it may be a matter of evidence, until you hear what are the submissions which arise out of the evidence? Every case may be a case of public importance. The question is: is it of exceptional public importance to warrant the payment of costs out of public funds? I think it is a very difficult judgment to make.
As I say, I am surprised that the noble and learned Lord, Lord Shawcross, so readily accepted it. I, personally, should be very hesitant about it. Although I can see that it is of great advantage to have matters decided in principle, nevertheless cases before our courts are usually actual cases. They are not, as it were, hypothetical cases: they are actual cases, and, therefore, cases from which great consequences may flow. I sympathise with what the noble Lord, Lord Hutchinson, intends with this amendment. I should be interested to hear what the noble and learned Lord the Lord Chancellor has to say. However, I very much wonder whether this is a sensible and practical proposition.
§ Lord Elwyn-Jones
I share the desire of the noble and learned Lord, Lord Rawlinson, not to add to the burdens of the office of Attorney-General, having myself carried them for a little while. But there is support for the noble Lord's amendment in the Evershed Committee and in the Benson Commission Report. As the Committee will remember, in 1953 the Evershed Committee on Supreme Court Practice and Procedure recommended what is provided for in the clause. That was on the grounds that legislation is slow and cumbersome, and clarification of the law by judicial decision is swift (that is sometimes the case, but not invariably) and sure (that, too, may not be unqualified)—I do not seem to be doing very well out of that Evershed quote so far—and can go forward without regard to parliamentary time and quite independent of political considerations. That latter part may be right.
But it may be of more serious import, saving the eminence of the Evershed Committee, that the proposed procedure has been shown to work well; for instance, in relation to reforming procedures relating to identification evidence, following the Devlin Report, in R. v. Turnbull. It has also proceeded in the development of judicial review in civil matters. There has been an astonishing example of that but I do not want to revert to a previous innings on that subject.
The Benson Commission also supported the proposal in the amendment and said, in paragraph 16.20:We think it appropriate that the resolution of points of law of public importance, which benefits the community as a whole, should be financed out of the public purse".Then they refer to Evershed and support their view, but they recommend also that public funds should provide finance for this purpose:This would supplement the existing legal aid system by repaying to the litigant his legal aid contribution".963 So there is substantial authority and support for this proposition. Therefore, it certainly should not be dismissed readily and out of hand. But, like other noble Lords who have spoken, I shall with interest await the views of the noble and learned Lord the Lord Chancellor.
§ Lord Campbell of Alloway
I should not in any way wish to dismiss lightly the amendment. As the noble and learned Lord, Lord Elwyn-Jones, has said, it seems to have the support, in principle, of Benson and Lord Evershed and the noble and learned Lord, Lord Shawcross. But, having opposed the phantom sentencing exercise under Clause 22 of the Prosecution of Offences Bill, I really have to take a consistent line, which would lead me to oppose this clause as it involves theoretical decisions. With deference to the noble Lord who moved this amendment, I think it would be a great mistake to depart from the traditional system of giving actual decisions. That is quite apart from the matter with which I am not familiar but with which my noble and learned friend Lord Rawlinson, who has spoken before me, is familiar. That is the burden of the workload of Mr. Attorney—
§ Lord Hutchinson of Lullington
May I interrupt the noble Lord? It is not at all a question of theoretical decisions. The decisions would be in actual cases. The parties to the case would be at liberty to apply to the Attorney-General. It is not at all about theoretical decisions.
§ Lord Denning
May I just make one or two observations? First, since legal aid has been here, many cases which are of exceptional public importance are already taken to the House of Lords. Points have been decided in that way, at great public expense, which would never have reached the House of Lords before the existence of legal aid. Equally, I should have thought there was a good case for this clause. That is in this way. From my own experience, I remember a case called Farrell v. Alexander, which involved a lady who did not qualify for legal aid. She lost the case in the Court of Appeal. She could not afford to take it to the House of Lords. A few years later, a case was taken to the House of Lords that showed that the Court of Appeal was wrong. What a pity that a case like that should not have gone to the House of Lords at that time when the lady would have got recourse!
One knows that when a decision on an insurance clause and an insurance policy is in favour of the insurance company, they leave it as it is in the Court of Appeal. They discourage any appeal to the House of Lords even though this may affect hundreds and thousands of policies. They will even buy off the appellant by paying some of the damages. On the whole, I am in favour of the clause.
§ Lord Wilberforce
May I add a few words in support of what has been said. We have already been told about the Evershed Committee and Benson. Further weight is provided by a committee of Justice report in 1969 which advocated a clause of this kind. Perhaps of more importance is the fact that it has been tried out in at least two states in Australia, New South Wales 964 and Victoria—not in exactly these words but in similar form and shape—and works, I believe, quite well without costing a great deal of money. If the objection is the financial one that it will impose a burden on public funds, we should know how much is involved to enable us to estimate whether it is worth the possible cost.
In principle, I suggest that the clause deserves support. I say "in principle" because I am not too happy about the word "exceptional" to which the noble and learned Lord, Lord Rawlinson, referred. It may be just a case of public importance if the Attorney-General thinks it right to take it up or to be subject to this procedure. I urge that the clause is worthy of consideration.
§ Lord Boyd-Carpenter
I should like to ask the noble Lord, Lord Hutchinson of Lullington, about his understanding of how subsection (5) of this proposed clause would operate. As he knows, the Attorney-General, in many matters, acts wholly independently of the Government and Government colleagues, and, on his own judgment, independent of political pressures. On the other hand, we are here involved, as has just been pointed out, in the possibility of quite substantial public expenditure. Does the noble Lord envisage that, if this clause was put into the law, the Attorney-General would be free to hand out this public money on his own unfettered judgment, or whether, like other spending Ministers, he would have to seek in advance the consent of the Treasury?
§ Lord Simon of Glaisdale
I should like to refer to the speed and cost of legislation when we are considering this matter. My noble and learned friend the Lord Chancellor spoke earlier today of the difficulty of finding a slot in the legislative programme. After a point of law of great public importance has been identified, it can take years for it to be resolved by legislation. The proposed procedure is an alternative method whereby it can be resolved immediately. In that connection, one thinks also of the cost of legislation which is very considerable and difficult to quantify in all respects. That, too, must be set against the cost of the proposed procedure.
So for a matter of exceptional public importance, to which the noble and learned Lord, Lord Rawlinson, and also, I believe, the noble Lord, Lord Campbell, referred, we need not be wedded to the word "exceptional", as my noble and learned friend Lord Wilberforce suggested. My recollection is that there is precedent for this. In the old days the Attorney-General's fiat, giving leave to appeal to the House of Lords, was the formula that was used. I have an idea that it was also used in another connection.
Finally, on theoretical decisions, as the noble Lord, Lord Hutchinson, pointed out, this would be a practical decision every bit as much as, on the reference of a criminal case to the Court of Appeal, the verdict of acquittal by the jury masks a point of exceptional public importance, or public importance, which the Attorney-General desires to have ascertained. For those reasons, as well as those put forward by other noble Lords, I strongly tend to believe that there is a great deal to be said for this proposal.
§ 4.45 p.m.
§ The Lord Chancellor
I am sorry to seem disagreeable about this proposal, especially when it has had so many distinguished friends. However, I really must say to noble Lords that I am not in a position to add to public expense at the present time. I am a Minister who is responsible, as a member of the Cabinet, for the cost of my own office. I am also a Minister, responsible as a member of the Cabinet, for imposing restraint on a number of people whom I would place vastly in front of this proposal in my scale of social priorities—in the fields of national health, education and pensions—involving the kind of expenditure that is constantly urged upon us by the other side. I would put them vastly in front of the proposal that people should be entitled to litigate at the public expense.
§ The Lord Chancellor
It is absolutely wrong for me to accept something even if expense were the only point that I would wish to raise. I must, however, go a little further than that. I yield to no one in my respect for the late Lord Evershed and the noble Lord, Lord Benson. Both, in their day and in this connection, have done a very good job. I hope, therefore, that no one will accuse me of the smallest discourtesy or intended discourtesy. But the Government's policy in relation to this matter has already been announced. Our response to Benson was that the Government do not accept that the coincidence of public importance need necessarily result in public funding. The importance of the case to the individual litigant is, however, a relevant consideration for the granting of legal aid which is available to those of small or moderate means to pursue any reasonable action. To that extent, the costs of a case that might include the point of exceptional public importance are met.
I must add one or two other cases where this is so. Supposing that you have a case—this is not a supposition but a frequent occurrence—between the Inland Revenue and a millionaire as to the meaning of one of the taxation clauses. Let us assume that the millionaire wins in the Court of Appeal and the Inland Revenue want to take it to the House of Lords. It is the commonest thing in the world for the Court of Appeal to give leave to appeal because the matter is of great importance, and to do so on condition that the Revenue pay the cost whatever the result. Sometimes they get a result that is favourable to them; sometimes they do not. But that seems to me a very reasonable way for the Court of Appeal to behave.
The Attorney-General's fiat, when he used to have to give leave to appeal in a criminal case to the House of Lords, has been called into question. That fiat has now been removed, very probably for the kind of reason given by my noble and learned friend Lord Rawlinson. It was not thought appropriate for the Attorney- General to be the arbiter on whether an appeal should lie to the House of Lords or the terms on which the appeal should lie. I do, however, say, both in relation to the fiat and in relation to the other factors in which the Crown is a party, that it is, of course, perfectly sensible in cases where the Crown is a party for the Crown to have a certain say on certain terms as to whether public funds should be available to the 966 other party. But that is no kind of analogy as regards the present case. The proposition is that the public should pay for litigation, and that is not a proposition which I can accept at the present time.
The noble Lord, Lord Hutchinson, said, "But these are not purely theoretical cases" or "hypothetical cases", as my noble friend Lord Campbell of Alloway suggested. Indeed, he had the powerful support of my noble and learned friend Lord Wilberforce who I think has somehow disappeared! My noble and learned friend Lord Wilberforce has disappeared but the noble and learned Lords, Lord Denning and Lord Simon, are both, happily, still with us, and I hope they will be for a long time to come!
However, that view is not quite right. Let us suppose that litigation is started. It is not necessarily possible to say in advance that a point of exceptional public importance arises. The judge may decide on the facts that it does not arise. He may decide on a totally different point. Just over 10 days ago—and I do not see any of my colleagues who sat with me on the case at present on the Cross-Benches—I had the privilege of presiding over an appeal where the Court of Appeal had certified that a point of general public importance arose in a criminal case. The only matter of which we were certain was that it did not arise at all. We are going to decide the case on a totally different ground. Whether in order to show courtesy to the Court of Appeal—which evidently wanted to know the answer to a conundrum—we shall make a number of obiter dicta, I do not know. However, the idea that you can dictate to a court in advance that it is going to decide a matter of urgent public importance, is something which does not really bear examination for a moment. It is quite right, as my noble and learned friend Lord Simon of Glaisdale said, that very often you cannot get your slot in legislation. But I can tell your Lordships that if I had included in this Bill all the suggestions which have come from noble and learned Lords, and particularly from the Benches below the gangway opposite, I would never have found a slot for this Bill, whether it he a good Bill or a bad one. I can promise your Lordships that.
I must add this comment to what I have said to my noble and learned friend Lord Simon of Glaisdale. Supposing the point of exceptional public importance is decided by the court and is not decided in the way in which the Attorney-General would like it decided. Next we shall hear a claim for the famous one-clause Bill which is going to reverse the decision of the House of Lords. So we shall have two Bills instead of one. I must say—although I think that I am the least entitled of all those who have spoken to say so—that I am told that the view of my right honourable and learned friend the Attorney-General is that he has neither the resources nor the staff to make any such decisions as are urged upon him in this clause. At any rate, he does not have them at present.
I have been asked by my noble and learned friend Lord Wilberforce to give an estimate of the cost of the number of points of exceptional public importance which may or may not be demanded of an Attorney-General in some future years. I can only say, to coin a phrase, that he has been blown off course. It is not possible to give an estimate.
967 I hope that I have not been discourteous; but I really cannot accept this amendment and I fear that the Government cannot accept it for their own reasons. But I submit to the Committee that there are good reasons of principle for rejecting it and I rather hope that the matter will not be pursued to a Division.
§ Lord Hutchinson of Lullington
I should like to express my gratitude for the very strong support which this amendment has received, particularly from the Cross-Benches. I am disappointed of course to hear—not that I am particularly surprised—what has just fallen from the lips of the noble and learned Lord the Lord Chancellor. I did not observe a great point of principle in what he said. However, I quite understood the two points that he made; namely, the burden upon the Attorney-General and the burden upon public funds. I do not have a great deal of sympathy for the former; and I find it sad that the noble and learned Lord, Lord Rawlinson, would find it so difficult to spy a point of exceptional public importance when his predecessor is on record as saying that he would find no difficulty at all. We have heard that Lord Evershed would apparently have found no difficulty at all. And other very distinguished lawyers who have spoken to this amendment would by implication have found no difficulty at all.
The noble and learned Lord the Lord Chancellor has said that he could not possibly support an amendment which would involve the public paying for litigation. The public pay for litigation as it is in that they support legal aid every day of the week. If I may say so, this amendment is only another facet of legal aid which would, for reasons which have already been set out by the noble and learned Lord, Lord Simon, save money in the long run. If in fact a case were certified and could go to the Court of Appeal where an authoritative decision could be made, it might mean that the whole process whereby the court says, "It is time Parliament looked at this point", with the whole process of bringing the matter to Parliament and the whole expense of putting forward a Bill, would be avoided. On the other hand, as has also been pointed out, an authoritative decision of the Court of Appeal or the House of Lords might mean that there would be no further litigation at all in relation to this particular point.
§ Lord Rawlinson of Ewell
I am grateful to the noble Lord for giving way. Will he indicate where in the amendment the Attorney-General would be able to take into account, for instance, the means of the person making the application? Suppose one of the richest and most powerful corporations had made the application and they said that there was a point of law involved which was of exceptional public importance. In those circumstances, would the Attorney-General, if he agreed with it, have to certify that the whole of this litigation should be done at public expense?
§ Lord Hutchinson of Lullington
If the noble and learned Lord reads the Evershed Report he will find that they went out of their way to say that the only consideration in the Attorney-General's decision would be the question of public interest. It was not a 968 question of considering the means of the parties in the case at all.
To answer the point raised by the noble Lord, Lord Boyd-Carpenter, as he knows at present when orders are made that costs should be paid out of public funds, there is followed a procedure in which the costs are taxed by the taxing master, and the costs having been taxed are then met out of public funds. No doubt the Attorney-General of the day would follow that normal procedure. Alternatively, under the Prosecution of Offences Act I suppose that they could also be paid out of his grant; but that would be a matter for him. However, there is a well-known procedure which is laid down for meeting costs out of public funds.
§ Lord Boyd-Carpenter
It follows—does it not?—that the Treasury would have no say in decisions as to whether a particular case should be financed out of public funds.
§ Lord Hutchinson of Lullington
Not in a specific case because they would be met—as in all other cases they would be met—when an order is made by the court that the costs should be met out of public funds. Having said that, there is no question, I would suggest, of weighing in the balance kidney machines or litigation. The whole essence of this amendment would be in the long run to save money. Having heard what I have heard from the noble and learned Lord the Lord Chancellor and the views which have been transmitted to this Committee from the Attorney-General, I shall not take this matter now to a Division But, having regard to the great body of support which I have received on this amendment I do not guarantee not to bring it forward again at a later stage.
§ The Deputy Chairman of Committees (Lord Nugent of Guildford)
Does the noble Lord wish to withdraw the amendment?
§ Amendment, by leave, withdrawn.
§ 5 p.m.
Lord Campbell of Alloway moved Amendment No. 50A:
After Clause 43, insert the following new clause:
(2) After subsection (3) there shall be inserted—
(3A) For the purposes of subsection (3) above an order made under section 4(2) or section 11 of the Contempt of Court Act 1981 shall not be regarded as a matter relating to trial on indictment.").
§ The noble Lord said: This amendment falls within the general structure of Part IV, under the sub-title, "Judicial review"; and, as the marginal gloss shows, it is concerned with judicial review of orders made under Sections 4(2) or 11 of the Contempt of Court Act 1981, such orders being made in the Crown Court. The object of this amendment is to enable the Divisional Court to entertain judicial review of orders made in the Crown Court imposing restrictions on 969 reporting, under Section 4(2) or Section 11 of the Contempt of Court Act. At the moment the Divisional Court has no such jurisdiction, and such orders are final and conclusive. This is because Section 29(3) of the Contempt of Court Act, which is referred to in the amendment, expressly excludes from judicial review matters relating to trial on indictment.
Following the decision in 1980 in R. v. Sheffield Crown Court, in a decision of the Court of Appeal in which the noble and learned Lord, Lord Denning, dissented, it was held that the words,
a matter relating to trial on indictment",
were words of exclusion which in law deprived the Divisional Court of jurisdiction to review an order—in that case, to a chief constable—to supply a list of convictions of members of a jury panel. Since then, those words have been held to deny jurisdiction for judicial review as regards an order revoking legal aid made in the Crown Court unless the accused retains solicitors already assigned. That was the case of R. v. Chichester Crown Court, in January 1984. The case of R. v. Sheffield Crown Court was in 1980.
§ These words of restriction have also been held to prevent judicial review running where a Crown Court judge has ordered the estreat of a surety as recognisance of some £100,000; that was in the case of R. v Warwick Crown Court, in March 1984.
§ So it is with reporting restrictions imposed under the Contempt of Court Act. It was expressly so held, following the old decisions, in November 1984, in R. v. The Central Criminal Court, ex-parte Crook and National Union of Journalists. I say nothing whatever, naturally, about the Ponting prosecution; that is sub-judice; but it is another of these cases where the same problem arises.
§ Generally, and as matter of due administration, there can really be no justification at all for any such curtailment by statute of the supervisory jurisdiction which the High Court exercises over inferior tribunals. It is especially so where reporting restrictions are imposed. Why is it especially so? It is because this lies within the domain of public interest as affecting the freedom of the press, apart from the private and commercial interests of those against whom such orders are made.
§ These orders can be sought or made against a person who has had no opportunity—I stress this—to make any representations at all, and the only redress is to seek to obtain an appointment before the Crown Court judge who made the order and apply to have it revoked. Under Section 4(2), the Crown Court judge can postpone indefinitely a report of proceedings or part of proceedings. Then, under Section 11, directions may be given prohibiting publication of a name or any other matter. This is, as I hope your Lordships will agree, far from satisfactory.
The sole purpose of this amendment is to cure this defect and to ensure that there is due adjudication by affording a process of judicial review, subject of course to the usual safeguard of granting leave, which was discussed and considered earlier today by your Lordships. This result which I seek is achieved by the drafting expedient of providing that such an order under the Contempt of Court Act shall no longer be regarded,
as a matter relating to trial on indictment".
§ The costs situation when such orders are made in the Crown Court was dealt with by old Amendment No. 64 on the Committee stage of the Prosecution of Offences Bill, which was withdrawn for redrafting. One is grateful to my noble and learned friend the Lord Chancellor for his suggestions about drafting and for the fact that the principle was not rejected. That will be brought forward again on Report. We are not concerned with that today.
§ We are concerned with the substantive and much more important position as to affording judicial review for these orders. It is my hope that the principle of this amendment, which has the support of the noble and learned Lord, Lord Denning, and of the Law Society, which telephoned me to say that I could say that it supported this amendment, will be acceptable. It has, as far as I can see—I am open to correction—none of those fatal financial implications which could affect any undertaking given by my noble and learned friend the Lord Chancellor. As far as I can see, there are no financial objections, and my hope is that it may be considered on its merits. I beg to move.
§ Lord Denning
In support of this amendment may I just draw attention to two cases. They arise under the Contempt of Court Act. Under Section 4 of that Act the judge at the Crown Court trying a criminal case can decide and order the newspaper reporters to report nothing of the case for the time being or for some considerable time. The people who are affected by that are the newspapers and the reporters, and the people who wish to give notice of it.
It was a case about gunrunning before the Horsham magistrates, and they made an order prohibiting reporting. The National Union of Journalists and their reporter sought to be able to report the proceedings. Ought not they to be able to get that decision of the magistrates reviewed if they wish? If they do so wish, they cannot do anything about it at the moment because it is a matter relating to trial on indictment, and on a matter relating to trial on indictment there is no appeal, or no review by anybody. That is one case.
The other case I would refer to is whether in a magistrates' court a name of a witness, or a party, should be able to be reported or not, and the magistrates decided that it should be. The same thing might happen in the Crown Court. There is no appeal to anyone, or no review by anyone of such a matter because it is on a matter relating to trial on indictment.
We had in the courts the meaning of those words "trial on indictment", but the instances I have given seem to me plainly to be matters relating to trial on indictment for which there is no recourse at the moment to any higher court. The object of this amendment is simply to say that there can be a review by applying to the higher court in those cases. I support the amendment.
§ Lord Mishcon
We are dealing with a matter of great seriousness which affects the whole question of the freedom of the press and the freedom of the public to have access to what transpires in our courts. It is a matter of pride, which members of the legal profession are so often prone to utter with justification, that we 971 have in our courts and in our procedures by way of publicity protection for those who need protection. I am talking about the victims of blackmail; I am talking about rape cases, and matters of that kind. However, we also have as very much of a guiding principle the fact that our courts are open, and that what transpires in our courts are matters to which the public have proper access.
The noble and learned Lord, Lord Denning, referred to two cases. So that your Lordships may realise how at a very high judicial level the matter that is sought to be remedied by the amendment which the noble Lord, Lord Campbell of Alloway, has so properly brought before us was dealt with—and I want to show why it is so necessary that we should regard this matter with great seriousness and deal with the matter here and now in this Bill—if I may I am going to quote from a recent judgment. Let me at once say who were the learned judges who dealt with this matter: they were Lord Justice Watkins, Lord Justice Stephen Brown, and Mr. Justice Beldam. The matter came before them and judgment was delivered on 7th November 1984. The case was ex parte Timothy Simon John Crook and National Union of Journalists.
§ 5.15 p.m.
If I may, because it is so relevant, I am going to read from the judgement delivered in that case. I do so at page 15:
I am satisfied that the Judge's order in this case"—
it was an order that the name of a witness, a witness called by the prosecution, should at no time be disclosed—
was made in relation to a trial on indictment; the trial had commenced although the jury had not yet been empanelled. He"—
that is the judge—
made his order intending it to influence the conduct of the trial by ensuring that the witness in question, who was the principal witness for the Crown, should be protected by an order designed to safeguard her anonymity outside the court. Accordingly"—
and this is what this amendment deals with—
I feel bound to hold that this court has no jurisdiction to entertain this application for judicial review".
What comes after is most pertinent.
I have come to this conclusion with considerable reluctance, since this is undoubtedly an unsatisfactory situation so far as the applicant and his colleagues are concerned".
They were the journalists.
They have behaved in a highly responsible way, for they have not sought to challenge the Judge's ruling by disobeying it and then allowing its validity to be tested in proceedings for contempt. They have not departed from the responsible position which in my experience the press normally adopts. Further, since there has been no appeal by the defendants who were ultimately convicted on this indictment, the matter cannot be tested in the course of an appeal to the Court of Appeal Criminal Division".
Then I am leaving some part out which is not relevant and I get to this portion of the judgment on page 16:
However, the applicant states in his affidavit that Judge Lymbery's judgment"—
that is the one I have been referring to about the non-disclosure—
has been circulated to other courts with a view, or at any rate a risk, that it may be regarded as a precedent. This fact, if
correct—and the affidavit is not challenged—gives rise to concern on my part because of the possibility that it may be used to seek further similar orders in other courts. I therefore feel it right to express in clear and strong terms my disapproval of the procedure which was adopted and of the order which was made. I hope that it will not be followed.
§ The court found that it had no jurisdiction to entertain matters of judicial review in regard to this because it was on indictment, but I felt that your Lordships would want to bear in mind the echoing words issued only some two months ago in one of the senior courts of our land. It is right that the Law Society, as the noble Lord. Lord Campbell of Alloway, said, support this amendment. Indeed, they have authorised me to say so.
§ Lord Hutchinson of Lullington
Might I add one matter to what has been said. I have certain reservations about this amendment. The real trouble is that there is no judicial review of decisions of Crown Court judges in matters relating to their own jurisdiction. That is a matter which has given rise to concern over a long period. Whether it is right to have an amendment which affects only this particular aspect of the Crown Court judge's decision is a matter for the Committee.
No doubt the member of the NUJ who took up this matter was motivated by the most high-minded motivation when he wished for the publication of this woman's name in the newspapers in this particular case at the Old Bailey. But in point of fact, the basis of the refusal by the judge was that in the circumstances of the case he took the view, having heard the medical evidence, that if such an order was not made the witness would be strongly advised by her medical advisers not to give evidence.
The evidence was absolutely essential—and it would be in many other cases—and certain types of witness who might otherwise not give evidence, or be too fearful to give evidence, would not give evidence unless such an order was made. Therefore, in the long run the order in fact furthered the administration of justice. That may have been right, or it may have been wrong, but that was the basis of it.
Judges in the Crown Courts do all kinds of other things which give rise to concern. They may get busy on the question of vetting of juries. They may refuse costs or order contributions to be made in legal aid cases which many people think are not fair. They sometimes order solicitors personally to pay costs of adjournments for which they think they may be responsible, and so on. They may dismiss a jury from giving a verdict when those involved in the case believe that that would be a wrong course to take at that stage. Those kind of matters raise problems of very great importance to persons concerned in cases in Crown Courts. Although one is sympathetic to the amendment, it is questionable whether one should put in a Bill of this kind an amendment which affects only one matter, and that is the press.
§ The Lord Chancellor
The noble Lord, Lord Hutchinson of Lullington, has put his finger on a rather important point, which I shall develop in my own way in a moment. I hope that the Committee will remember three things. The first is that as recently as 21st January a closely related amendment was moved, 973 I think by my noble friend, which I treated with what I believed to be a reasonable degree of friendly consideration. I said that I would consider it.
I also point out that the Contempt of Court Act was passed only after very considerable discussion, between three and four years ago, and we went into this very thoroughly.
The third matter I would put in the background is that, as the noble Lord, Lord Hutchinson of Lullington, has said, this amendment is a fish out of water in this Bill. We are not discussing procedure in the Crown Court generally and there are a great number of questions which one might want to discuss if we were.
I gained my slot in the legislative programme on the basis that this was a Bill limited to civil cases. This is an attempt to alter Section 29 of the Supreme Court Act which makes it quite clear that the provisions which are now sought to be tampered with should not apply to trial on indictment. In other words this clause is, exactly as the noble Lord, Lord Hutchinson of Lullington, suggests, attempting by a device to introduce into the Bill something which is quite inappropriate to it. But the device is extraordinarily unfortunate because the section which is about to be tampered with—this is in another Act of as recently as 1981—says, in terms, that in relation to the jurisdiction of the Crown Court, other than its jurisdiction in matters relating to trial on indictment, the High Court shall have all such jurisdiction to make orders of mandamus, prohibition or certiorari as the High Court possesses in relation to the jurisdiction of an inferior court. In other words, the 1981 Act, which again was fully debated in this House, expressly excludes trial on indictment.
The next point concerns the case of Crook, which has perhaps an appropriate ring in relation to criminal matters. In that case the court went out of its way to say that although it had no jurisdiction to entertain the complaint, it hoped that judges would follow its opinion that that order and orders of the same kind should not be made. So far as I know, judges have loyally abided—though this is not very long ago—by the words which fell from Lord Justice Stephen Brown on that occasion. Therefore the need to introduce it into this Bill is not apparent.
But the amendment proposed by my noble friend says:For the purposes of subsection (3) above an order made under section 4(2) or section 11 of the Contempt of Court Act 1981 shall not be regarded as a matter relating to trial on indictment".In other words, something which manifestly relates to a trial on indictment shall be treated as if it did not.
With the greatest respect to my noble and learned friend on the Cross-Benches, we are past the days of John Doe and Richard Roe. He has a certain disregard for the niceties of legal procedure and precedent which is well known and therefore he will not mind my referring to it. But there comes a limit beyond which one should not proceed by legal fiction in modern legislation. It is for this reason, apart from the others I have given, that I cannot help feeling that this is not an amendment which I would care to recommend to the Committee.
974 There is another point which bears a relationship to what I have just said by way of commendation regarding what the noble Lord, Lord Hutchinson of Lullington, said. To permit judicial review in this area of trials on indictment will necessarily lead to pressure upon the Government, perhaps even upon me, to permit judicial review in other areas to which it does not apply. It is a short step from that to a situation where judicial review becomes a second form of appeal against conviction and slows down the trial process in the Crown Court while the outcome of interlocutory applications is awaited. I should also point out that the Crown Court is itself a superior court of record. One has to ask in what direction it is right that the decision of a judge in one Division of the Supreme Court, the Crown Court, should be subject to review by a judge in another Division of the Supreme Court; namely, the Queen's Bench Divisional Court.
For these reasons I do not think that this amendment will do. I hope that my noble friend will remember my rather more kindly words about his preceding amendment on the Prosecution of Offences Bill. I do not think we have necessarily heard the last of this topic. I am simply addressing myself to the merits of this suggestion. I do not think it is one that I could reasonably ask the Committee to accept.
§ Lord Campbell of Alloway
Naturally, I am disappointed with what my noble and learned friend has said, but I am not totally surprised because I appreciate that, of course, as the noble Lord, Lord Hutchinson of Lullington, said, there is the wider aspect. The problem rests as it stands on the wider aspect. I did not seek to mask that fact when moving the amendment; in fact, I referred to three or four examples of the wider aspect.
It is, with respect, not quite right, is it? If one tries to draft on the wider aspect to cover all these matters of review, one finds that that is not very easy to do. Since it is difficult to attain, is it right to say that because we cannot do that, we should not deal with the one area where this bites upon the public interest in freedom of the press? I should have thought that this was a subject to which some further consideration should be given.
With respect, I would suggest that there is a proven need for the clause as a result of what Lord Justice Stephen Brown said as a result of the problems to which the noble Lord, Lord Mishcon, referred about the decision of His Honour, Judge Lymbery, being used as a precedent, and so on. There are dangers there.
It is a serious matter, if a statute produces a nonsense—which it does, if we look at Clause 29(3). In matters relating to trial on indictment, who would have imagined then that that would prevent an application in relation to the Contempt of Court Act? Search Hansard as you will, you will not find that. Who would have imagined then, in matters relating to trial on indictment, that you could not challenge the estreatment order of £100,000 from a surety; that you could not challenge an order by a Crown Court judge that a man forfeit his legal aid unless he stands by the solicitor who has been assigned to him whom he does not want at any price? For good or bad reason, it is totally immaterial. And that that order should be final 975 and conclusive because it is all going to be construed as a matter relating to a trial on indictment.
It will not do to say that this Bill was debated, it was discussed, and it is a recent Bill, when, if you look at Hansard, you probably will not find that any of these matters were discussed at all, because they had not occurred. Certainly, the Contempt of Court Act, in a sense is contemporaneous, so how could it have occurred? And there is a serious problem. The noble and learned Lord, Lord Denning, in his dissenting judgment in the 1980 case in the Court of Appeal, said: "Well, it's perfectly clear that, looked at broadly, what they are dealing with there is the position of this order to the chief constable to disclose the criminal convictions of the jurors". The noble and learned Lord, Lord Denning, said there, dissenting: "Well, one has got to take a sensible view. The statute would not have envisaged that this would be treated as a matter relating to trial on indictment; and so we could order judicial review".
But the other two learned judges took a different view, which with respect to the noble and learned Lord, Lord Denning, must be really the right view, because was not the noble and learned Lord, Lord Denning, trying to stretch the law a bit to do justice? I say that with the greatest respect, of course. But if one has to get to that position, how can my noble and learned friend the Lord Chancellor say that I am doing a sort of John Doe or that I am dealing with legal fictions? How does one escape from this case, from this straitjacket? We are all in it. How do we get out of it? Do we just say that we cannot get out of it? Do we just say, "Oh, well, it is just too bad that these orders can be made; the freedom of the press does not really matter; these matters are of no consequence; it is all too difficult"? If there is no escape, what do we do?
I have made rather a long and, I am afraid, rather an impassioned plea to my noble and learned friend the Lord Chancellor in the hope that in his very much greater wisdom he might be able to see some light in the tunnel if he can discern the broad justice of the cause. I ask for no assurance, I ask for no undertaking; but if he could give me only the merest hint that this matter might receive a little further consideration then I would be only too willing to withdraw the amendment. I wonder whether my noble and learned friend the Lord Chancellor can give me any hope on that matter at all.
§ The Lord Chancellor
I do not think that I really can do much more than I have said. I gave him a very friendly reply when I was speaking on a Bill which dealt with criminal law when he put forward a related amendment on a Home Office Bill. But the Home Office is responsible for changes in the criminal law and not the Lord Chancellor. This Bill is about civil law. Obviously there are problems, some of which we discussed rather fully then; and I have never denied it. But this is not the way to do it and, in response to what he rightly described as a slightly impassioned reply, I have to remind him, courteously, but I am afraid firmly, that his amendment is dealing solely with the Contempt of Court Act provisions and has nothing to do with estreating recognizances or the other matters which he mentioned. This is a general problem of 976 criminal law and in due course will have to be considered by my right honourable and learned friend the Home Secretary.
§ Lord Campbell of Alloway
I am extremely grateful to my noble and learned friend for the great courtesy and patience that he has shown. It would be wrong to press this amendment; but if it would be proper to withdraw it, seek advice and, perhaps, if so advised bring it back on Report, I would prefer to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 44 [Power of High Court to make judgments binding on certain persons who are not parties]:
Lord Mishcon moved Amendment No. 51:
Page 32, leave out line 36 and insert ("relating to trusts and estates of deceased persons to the extent specified in rules of court.").
The noble Lord said: Perhaps I may respectfully suggest to the noble and learned Lord the Lord Chancellor that something has gone agley with the draftsmanship of this clause, with the sidenotes which exist and generally, in order to necessitate an amendment of this kind. Having said that, may I ask your Lordships to look for one moment at the clause in question? Your Lordships will see that the heading is, "Proceedings relating to trusts and estates of deceased persons". If you then look at the sidenote, you will see in the sidenote:
Power of High Court to make judgments binding on certain persons who are not parties".
That looks like a very general and wide-sweeping power. If you then turn to the very helpful Explanatory Memorandum, you will see that it says:
Clause 44 enables rules of court to be made empowering the High Court to make judgments in certain proceedings relating to the estates of deceased persons and trusts binding on persons who are not parties".
Fourthly, if you look at the actual wording of Clause 44(1) it will be seen that it is:
This section applies to actions in the High Court of any description specified in rules of court".
I venture to think that those four matters to which I have referred differ one from the other in ordinary English. So, thinking that I have correctly interpreted the meaning of the heading and the effect that this subsection is supposed to have, the amendment appears before your Lordships now. I beg to move.
§ The Lord Chancellor
Perhaps I may say that the amendment would limit the persons who may be bound by the new notice procedure to those affected by actions relating to trusts or to the estates of deceased persons. This is the intention of the clause. Of course, the sidenote is something from which judges have to avert their eyes on occasion, and the Explanatory Memorandum dies with the Bill when it becomes an Act. On the other hand, I think that this raises a point which deserves consideration. It raises a point about the scope of the clause which has substance, in that subsection (1) and subsection (3) could be construed to give the clause a wider scope than is intended. However, the wording of this particular amendment is defective. If the noble Lord agrees to withdraw his amendment, I will undertake to 977 introduce an amendment which achieves the same result on Report.
§ Lord Mishcon
In regard to the wording of the amendment, of course it follows very strictly the wording of the accompanying memorandum. But I am most grateful to the noble and learned Lord for what he has said, and I look forward with great anticipation to seeing the way the amendment ought to have been drawn, when I see his own amendment at Report stage. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 44 agreed to.
§ Clauses 45 to 47 agreed to.
§ Clause 48 [Amendments relating to jurisdiction of county courts and district probate registrars in probate proceedings]:
§ Lord Mishcon moved Amendment No. 51 A:
Page 35, line 40, at end insert—
(" "(3) The jurisdiction conferred on the county court by subsection (1) of this section shall only be exercisable by those county courts designated by order of the Lord Chancellor for that purpose.".").
§ The noble Lord said: I can be very short over this amendment. If one looks at Clause 48, it is a very useful clause which gives jurisdiction to county courts and district probate registrars in probate proceedings. It is a very specialist field, and the only purpose of this amendment—I say this with the greatest of deference to learned county court judges and registrars—is to see that this jurisdiction is given to courts that are capable really because of their experience in exercising it. That means that by this amendment the jurisdiction which is conferred on the county courts by subsection (1) shall only be exercisable by those county courts designated by order of the Lord Chancellor for that purpose. It is not to spread to all county courts without any exception at all, and it gives the obvious right to the Lord Chancellor to see that those county courts where the experience exists will have the jurisdiction. I beg to move.
§ The Lord Chancellor
This amendment would restrict the exercise of the county court's jurisdiction in contested probate matters to courts specially designated by the Lord Chancellor for that purpose. There are of course parallels, as the noble Lord, Lord Mishcon, has rightly pointed out, for a suggestion of this kind: divorce, bankruptcy, Admiralty and race relations. These are specialised areas of the law where jurisdiction is assigned or confined to particular courts; but in this field of contested probate matters, county courts have exercised jurisdiction to handle them for well over 100 years and the amendment would in effect remove the jurisdiction from all but specially designated county courts.
The existing exceptions all have a practical justification. Divorce and bankruptcy both have special procedures and require, among other things, the establishment of a special section in the court office to deal with them. Race relation cases require assessors who have to be concentrated in particular areas. Admiralty jurisdiction requires special administrative arrangements. No such considerations apply to 978 probate. There are administrative arrangements which would enable me to deal with this problem, if it is one, by other means.
There may be occasional county court cases which raise technically difficult points, but the county court system runs on the basis of a generalised judiciary; and a generalised judiciary who have an ability to handle a wide variety of cases is an essential feature of the service that the county courts provide. But if the occasional difficult case does arise, one can use in an extreme case the power under Section 42 of the County Courts Act 1984 to transfer to the High Court. That section expressly contemplates transfer in this sort of case.
Secondly, the case can be transferred to another county court; and, thirdly, informal arrangements already exist whereby a judge with the appropriate expertise can be asked to come to a county court especially to try a technically difficult case. Of course, the working of these arrangements depends a good deal on the discretion of the judiciary themselves, but in general they wish to be helpful and my department will always do its best to help if a party—or his legal advisers—makes a special request for arrangements in a difficult case. I would suggest that is the best way of dealing with it; and what has worked well for 100 years will, I hope, work well enough for the next 100 years, with this degree of flexibility.
§ Lord Simon of Glaisdale
Perhaps I should say this. Although my experience as to probate jurisdiction is now a considerable number of years past, I never found the smallest difficulty in the field identified by the noble Lord, Lord Mishcon.
§ 5.45 p.m.
§ Lord Mishcon
Not all county court judges are like the noble and learned Lord, Lord Simon: I wish they were. But, having said that, in view of the fact that the noble and learned Lord the Lord Chancellor has said that he feels this matter can be dealt with administratively, I think it would be quite wrong for me to pursue this amendment, and I beg leave to withdraw it.
§ Amendment, by leave, withdrawn.
§ Clause 48 agreed to.
§ Clause 49 agreed to.
Lord Elwyn-Jones moved Amendment No. 52:
After Clause 49 insert the following new clause:
§ ("Goods subject to seizure in execution.
.—(1) After section 137 of the Supreme Court Act 1981 there shall be inserted—
Goods protected from seizure in execution
137A.—(1) The following shall not be liable to seizure under any execution or order of any court against the goods of any person—
§ (2) For the purposes of this section "family", in relation to a person means the persons (if any) who are living with him and who are wholly or partially dependent on him.979
(2) For section 89 of the County Courts Act 1984 there shall be substituted—
Goods which may be seized
89.—(1) Every bailiff or officer executing any warrant of execution issued from a county court against the goods of any person may by virtue of it seize—
§ (2) Any reference to the goods of an execution debtor in this Part of this Act includes a reference to anything else of his that may be lawfully seized in execution.
§ (3) For the purposes of this section "family", in relation to a person, means the persons (if any) who are living with him and who are wholly or partially dependent on him.".")
§ The noble and learned Lord said: This is an important amendment, which it may well be the noble and learned Lord will feel disposed to accept. It proposes to modernise and extend the class of goods which may not be seized from a debtor under a High Court or county court execution. The proposed wider exemptions in the clause exactly parallel those which will apply to the goods of a bankrupt under Clause 110 of the Insolvency Bill, now winding its way—I will not say like "a wounded snake" or whatever the appropriate—
§ Lord Elwyn-Jones
Like, indeed, the Administration of Justice Bill through your Lordships' House. The present position is that the sheriff's officer or bailiff may, in execution of a court judgment or order, seize virtually all the goods of the debtor. The only exceptions, which are set out in Section 8 of the Small Debts Act of 1846 and Section 89 of the County Courts Act 1984, apply to wearing apparel, bedding and the debtor's implements of his trade. Those exemptions apply only up to a value of £250.
It is a sad reflection upon the slowness with which Parliament deals with these matters that way back in 1969 the Payne Committee reported in effect the substance of what is contained in this clause. It cited a recommendation of the Under-Sheriffs' Association, which said—and I quote—that it was,concerned at the hardship that could be caused to debtors' families by the removal of household goods that are virtually essential to the maintenance of the family as a whole. Sheriffs' Officers would welcome authority to leave on debtors' premises sufficient chattels to prevent disruption of the debtor's household.Section 8 of the Small Debts Act 1845 is operated at present in favour of debtors. Many household effects are of far less intrinsic value when removed for a sale than they are worth in the home; there would be little justification or need in some cases for the removal but for a creditor's insistence. We recommend that a list of furniture and household goods should be prescribed which could be free from seizure"—then, curiously, they added—(as in Switzerland) and which could not be removed in execution".The Payne Committee agreed with that recommendation of the under-sheriffs, after consultation with 980 various social welfare and other interested organisations, founded on the general and sensible principle that a tradesman should retain such tools of his trade and goods as are necessary to enable him to earn a living, and that such household goods and personal clothing should be exempted as are necessary to provide a clean and decent home for the whole family. The Payne Report added:The implementation of this recommendation is widely regarded as a matter of urgency".That was about 16 years ago. I suppose that 16 years is time enough to allow to elapse before this sensible change is introduced. I beg to move.
§ The Lord Chancellor
I can well understand and, to a great extent, sympathise with the wish to derive the maximum benefit from the recommendation of the Insolvency Law Reform Committee regarding bankrupts' property, and I say at once, as I think the noble and learned Lord divined, that their recommendations have greatly influenced the shape of the Insolvency Bill which is racing through your Lordships' House neck and neck with the present piece of draft legislation.
But the difference is a vital one. The amendment attempts to import part of the committee's recommendations on the matter without the counterbalancing safeguards which would be necessary to achieve its main purpose. In the case of bankruptcy, the supervision and control of the trustee is the all-important factor enabling the adoption of a flexible approach to the bankrupt's needs. In the general run of the enforcement of High Court and county court orders by execution against goods, there is no trustee in bankruptcy with the scope of authority and duties which that status confers, and neither sheriff's officers nor bailiffs would enjoy the power which it is envisaged the trustees should have under the insolvency legislation.
The wider definition of the bankrupt's exempt property in the insolvency legislation would be expressed to be subject to the trustee in bankruptcy's power to sell any parts of that exempt property if he could find a cheaper substitute. A debtor's vehicles or wearing apparel would be excluded by the wider definition; but in the bankruptcy legislation the trustee would have power to replace the debtor's Rolls-Royce with a Ford and he would have power to replace the debtor's mink coat with a tweed. Thus, while the monetary limit, now £250, may be dispensed with under the insolvency legislation, the role of the trustee becomes the safeguard against abuse. If introduced into ordinary High Court and county court executions, the amendment would have a totally different effect. It would confer extra protection on the debtor to the detriment of creditors.
Let me say this in parenthesis. One of the things which has been happening to me lately is an increase in the flow of letters from Members of Parliament and their constituents complaining of their inability to execute against debtors. This is an increasing social evil, and, of course, it does not necessarily follow that the debtor is worse off than the creditor in such cases.
The other factor which I would stress is that when you are dealing with sheriffs' officers and bailiffs, as 981 distinct from trustees in bankruptcy and bankruptcy officials, they have to know with certainty what can be seized in execution and what cannot be seized in execution. Categories of goods which up to the limit are not to be seized must be plain, simple and a necessary guide to their behaviour. No doubt the categories are imperfect. Categories are in similar terms to those enacted a long time ago. But it is an acceptable compromise between the conflicting wishes of creditors and debtors where there is no umpire like the trustee in bankruptcy.
The amendment, by repealing Section 8 of the Small Debts Act 1845 and the existing Section 89(3) of the County Courts Act 1984, would repeal the monetary limits of such protected goods entirely. Furthermore, the categories of those protected goods are greatly extended and would appear to protect many of the goods owned by debtors which could at present be seized and sold off to pay his debts. That can only mean that the unfortunate small shopkeeper or the lender of money would be the loser. Sheriffs and bailiffs attempting to obtain payment on behalf of creditors within the strict limits of the law would be seriously hampered by the amendment.
Given the peculiar failings of human nature, if debtors think that they can avoid paying their debts by buying motor cars or mink coats, for example, they will buy motor cars and mink coats, and what is more the amendment would then protect those goods from being seized and sold. A debtor who really is unable to pay his debts can always pursue the option of presenting his own bankruptcy petition, and thereby secure for himself the protection which the insolvency law gives. But to give the protection without also imposing the supervision will merely make court enforcement of debts less effective and place fresh obstacles in the way of those who already have the difficult task of carrying it out.
I hope that I have not been wholly unsympathetic to what underlies the amendment, but here we have to look at two factors. One is the essential difference between insolvency law with the powers of the trustee in bankruptcy, to which I have referred, and the other is a well-known proclivity of a very large number of debtors to use any device rather than pay what they owe.
§ Lord Elwyn-Jones
I find that a somewhat discouraging response, bearing in mind that this problem has been on the lapis ever since 1969, and there seems to be a total rejection of what was recommended by the Payne Committee. There are two sides to this. One is the importance of recovering for the creditor as much as is reasonably possible: the other is to enable the debtor to have the possibility of carrying on with his life and earning a bit of money to clear his debts. It is a balancing process, and I am afraid that I do not detect a balancing spirit in that response. I am not suggesting it is unbalanced, but it certainly is not balanced. This delicacy of language is not unimportant. I do not know what the Committee feels about this. I have not detected a great deal of support around me. Therefore, in the circumstances, I beg leave to withdraw the amendment and, maybe, return to it on another day when, perhaps, I shall find the 982 noble and learned Lord the Lord Chancellor in a more balanced frame of mind.
§ Amendment, by leave, withdrawn.
§ Clause 50 [Register of county court judgments]:
§ 6 p.m.
§ Lord Mishcon moved amendment No. 53:
Page 37, line 9, at end insert
(" "(3A) Where a jugment or order which is registered is satisfied in full, it shall be the duty of the party in whose favour the judgment or order was made, within two months of such satisfaction, to notify the person keeping the register of that fact and the registration shall thereupon be cancelled.
(3B) The Lord Chancellor may, by statutory instrument, make regulations providing that subsection (3A) shall not apply to such type of judgment or order as may be specified in those regulations.
(3C) A person who suffers damage by reason of the failure of any party to discharge the duty imposed by subsection (3A) shall be entitled to compensation from that party for that damage and for any distress which the person has suffered by reason of that failure.".").
The noble Lord said: I hope that there will be support for this very important amendment which affects many people and their reputation throughout the country; and I am going to try and put the point very simply. There is provision in this Bill for the whole question of the registration of judgments, and so on, to go into private hands. When I say "private hands", I mean outside the present regulated procedure for this being done. I am in no way complaining about that; but I am asking the Committee at this particular juncture to put this clause in the Bill. The clause relates to the registration of judgments, and we are concerned here with the registration of judgment debts. At Second Reading on 14th January I raised this matter. At col. 823 of Hansard, I said this:
I took the trouble to look at some publications that raised this matter and to copy out a statistic. There were 911,296 registrations processed in 1983—a very frightening number. Only 37,834 showed notes of satisfaction, and that is only about 4 per cent. It cannot be true. The reason that these unsatisfactory matters remain is that the debtor is supposed to apply to the court for a certificate of satisfaction, pay a fee and then get the registration of the judgment wiped out. It is no wonder that either he does not know of the procedure or, having got rid of everything he had in order to satisfy the judgment, he is not inclined to pay even the small fee. This obviously constitutes an injustice.
§ I was winding up the debate on Second Reading on that occasion on behalf of the official Opposition, and the noble and learned Lord had a most trying task in endeavouring—as he did with great ability—to answer the debate and all the points raised in it. I make no complaint at all that with all the other matters that he had to cover, he did not refer to this specific one. But I am sure that he would be the first to agree that that was not because he did not regard it as an important point. We have the ability—and I am so anxious that we should take advantage of it—so that it will be the duty of the judgment creditor who is satisfied with his judgment to register the fact that there is satisfaction. That means that the record, as it were, will make it perfectly clear that the judgment debtor had satisfied the debt. And all those people who make inquiries about credit, and so on, will see that that is so.
§ There may be some exceptions to that rule, and therefore subsection (3B) of the amendment provides that the Lord Chancellor may, by statutory instrument, make regulations providing that the 983 subsection to which I have just referred should not apply to such type of judgment or order as may be specified in the regulations. That means that if there should be any exceptions to this rule then in the wisdom of the Lord Chancellor he can say that there should be those exceptions and he can regulate accordingly.
§ The last subsection says that if this is not done and the judgment debtor suffers damage or distress then he is entitled to compensation. If we wrap up these three matters in this amendment, we shall be doing something which I believe to be right and proper to safeguard the reputations of debtors who have satisfied their judgments, and it will be timely to do so because we are now envisaging a new procedure for the registration of judgments. I beg to move.
§ Lord Graham of Edmonton
I rise to counsel caution in respect of accepting this amendment. I do so with some temerity, because the case that has been made by my noble and learned friend was well-founded and reasonable. What we are talking about is the establishment of a new procedure. The noble Lord, Lord Mishcon, in his final words, felt that that was the appropriate moment to introduce the procedures in this amendment. However, I would remind the Committee that the genesis for the whole idea of a private registry is contained in Amendment No. 50, and particularly at the top of page 37 of the Bill. At the top of page 37 there is reference to the relevant amount which will remain as registerable at £10. The noble and learned Lord the Lord Chancellor will well remember the announcements in late 1983 that it was his intention to raise that figure from £10 to £50. This was done primarily in order to reduce the staff that were then needed to maintain a registry at that level. He will recall that the credit-granting agencies and businesses pointed out what they considered to be the consequences of being denied access to information on debts between 10 and £50 that has been registered being denied to them. The noble Lord, Lord Chelmer, and I took a small deputation to see the noble and learned Lord the Lord Chancellor. Arising from that, I understand that over the past 15 months substantial progress has been made and we now have the registry virtually in existence.
The amendment talks in terms of the duty of the party and in whose favour the judgment or order was made. The plaintiffs can range from private individuals, companies, solicitors, debt collection companies, etc. I am advised that it would be exceedingly difficult to be able to control and produce the kind of effect that the noble Lord, Lord Mishcon, wants to see in that particular situation.
When we are talking about satisfactions, it is not merely the question of wiping from the record the payment of the debt because I am advised that in many instances—not all—the mere getting to court for very small amounts has run over a considerable period; sometimes it has run over two or three years. Many companies spend a lot of time in writing letters, in making visits, and in accepting procedures whereby the money will be paid in small amounts. In many instances, the matter gets to court after a great deal of trouble—and cost, of course—to the company, which means the consumer at the end of the day.
984 In this day and age there must be many individuals who find that they cannot discharge their debt to a company due to circumstances over which they may have little control. I refer to the current situation where lots of people become unemployed, where debts are run up, and they find themselves in great difficulty. Now I understand that one of the main causes of alarm is that the person who has incurred the debt, the person who has caused the company to incur the cost, is now being invited to incur an additional sum in order to wipe the record of the debt off the registry. There is a choice: the choice either that the general consumer pays for that to be done, or the individual who has caused the debt has to pay for that to be done.
The statistics that have been quoted are those before the creation of the registry in 1983. The system then meant that 911 judgments were reported, and only 40,000 satisfactions recorded. However, as the noble and learned Lord the Lord Chancellor is well aware, computerisation, improvements in systems and a great deal of other improvements are already in existence. I understand, too, that there is every intention by the new registry to improve the amount of education, advice and guidance that it will be giving to all the individuals concerned.
I suggest that there are other ways in which one can make sure that the size of this problem, which is real, can be mitigated. Perhaps between now and Report stage, if the amendment were not proceeded with, the people who are concerned outside the Chamber could be satisfied that the new system ought to be given a fair wind.
§ The Lord Chancellor
I think that the Committee would do very well to heed the warning given by the noble Lord, Lord Graham. Obviously I have every sympathy with the desire to save debtors distress and damage which they may suffer by failing to apply for a certificate of satisfaction, but the statistic quoted by the noble Lord, Lord Mishcon, means something very different to me from what it seemed to mean to him. I absolutely agree that in a very large number of cases satisfaction is not in fact registered and therefore the registration is not cancelled. This can only really be because neither party bothers to do it and because no very great harm is done when they do not.
The noble Lord, Lord Graham, rightly referred to the genesis of this, which I explained at rather greater length on Second Reading. Not acting with what you might call precipitate speed, I thought that a figure of £10, which was the figure thought proper in 1870 or thereabouts, was perhaps not appropriate to 1985. So I decided to raise it to £50, which was not as much as inflation would have done. However, there was then a howl of indignation from creditors all over the country. The noble Lord, Lord Graham, and a number of other very distinguished persons from both Houses and from outside came to tell me that I was doing wrong in raising it from £10 to £50. Eventually they said, "Let us run the register ourselves". I said, "Very well, if you want to run the registry yourselves, run it yourselves", and this is what the Bill proposes.
The idea that I think the amendment has is that all judgment creditors ought to be under an obligation to register satisfaction. I believe that to be both punitive of the judgment creditor and impracticable. Of course 985 a very great number of judgment creditors, but still a tiny minority of the whole, have computerised systems. All these water rates people who get judgment debts run on a computer and I have no doubt that they would find it very easy indeed to make it office practice to register satisfaction. Although it would cost them some money, perhaps they might think it worth while.
But the ordinary judgment creditor is not like that at all. He is a little man, who has probably appeared in person in the county court on a default summons. He has judgment in default for money lent or for the price of goods sold and delivered and the debtor in default has simply submitted to judgment. He does not know the law; he has not had a solicitor; and what this amendment says is that if he does not know the law and does not have a solicitor, ignorantia legis neminem excusat; and if he does not within the time prescribed by the amendment register satisfaction, he is liable for an action for damages not merely for any loss but also for distress. Is anything more likely to multiply litigation? I can see debtors seizing their chance on perhaps having obtained money from the public on the green form scheme and saying, "I suffered enormous distress when I discovered my name was still on the register".
The fact is, as the noble Lord, Lord Mishcon, with his usual fairness pointed out, that if the debtor when he pays wants to get a certificate of satisfaction, he can go round to the court and get it. It will cost him a fee, says the noble Lord, Lord Mishcon; yes, it will cost him a fee of £1. If he therefore really suffers all this distress and all this loss by not having a certificate of satisfaction, he might as well go round and get it himself. But in my submission this is an impracticable and a punitive way of setting about it. Creditors with an efficient computerised system might be able to comply by monitoring and notifying repayment, although as many judgments are repaid by small instalments, that could be a real burden. But the very many litigants who sue in person, and small businesses, would be penalised and subject to tit-for-tat litigation.
The noble Lord, Lord Graham, is right in saying that creditors will be urged by operators of the registry voluntarily to notify the registry when the debts have been paid. He was quite right in saying that, and I am authorised to say it. It may be hoped that as the code will be for the benefit of the main users of the registry, who are credit reference agencies and the creditors who use the credit reference agencies, the necessary self interest would ensure that the payment of debts is notified and that the register notes it accordingly.
The course of action proposed in the amendment is too wide and too lacking in definition. It will cause confusion as to the role of the register of county court judgments. The duty imposed by the statute relates to the keeping of a register and enables regulations to prescribe the circumstances in which judgments are to be registered and cancelled. If damage and distress is suffered by a former debtor, it is much more likely to arise from the way the information has been used or from his own failure to take the steps open to him to obtain the cancellation of the entry than by reason of any fault on the register, creditors apart. That is 986 another reason why the creditor should not be punished by an action for damages—because it will be the keepers of the register and the use made of it which will have caused the damage. Virtually all judgments registered are simply money judgments and therefore the suggestive rule in subsection (3)(b) is really virtually pointless.
In these circumstances, although I agree about the importance of the subject matter, I would rather suggest that the noble Lord, Lord Mishcon, should not feel it necessary to press this, having had from behind him a piece of very salutary advice from the noble Lord, Lord Graham.
§ Lord Mishcon
I am always prepared to accept advice from wherever it comes, even if the advice be somewhat unexpected. But having said that, I am afraid I am going to ask the Committee to express an opinion. I want to say why before I ask it to do so.
I can remember, and so, too, can your Lordships, the discussions that took place on the Data Protection Bill, when it was emphasised on all sides of the Committee that we were now in an era of registration of particulars and information about individuals. We had to protect them. Some of the main organisations seeking information are those who wonder whether they ought to give credit or whether they ought not to give credit. Therefore the registration of an unsatisified judgment is a matter that certainly affects in a very material degree the reputation of traders, including little traders. Your Lordships are always anxious to protect little traders as well as big ones; and possibly, I may say, little ones rather more than big ones who can protect themselves.
Either it is a nonsense for creditors to be called upon to register that the judgment has been satisfied or it is not a nonsense. If it is not a nonsense, then my amendment ought to stand. If it is a nonsense, one wonders why a great point is being made by my noble friend Lord Graham and the noble and learned Lord the Lord Chancellor that the new voluntary organisation is going to suggest to all creditors that that is what they ought to do.
I would have thought, after hearing the noble and learned Lord the Lord Chancellor, that the logic was that they should not do anything of the kind; they should merely repeat the fact and publicise it. The debtors, for a payment of £1, could wander round to the county court and get the note of satisfaction, so why should the creditors do it?
There is a reason why debtors do not do it, and it is why we have the statistic of only 4 per cent. being registered as satisfied. It is not just a question of computers going wrong, or of the process taking time, or of it not being in existence. It is because we are dealing with little people who do not know what happens. If one looks at many of the county court cases—those of us who practise in the county courts—one will see on summons days people who are completely and absolutely bemused by what is happening; falling on bad times and honourably trying to meet their obligations, if necessary by instalments.
When they have acted honourably to that extent and when they have satisfied the debt, are they not entitled to have the registration cancelled? Is it not the 987 person who is usually much more knowledgeable and usually in a much better position, although not always—the creditor—who should register the fact that the judgment has been satisfied? I am sorry that the noble and learned Lord could not agree with me, but I am going to test the opinion of the Committee.
§ 6.21 p.m.
§ On Question, Whether the said amendment (No. 53) shall be agreed to?
§ Their Lordships divided: Contents, 73; Not-Contents, 130.988
|DIVISION NO. 1|
|Amherst, E.||Kaldor, L.|
|Ardwick, L.||Kilmarnock, L.|
|Attlee, E.||Kirkhill, L.|
|Aylestone, L.||Lawrence, L.|
|Beswick, L.||Llewelyn-Davies of Hastoe, B.|
|Birk, B.||Lockwood, B.|
|Blyton, L.||Longford, E.|
|Boston of Faversham, L.||Mackie of Benshie, L.|
|Bottomley, L.||Milner of Leeds, L.|
|Brockway, L.||Mishcon, L.|
|Brooks of Tremorfa, L.||Molloy, L.|
|Carmichael of Kelvingrove, L.||Nicol, B.|
|Cledwyn of Penrhos, L.||Oram, L.|
|Collison, L.||Parry, L.|
|Craigavon, V.||Phillips, B.|
|David, B.||Pitt of Hampstead, L.|
|Davies of Leek, L.||Ponsonby of Shulbrede, L. [Teller.]|
|Dean of Beswick, L.|
|Diamond, L.||Raglan, L.|
|Elwyn-Jones, L.||Rochester, L.|
|Ennals, L.||Ross of Marnock, L.|
|Ewart-Biggs, B.||Serota, B.|
|Falkender, B.||Shepherd, L.|
|Fitt, L.||Shinwell, L.|
|Gallacher, L.||Simon, V.|
|Galpern, L.||Stallard, L.|
|Glenamara, L.||Stedman, B.|
|Gregson, L.||Stewart of Fulham, L.|
|Grey, E.||Stoddart of Swindon, L. [Teller.]|
|Hampton, L.||Underhill, L.|
|Hanworth, V.||Wallace of Coslany, L.|
|Houghton of Sowerby, L.||Whaddon, L.|
|Hutchinson of Lullington, L.||White, B.|
|Irving of Dartford, L.||Wilson of Rievaulx, L.|
|Jeger, B.||Winchilsea and Nottingham, E.|
|Jenkins of Putney, L.|
|John-Mackie, L.||Winstanley, L.|
|Airey of Abingdon, B.||Campbell of Croy, L.|
|Alexander of Tunis, E.||Carnegy of Lour, B.|
|Allerton, L.||Cathcart, E.|
|Ampthill, L.||Chelwood, L.|
|Auckland, L.||Coleraine, L.|
|Avon, E.||Colwyn, L.|
|Bauer, L.||Constantine of Stanmore, L.|
|Belhaven and Stenton, L.||Cork and Orrery, E.|
|Beloff, L.||Cox, B.|
|Belstead, L.||Davidson, V.|
|Boothby, L.||De La Warr, E.|
|Boyd-Carpenter, L.||Denham, L.|
|Brabazon of Tara, L.||Denning, L.|
|Brougham and Vaux, L.||Ellenborough, L.|
|Bruce-Gardyne, L.||Elliot of Harwood, B.|
|Buxton of Alsa, L.||Elton, L.|
|Caccia, L.||Faithfull, B.|
|Cameron of Lochbroom, L.||Fanshawe of Richmond, L.|
|Campbell of Alloway, L.||Fraser of Kilmorack, L.|
|Gainford, L.||Mountevans, L.|
|Glenarthur, L.||Mowbray and Stourton, L.|
|Gowrie, E.||Munster, E.|
|Gray of Contin, L.||Newall, L.|
|Gridley, L.||Norwich, Bp.|
|Grimston of Westbury, L.||Orkney, L.|
|Hacking, L.||Orr-Ewing, L.|
|Hailsham of Saint Marylebone, L.||Pender, L.|
|Peyton of Yeovil, L.|
|Harmar-Nicholls, L.||Plummer of St. Marylebone, L.|
|Hayter, L.||Polwarth, L.|
|Hemphill, L.||Portland, D.|
|Henderson of Brompton, L.||Radnor, E.|
|Henley, L.||Rankeillour, L.|
|Holderness, L.||Rawlinson of Ewell, L.|
|Home of the Hirsel, L.||Reay, L.|
|Hood, V.||Renton, L.|
|Hornsby-Smith, B.||Renwick, L.|
|Hunter of Newington, L.||Rochdale, V.|
|Hylton-Foster, B.||Rodney, L.|
|Ingrow, L.||Seebohm, L.|
|Kaberry of Adel, L.||Selkirk, E.|
|Kilmany, L.||Shannon, E.|
|Kinloss, Ly.||Skelmersdale, L.|
|Kintore, E.||Stanley of Alderley, L.|
|Lane-Fox, B.||Stockton, E.|
|Lauderdale, E.||Strathspey, L.|
|Lindsey and Abingdon, E.||Sudeley, L.|
|Long, V. [Teller.]||Swansea, L.|
|Lucas of Chilworth, L.||Swinton, E. [Teller.]|
|Lyell, L.||Terrington, L.|
|McAlpine of West Green, L.||Teviot, L.|
|Mancroft, L.||Teynham, L.|
|Margadale, L.||Thomas of Swynnerton, L.|
|Marley, L.||Tranmire, L.|
|Marshall of Leeds, L.||Trefgarne, L.|
|Maude of Stratford-upon-Avon, L.||Trumpington, B.|
|Merrivale, L.||Vaux of Harrowden, L.|
|Molson, L.||Vestey, L.|
|Monk Bretton, L.||Vickers, B.|
|Monson, L.||Vivian, L.|
|Montagu of Beaulieu, L.||Ward of Witley, V.|
|Montgomery of Alamein, V.||Westbury, L.|
|Morris, L.||Whitelaw, V.|
|Mottistone, L.||Wynford, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 6.32 p.m.
§ Clause 50 agreed to.
§ Clause 51 agreed to.
§ Lord Hutchinson of Lullington moved Amendment No. 54:
§ Before Clause 52, insert the following new clause:
§ ("Compensation for miscarriages of justices.
§ .—(1) The Secretary of State may, with the approval of the Treasury, by regulations make provision for the payment of compensation, in such circumstances and subject to such conditions as may be prescribed, to persons suffering loss or damage as the result of a miscarriage of justice, and such regulations may in particular provide for the payment of compensation—
- (a) to a person whose conviction by any court has been quashed on appeal or on a reference by the Secretary of State;
- (b) to a person charged with an offence where the court before which proceedings for the offence are brought certifies that there was no reasonable ground for the institution of the proceedings.
§ (2) Regulations to which this section applies shall be laid before Parliament in draft and shall not be made unless the draft has been approved by resolution of each House of Parliament.").
§ The noble Lord said: This amendment deals with compensation for miscarriages of justice and qualifies 989 under every head for an unsympathetic response from the noble and learned Lord the Lord Chancellor in that it adds to the ragbag of the Bill, it does not deal with civil law and involves a call on public funds. Nevertheless, I suggest that it deals with a scandal which should be set right and that this is an opportunity for that to be done. Although it deals with criminal matters, the Bill to some extent deals with legal aid—for example, in criminal proceedings—and whereas legal aid for a person charged with an offence in a criminal court is of the greatest possible importance, if in fact that trial ends with a miscarriage of justice, compensation to that person is even more important.
§ In the administration of criminal law it is inevitable that mistakes will be made at some time or other, and when those mistakes lead to an unjustified loss of liberty surely the state should provide some effective remedy. Loss of liberty, loss of livelihood, loss of reputation and loss of family are all fundamental deprivations. In this country, I think alone of the other members of the Council of Europe, there is no statutory right to compensation, however outrageous the miscarriage of justice. Indeed, in spite of ratifying in 1976 the United Nations covenant on civil and political rights that a person who has suffered punishment as a result of a wrong conviction shall be compensated according to law, we do not have any such statutory right in this country. Only if a person receives a free pardon under the Royal Prerogative, or the conviction is quashed on a Home Office reference, may that person receive an ex gratia payment—only "may", in those circumstances.
The provisions of this amendment are very strict, as the Committee will see. The amendment states:
The Secretary of State may, with the approval of the Treasury—
the noble Lord, Lord Boyd-Carpenter, will be pleased about that, I am sure—
by regulations make provision for the payment of compensation, in such circumstances and subject to such conditions as may be prescribed, to persons suffering loss or damage as the result of a miscarriage of justice and … may in particular provide for the payment of compensation—
§ Therefore, it is not a question of compensating persons who are acquitted. That is not the point. It is compensation for persons who have their convictions quashed on appeal or on a reference by the Secretary of State, and, if acquitted, only if the judge certifies that there was no reasonable ground for the institution of proceedings. That is a very strict set of circumstances.
§ I submit to the Committee that it is not satisfactory that at the moment the only compensation should be an ex gratia payment which is left to ministerial discretion and, indeed, left to the Home Secretary, who is himself responsible for the police. It might be, of course, that an action of the police has been responsible for the miscarriage—not of course in all cases, but it might be so. Therefore, I suggest that it is an unsatifactory situation. It is unsatisfactory because, first, compensation is ex gratia and is not a right; and, 990 secondly, it should not be left to the Home Secretary to advise on that ex gratia payment.
§ I urge the Committee that this is an opportunity to set right a situation which I have described in words that have been perhaps, a little heightened. However, when one sees the appalling results of those few miscarriages of justice which are, and always will be, in any system, however good, then I am sure the Committee will want to take this opportunity. I beg to move.
§ Lord Simon of Glaisdale
Irrespective of the merits of this proposed new clause, I respectfully submit that your Lordships should look very warily on a matter of this importance being proposed to be dealt with by subordinate legislation:The Secretary of State may … by regulations make provision for the payment of compensation, in such circumstances and subject to such conditions as may be prescribed".One could hardly get wider words than those. They would be objectionably wide even in a statute, and in my respectful submission they are quite unsuitable to be dealt with by regulations.
§ The Lord Chancellor
I was a little surprised to hear the noble Lord, Lord Hutchinson, say that he did not expect me to give a very sympathetic reply to this. I always try to be as sympathetic as I can, but I have to say one or two things to him. I think that to begin with he overstated his case.
It is true that in the strict sense, as he correctly stated, there is no statutory right to compensation; but, as he also implied, where there has been a reference under Section 17 of the Criminal Appeal Act 1968, or a free pardon is given under the Royal prerogative of mercy, it has been for many years the custom to give an ex gratia payment. He calls it ex gratia but in fact the amount is settled in practice by an independent assessor.
A review of our practice is under way this year, as the noble Lord must know, and in the course of it we are looking carefully at a number of proposals for changing the present system, including whether compensation should be put on a statutory basis, which is the very thing that he is asking for. We expect to be able to announce our conclusions later in the year, which means that we do not propose an indefinite delay. Of course I cannot today anticipate the outcome of a review. Criminal matters are not apposite in the ordinary course for this Bill, but in the light of what I have said publicly, I should think that it is quite an honourable course for the noble Lord to withdraw his amendment on this occasion and remind me of my words if I should fail to live up to proof.
§ Lord Hutchinson of Lullington
Having heard the words that have fallen from the lips of the noble and learned Lord the Lord Chancellor, it would be churlish of me to pursue this matter any further. I am most grateful to him for the information in relation to the review of our present practice of which he informed the Committee and the encouragement which he is clearly going to give to those responsible for that review. In those circumstances, I happily beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.991
§ Clause 52 agreed to.
§ On Question, Whether Clause 53 shall stand part of the Bill?
§ Lord Hacking
If I may, I should like to address a few words to the Committee on Clause 53. I do so in a sense of gratitude to the noble and learned Lord the Lord Chancellor and his department. Arbitration law has had considerable attention from your Lordships' House in recent years. There was of course the Arbitration Bill in 1978 which became the Arbitration Act 1979. Clause 53 is another example of arbitration law reform that is being invited for consideration by the noble and learned Lord the Lord Chancellor.
The issue is not, I suggest, whether this arbitration law reform should be made but the mode of it. This clause seeks to deal with the problem—not infrequently arising—when one party to an intended three-arbitrator tribunal fails to appoint his arbitrator and in the result no third arbitrator is appointed and no arbitration, in that stalemate, can take place. It is clear that in those circumstances remedy is needed. Indeed remedy was provided in the Arbitration Act 1950. The reason why this clause is before the Committee is that in the passage of the 1979 Arbitration Act that remedy was inadvertently taken away from the statute book.
Within the context of statutory experience, I suggest that there are two ways of resolving this problem. There is the way that is set out in Section 7 of the Arbitration Act 1950 in relation to two-arbitrator tribunals. The procedure in Section 7 is simple. When one of the parties has failed to appoint his arbitrator, this being a two-arbitrator tribunal, the other party can serve a notice in writing upon the defaulting party. If the defaulting party does not thereafter, within the period of the next seven days, make his appointment, the complaining party can go forward and invite his arbitrator to sit as the sole arbitrator, and hence the arbitration can go forward.
Thus I suggest to the Committee that this procedure is simple, expeditious and does not require recourse to the courts, although there is express provision in Section 7 for the courts to set aside an appointment, made in the manner that I have just described when, for example, there has been a mistake or some wrong has resulted from that appointment. That is one method of dealing with this problem.
The other method is to be found in Section 10 of the Arbitration Act 1950. This is the method that is proposed to be adopted here in Clause 53. The procedure in Section 10 and in this Bill is more complicated. It goes like this. When the party who has appointed his arbitrator finds that another party has not, he is entitled to serve his notice in the way that I have described on the defaulting party. Thereafter, if the defaulting party does not appoint his arbitrator, the arbitration cannot go forward because the next step—and this is the proposal in Clause 53—is that the party not in default then has to make an application to the High Court by way of summons for the appointment of another arbitrator. It is only therefore by recourse to the courts that the matter can be remedied.
992 What I am suggesting to your Lordships' Committee is that the procedure set out in Section 7 of the 1950 Act is more desirable and the better procedure. I am therefore respectfully inviting the noble and learned Lord the Lord Chancellor kindly to give further consideration to this other method of dealing with the problem.
As I understand it, the justification of putting Clause 53 in the form in which it has been put before your Lordships' Committee is that it will produce the result which accords with the original intention of the parties to the arbitration agreement—namely, that they will get their three-arbitrator tribunal instead of a sole arbitrator arising out of the default of one of the parties in not appointing an arbitrator.
However, I suggest that this ignores the reality of the situation. First, the need for invoking this clause arises only when one party has failed to operate his duty under the arbitration agreement, and indeed has been in breach of the terms of the arbitration agreement. Second, the need for invoking this clause is invariably because one party is deliberately seeking to frustrate the arbitration.
In these circumstances, what is to be done? I believe, for the reasons that I have put before this Committee, that the correct course is to take the simpler measure.
May I sum up my arguments in this way? I put forward four reasons why I suggest the Section 7 procedure is the right approach. Firstly, this procedure is more expeditious, less costly and can be done without recourse to the courts. Secondly, the Section 7 procedure is a more effective and swifter means of thwarting those who fail to appoint an arbitrator in order to frustrate the process of the arbitration. I must tell the Committee that these occurrences are not infrequent. Nor is it infrequent that one party to an arbitration fails to appoint his arbitrator.
Thirdly, the Section 7 procedure avoids the problem of service of a summons abroad where foreign parties are involved. This frequently is the case. Fourthly, the adoption of Section 7 would bring the treatment of a three-arbitrator tribunal into the same category as the treatment of a two-arbitrator tribunal. In other words, whether the problem arises under a two-arbitrator tribunal or under a three-arbitrator tribunal, when one of the parties has defaulted in an appointment there would be, in following Section 7, consistency. I venture to suggest that consistency in the law—a discipline which is not always known for its consistency—would add to clarity and would help all persons who participate in arbitrations in the United Kingdom.
Those are the reasons why I respectfully ask the noble and learned Lord if he could give further considering to using what I have just been referring to as the Section 7 procedure, as opposed to the Section 10 procedure.
§ The Lord Chancellor
There is one point I should like to make at the outset. The reason why this clause is in the Bill is because there is a defect in the law which needs to be remedied as soon as possible and cannot wait for a full review of the law of arbitration, which I believe will be carried out. As the noble Lord on the Cross-Benches has said, until 1979, where two parties agreed that a dispute should be referred to three 993 arbitrators, one to be appointed by each party and the third by the two arbitrators, then if one party failed to appoint his arbitrator the other party, who had appointed his arbitrator, could appoint that arbitrator to act as sole arbitrator.
Owing to an error in the Arbitration Act 1979—an Act, I must say as the noble and learned Lord enters the Chamber, for which he, and not I, was responsible—this provision was inadvertently deleted. At present, if one party to such an arbitration agreement fails to appoint an arbitrator, the whole arbitration process is frustrated. Obviously this situation cannot be allowed to continue: hence Clause 53.
Of course, as the noble Lord, Lord Hacking, has said, it would have been perfectly possible to revert to the pre-1979 situation so that the arbitrator who had been appointed could act as sole arbitrator. But in the event the matter was referred to the sub-committee of the Commercial Court Committee under the chairmanship of Mr. Justice Mustill (who will soon become Lord Justice Mustill). They recommended the solution proposed in the existing clause, under which the party who has appointed an arbitrator can apply to the High Court for the court to appoint an arbitrator on behalf of the party in default.
Who am I to intervene in these great matters? However, this is the first of the reasons that I should put forward to the noble Lord, Lord Hacking, for preferring Clause 53 as it stands—at any rate for the moment because these matters are not the law of the Medes and Persians, which cannot be changed. The first of the reasons is that Mr. Justice Mustill's Commercial Court Committee is probably a fairly authoritative body, and that is what they have proposed. What I normally try to do in law reform situations, especially those which do not brook delay, is to take the opinion of the experts in the particular branch of the law which is concerned. I took that opinion. It seems to me that I followed a consistent policy and that I may have been right to do so.
But if we probe a little more deeply into the merits, I think there are two reasons which governed Mr. Justice Mustill and his friends. The first is that, since the parties originally agreed that their dispute should be settled by a three-man arbitration tribunal, the solution proposed would more closely give effect to that agreement; and, indeed, it is in accordance with the policy in the Arbitration Act 1979. That is one reason, and the noble Lord referred to that.
Secondly (and I think this may weigh with the Committee) this is a solution posed in the draft model law on arbitration of (I am sorry for the acronym) UNCITRAL—the United Nations Commission on International Trade Law. This country has not as yet adopted that law. But the adoption of that law, or at least some of its provisions, is one of the matters being considered by the sub-committee looking at arbitration law. I should submit that it would be a pity if at this stage we adopted a provision diametrically opposed to it.
The noble Lord, Lord Hacking, has asked me to look at this matter again. I think the best I can do for him is to say that I have no very strong convictions apart from those that I have disclosed. Therefore, I am 994 perfectly open to suggestions. But the three reasons I have given—first the solution of Mr. Justice Mustill, to whom it was referred; secondly, that there is a certain inconsistency with the original agreement and the Act of 1979; and, thirdly, the UNCITRAL point—are good reasons for keeping what is essentially an emergency provision (though it may only be provisional) in legislation.
§ Lord Denning
I have had this very problem which has come before the Court of Appeal, when two arbitrators are to be appointed and one of the parties does not appoint its own arbitrator and the whole thing might seem to be at an end. In that situation, what is to be done? Lord Justice Mustill is probably the greatest expert on the law of arbitration at the moment, especially after his first-rate book upon it. I should think that the draft suggestions of the committee under his chairmanship would probably be the best that can be devised.
§ Clause 53 agreed to.
§ Clauses 54 and 55 agreed to.
Lord Elwyn-Jones moved Amendment No. 55:
After Clause 55, insert the following new clause:
. In section 40 of the County Courts Act 1984, there shall be inserted after subsection (1)—
(1A) No order shall be made under subsection (1)(d) if the High Court considers that the amount recoverable in respect of the claim is likely to exceed twice the monetary limit of the jurisdiction of the county court.".").
§ The noble and learned Lord said: This amendment arises from a feeling of anxiety that there is excessive transfer of substantial personal injury actions taking place from the High Court to the county court. Of course, actions of this kind are of very great importance to maybe the seriously injured plaintiff. What has happened appears to be this. The general jurisdiction of the county courts in contract and tort is presently limited to £5,000. That is the county court limit. There has always been a power to enlarge that in a particular case if the parties agree, which is sensible enough, or to transfer a case from the High Court to the county court if it seems unlikely that the amount in dispute will exceed the county court limit.
However, in 1981 an important change was enacted. Tucked away in a forest of minor amendments in Schedule 3 to the Supreme Court Act was a provision which allowed a transfer to the county court if:
the High Court considers that the proceedings are not likely to raise any important question of law or in fact and are suitable for determination by a county court".
That is now enacted as Section 40(1)(d) of the County Courts Act 1984 which, incidentally, is a purely consolidating Act. The statute does not make any distinction between personal injury actions and other actions.
However, in July, 1984 a practice direction was issued stating that,
every action set down under automatic directions (i.e. personal injury actions, for which no summons for directions is required) will be forthwith examined by a master. If it appears to him that the question of transfer to a county court ought to be considered, he will direct the court to give notice to the parties to attend at a given date and time for such consideration".
That scheme is apparently now in full operation. It is complained that masters are contemplating transfer in virtually every personal injury and fatal accident action that comes before them. One master, so I am informed, on 11th January this year was dissuaded only with difficulty from ordering the transfer of a fatal accident case where liability was in dispute and the likely value of the claim was in the order of £70,000.
§ 7 p.m.
§ As I said at the beginning, substantial personal injury claims are serious matters for the parties concerned. Indeed, they can be of lifelong importance to a seriously injured plaintiff. Whatever the phrase "important question of fact" may mean, for a seriously injured claimant there can be no more important question than the question of whether or not the defendant was negligent.
§ Parliament has retained in the new County Courts Act the concept of the county court limit. If that means anything at all, it means that different types of damages action should be treated broadly alike, the larger claims—those above the £5,000 limit—being tried in the High Court. If it is the case (and, of course it is) that the High Court is overworked, consideration should perhaps be given—I am not putting it forward, but it is something that should be considered—to raising the county court limit, if the matter is to be dealt with in this way, and not simply discriminating against personal injury actions which, it is said, is what happens at present.
It is not being critical of the county court judges to say that few have a turnover of actions involving such substantial sums of damages sufficient to acquire much experience in that field. The anxieties of those who are practising in this field therefore give rise to, and explain, the amendment that I am now moving: that in Section 40 of the County Courts Act 1984 there shall be inserted a provision that,
No order shall be made under subsection (1)(d) if the High Court considers that the amount recoverable in respect of the claim is likely to exceed twice the monetary limit of the jurisdiction of the county court.".
That means, "All right, up to £10,000, go ahead", but anything above that should go to the High Court. I beg to move.
§ The Lord Chancellor
This amendment seeks to amend Section 40 of the County Courts Act 1984 which derives in its immediate provenance from the Supreme Court Act 1981. I start, therefore, with a slight assumption against changing—I shall not use any pejorative word—legislation that Parliament has enacted as recently as that. The section provides for transfer downwards if, under, subsection (1)(a) the parties consent; if under paragraph (b) the High Court considers that the amount is likely to be within the monetary limit of the jurisdiction of the county court; or if, under paragraph (d), which is the one we are more concerned with, the High Court considers that no important question of law or fact is raised and the matter is suitable for determination by the county court. There are various provisions as to costs and so on.
The amendment would limit the discretion of the High Court and say, by statute, in respect of a 996 statutory provision so recently enacted, as I have shown, that no order can be made or shall be made under subsection (1)(d), that is, no important question of law or fact, if the High Court considers that the amount recoverable in the claim is likely to exceed twice the monetary limit of the jurisdiction of the county court.
There are two questions of principle, apart from that I have already raised, which I suspect the noble and learned Lord should consider. Apart from the fact that we are dealing with very recently enacted legislation, I must return, first, to a point to which I come very often. It is wasteful of judicial resources to have a High Court judge dealing with a case that can be properly dealt with by a circuit judge. If the noble and learned Lord says that many of these personal injury cases are dealt with by a circuit judge sitting as a deputy High Court judge, which may be the case, then I say that the amendment is without point altogether.
Section 40, which it is proposed to amend, says that the High Court, before it makes an order, must consider that the proceedings are not likely to raise any important question of law or fact and are suitable for determination by a county court. If that condition, or, rather, if both parts of that condition, are fulfilled, what more need be said? If the High Court considers that the case is suitable for hearing in the county court, then, surely, ex hypothesi, it should be heard in the county court and not, say, by a circuit judge sitting as a deputy High Court judge in the High Court.
Secondly, the point relates to the discretion of the circuit judge if the amendment was passed. This is a serious objection on merits to the amendment proposed, apart from the two that I have mentioned. At the moment when a circuit judge hears the case sent down from the High Court under the last paragraph of Section 40 his discretion is unfettered. He can order damages, which are usually large in personal injury cases. The noble and learned Lord made those damages his first line of support for the amendment. They are usually large. If the circuit judge hears such a case, his discretion is unfettered. He can order £50,000 worth of damages, if this is transferred downwards as matters stand. He is therefore in as good a position as the High Court judge wearing the reddest of red tippets to his gown.
However, if the amendment was passed, look at what would happen? He would know in advance that the High Court had considered that the case was not worth more than £10,000. Is that really good for plaintiffs? I should have thought that it was bad; and as the interest of those who have considered this amendment is that of the plaintiff and not the defendant, I would suggest that they are pickling a rod for their own backs.
§ Lord Elwyn-Jones
Those who have raised these matters with me feel restless that personal injuries actions are tending to be treated in the courts as a tiresome distraction from the real work of the courts to fight commercial cases. It may be that that is not a fair summation of the situation. I have ventilated the point, but I now beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clauses 56 to 61 agreed to,997
§ Lord Mishcon had given notice of his intention to move Amendment No. 56:
§ Page 44, line 22, at end insert—
(" . In section 23 after subsection (2) insert——
(2A) Subsection (1) does not apply to any act done by a person at the direction and under the supervision of another person if it could have been done by that other person for or in expectation of any fee, gain or reward without committing an offence under this section.".").
§ The noble Lord said: This appears to me to be similar to Amendment No. 8, which was moved by the noble Lord, Lord Morris. The noble and learned Lord the Lord Chancellor was good enough to say that he would consider the point that was then raised. In those circumstances, and on that understanding, I do not intend to move this amendment.
§ [Amendment No. 56 not moved.]
§ Lord Mishcon moved Amendment No. 57:
§ Page 44, line 22, at end insert—
(" . In section 28 (regulations), after subsection (3) insert—
(3A) Regulations about the keeping of the roll may make provision for the following matters for the purpose of maintaining the roll as correctly as is reasonably practicable
§ The noble Lord said: With the Committee's approval, I should also like to speak to Amendment No. 59.
Amendment No. 59: Page 45, line 25, at end insert—
(" . In section 87 (interpretation), after "removal at his own request" in subsection (2)(a) insert "or by virtue of section 28(3A)".").
§ I wish to make it quite clear that this amendment is put forward at the request of the Law Society. In summary, the purpose of the two amendments is to enable regulations which are made under Section 28 of the Solicitors Act 1974—and those regulations are made by the Master of the Rolls with the concurrence of the Lord Chancellor and the Lord Chief Justice, and they are about the keeping of the roll of solicitors—to make provision requiring annual registration by solicitors for the purpose of retaining their names on the roll, so that the roll may be maintained as an accurate and up-to-date record.
§ Let me very simply explain the situation. At present, under Section 7 of the 1974 Act, the name of a solicitor is entered on the roll of proof of his admission as a solicitor. Section 47 of the Act empowers the Solicitors Disciplinary Tribunal to strike a solicitor's name off the roll for misconduct. Section 8 contains provisions to enable a solicitor to apply voluntarily for removal of his name from the roll—for instance, for the purpose of transfer to the Bar. Otherwise, a solicitor's name may only be removed from the roll on proof of his death. This means that, although the society is notified of the death of a solicitor in England and Wales if it appears from the death certificate that 998 he was a solicitor, there is no automatic notification if it is not apparent that the deceased was a solicitor or where the death occurs outside England and Wales.
§ If a solicitor does not continue to take out annual practising certificates under Section 9 of the Act, there is no means of knowing whether his address on the roll is up to date or, indeed, whether he is still alive. Indeed, it is not clear that a solicitor may presume the death of a solicitor who has been on the roll for a certain length of time without any information having been obtained as to his whereabouts. The roll of solicitors, which is an important roll, cannot therefore be relied on for statistical or other purposes as an accurate, up-to-date record of all members of the profession.
§ I look at the noble and learned Lord the Lord Advocate and I say with some envy that the position in Scotland is very much the position that I seek by this amendment. The position in Scotland is that the Solicitors (Scotland) Act 1980, Schedule 2, contains specific powers, which have been exercised, enabling the Lord President to authorise the Council of the Law Society of Scotland to require solicitors to register annually for retention of their names on the roll.
§ I ought to say at this stage—and the noble and learned Lord the Lord Chancellor may understand me well when I say it—that the regulations and the statutory provision in Scotland enable a fee to be charged; indeed, a fee is charged, and that fee is £10. It is thought by the Law Society which governs England and Wales that the fee here should be about the same sum as the current fee chargeable in Scotland.
§ I think that the noble and learned Lord the Lord Chancellor will permit me to say—and if he does not concur in what I am saying, I know that he will say so—that he has been good enough to intimate that he well understands the spirit of this amendment. He has also been good enough to tell me that the drafting of the amendment may not be precisely what is desired. To make the point very clear, this is not just an internal matter of the Law Society's organisation. The keeping of the roll, of course, is one of the public duties of the Law Society. I have already said that the regulations under Section 28 are made by the Master of the Rolls with the concurrence of the Lord Chancellor and the Lord Chief Justice. Indeed, various changes as regards this subject—for example, providing for computerisation of the roll—were made by Government legislation in 1974.
§ In these circumstances, if I was right in interpreting the kind of communication of the noble and learned Lord the Lord Chancellor to me as meaning that he does understand the spirit of this amendment and would not wish to oppose it, and that the sole question is one of draftsmanship, then may I ask that the normal procedure be envoked here; namely, that the Law Society should communicate with the very courteous and helpful officials of his department with a view to seeing that a suitably worded amendment appears at the Report stage? If that is so, I would, of course, withdraw the present amendment at this stage. I beg to move.
§ Lord Simon of Glaisdale
I do not at the moment see why the regulations that the noble Lord, Lord 999 Mishcon, wishes to see included cannot be made under subsections (1) and (3) of Section 28. If they can be, I hope that the statute book will not be encumbered with unnecessary regulation-making powers.
§ The Lord Chancellor
The noble Lord, Lord Mishcon, has perfectly accurately described the relationship between my department and myself as regards this amendment. I am sure that he would therefore wish—when I have said the little that I have to say—to take on board what has fallen from my noble and learned friend Lord Simon of Glaisdale. If I have it right, this is really a matter which would be more proper for the Law Society itself to draft (if they have the amendment slightly wrong) than for the Government draftsman. But I shall inquire from my department about whether I ought to intervene in the matter to which my noble friend Lord Simon has referred.
We agree that it is clearly desirable that accurate and up-to-date information on the numbers of solicitors should be available to the Law Society and others, and we also think that whether and how this is done is a matter for the internal management of the Law Society in which the Government would not seek to intervene. Personally, I would very happily accept a general improvement of this kind into the Bill on the assurance that this is the clear wish of the profession itself as ascertained through the Law Society. It is of course different, as the noble Lord, Lord Mishcon, has said, from matters in which I would think that the public interest was normally involved and Government assistance provided.
I am advised, rather in the same sense that the noble Lord, Lord Mishcon, suggested might be the case, that the powers to prescribe fees and procedures are not necessarily quite tightly enough tied in to the provisions of the Act of 1974, to which this is, in form, an amendment; so I can assure the noble Lord that I am anything but hostile to what is suggested. But I hope that what I have said may persuade him, at this stage at any rate, to invite those who helped him to give the matter a little more thought and to bring it forward at a later stage. I hope that meets the case.
§ Lord Mishcon
It almost does. I am pressing the noble and learned Lord with what I hope is not too much persistence. I said in my opening remarks—he will appreciate that I said it on purpose—that this was not considered to be a private internal matter of the Law Society; it was a matter of public importance. I referred to an Act of Parliament which dealt with the computerisation of these records, which was deemed to be a matter of public importance. I am asking him merely for one thing; and of course I am going to withdraw, on what he said. I am asking—and I repeat it—that the usual helpful co-operation between his department and the Law Society produce something by helpful co-operation. I am not asking anybody to draft something; I am asking somebody to co-operate in the drafting. That usual co-operation would then mean that there could come forward an amendment which could peacefully go through at Report stage, instead of my again being met with possible technical 1000 difficulties. On that understanding, if the noble and learned Lord can give it to me, I am perfectly prepared to withdraw the amendment.
§ The Lord Chancellor
I think I can promise that, although I have not asked anybody. It sounds very reasonable.
§ Amendment, by leave, withdrawn.
§ Lord Denning moved Amendment No. 58:
§ [Printed earlier: col. 746.]
§ The noble and learned Lord said: This is a reversion back to the first part of the Bill, which gave the Law Society by its council a new disciplinary measure in respect of inadequate professional services. That is to be operated by a committee. At the same time, it gave the council of the Law Society, again by a committee, power to investigate by going to the files of a solicitor, and so forth. Those are two new committees set up under this Bill.
That was recommended by Lord Benson's Royal Commission, but they made it perfectly plain that in their view the Investigating Committee should be separate from the Professional Purposes Committee, and that should be implemented. I shall read the relevant recommendation; it is on page 346, at paragraph 25.42 of Lord Benson's report. It says:
the members of the Professional Purposes Committee and the staff responsible to it should not be those responsible for the investigation process. Apart from the fact that these proposals are preferable from an administrative point of view, there is an important question of principle. The Professional Purposes Committee has a quasi-judicial responsibility to examine complaints dispassionately and to impose sanctions. It is important that its independent judgment should not appear to be prejudiced: this cannot be relied upon if its members and staff have already been concerned with the investigation process".
§ My amendment, at the end, is just the same and makes it clear that the committee which investigates the proceedings against a solicitor should be separate from the disciplinary committee, which is making orders against him, and the like; in other words, in order to carry out the principle recommended by the noble Lord, Lord Benson, I have put down this amendment. I should be very happy if the Law Society could operate it administratively, without compulsion. To make it quite clear, I would suggest that this amendment be put in the schedule. I beg to move.
§ The Lord Chancellor
As the noble and learned Lord says, he has raised this question before. I think that perhaps this is based on a misunderstanding of the situation vis-à-vis the Law Society, which is an independent body and which organises things in a way which I think on the whole is satisfactory. I do not myself claim to be an expert on the subject, and not having been Master of the Rolls for 16 years I cannot claim to know, even from the outside, quite the extent of the details of this matter. But, as I see it, the affairs of the solicitors' profession are organised in the following way. First of all, for really serious disciplinary offences the adjudication lies with the 1001 disciplinary tribunal, which is wholly independent of the Law Society and appointed by the Master of the Rolls; and of course it should continue to be so.
Within the Law Society itself there are two not quite separate but closely allied things. First of all, there is what I shall call the department, which is not a committee of the Law Society but the staff, which receives complaints. Secondly, there is the professional purposes Committee of the Law Society, which is a committee of the Law Society and which is in charge of what I have called the department; that is, the staff. The Law Society receives each year something like 6,000 or so complaints against solicitors. Under the present legislation, its powers to investigate are limited to cases which raise issues of professional misconduct, which amount to about a third of the total. The rest are either unfounded or are cases which involve negligence or shoddy work, for which recourse, if there is one at present, will lie through the courts.
On receipt, all letters of this kind are considered by the department. Where the society can do nothing, letters explaining the position are sent, referring where necessary to the existence of the society's negligence panel. But where there seem to be prima facie issues of misconduct, the department first of all does a preliminary investigation and asks for the solicitor's explanation. A number then are found at that stage to be unfounded. The remainder go to the Professional Purposes Committee. The committee consists of the president and vice-president and 12 members of the council, including such distinguished ex-presidents as Sir Max Williams and Sir Christopher Hewetson. It meets monthly. It discusses general issues of professional practice and discipline, and individual cases which raise policy issues. There are two panels, also meeting monthly—each has the same status as the full committee—and they deal with other individual cases.
The Professional Purposes Committee has a range of minor disciplinary sanctions, including reprimands and the imposition of conditions on the next practising certificate. That committee can also order that the society takes over a solicitor's practice. But cases of misconduct of serious importance are then referred to the independent tribunal of which I have spoken, which has wider and stronger powers. The principal changes made by the Bill in this area are the extension of the society's power in regard to shoddy work, powers to compel productions of papers for investigation, non-council membership of the Professional Purposes Committee—initially two non-council solicitors and four lay persons—and extensions of the Professional Purposes Committee's own disciplinary powers. That is the range of suggestions made by the Bill.
The effect of this amendment would insert a requirement into Section 79 of the Solicitors Act 1974 which permits the council of the society to delegate to committees such of its functions as it sees fit; that there should be two separate committees, one to investigate complaints and one to exercise the various disciplinary functions, instead of the single, unitary purposes committee as it exists at present.
The complete separation of functions was recommended by the Benson Commission to reduce the suspicion that lawyers look after their own and to 1002 make the independence of judgment of the Professional Purposes Committee. Some people have widely recommended it. It has not been, I believe, finally rejected by the society itself, but it points out, however, that there is a real advantage in the present system. The present system keeps both members and staff of the Professional Purposes Committee in close touch with the exact nature of the profession's practice, procedures and difficulties through involvement in the investigatory process.
The management consultants retained to advise the society on its internal structure have had their attention specifically directed to this particular matter. I would suggest to my noble and learned friend therefore that with this explanation it would be premature to tie the society's hands, particularly as the existing legislation, as amended by the Bill, would enable it, if it so decides, to create the separate committees for which my noble and learned friend asked with lay membership on each.
I do not think I need do more by way of explanation. I would submit to the Committee that with the explanation that I have given this is something which safely can be left to the society itself. It has not yet permanently rejected the idea of separate committees. It has every power to set them up if it wants to. Speaking personally, I would trust it to do what is necessary. There is a case both ways. It is not a matter about which I would care to be too dogmatic myself.
§ Lord Denning
I have had long experience of how the Law Society operates. They do it very well and very fairly, if I may say so. My amendment was put down only because of the Benson Commission recommendation. But judging from the explanation which my noble and learned friend has given they have it in mind, and they may implement it if they think it is right. I am quite happy with that, and I have pleasure in withdrawing the amendmement.
§ Amendment, by leave withdrawn.
§ [Amendment No. 59 not moved.]
§ Schedule 1 agreed to.
§ Schedule 2 [The Council for Licensed Conveyancers: supplementary provisions]:
Lord Graham of Edmonton had given notice of his intention to move Amendment No. 59A:
Page 46, line 20, at end insert ("of whom at least two shall be persons who represent the interests of consumers.").
§ The noble Lord said: I shall not move this amendment, but I give notice that I shall bring it back at a later stage.
§ [Amendment No. 59A not moved.]
§ Lord Morris moved Amendment No. 60:
Page 46, line 40, at end insert—
(d) the qualifications, experience and suitability required of persons to be elected or nominated as members of the Council.").
The noble Lord said: The more I look at this amendment, the more I am concerned about its necessity in the sense that when you consider that
Clause 34(1) embraces Schedule 2 and that subparagraphs (3) and (4) of paragraph 4 demand that the Lord Chancellor should approve a scheme under this schedule, it appears that this amendment is not necessary, but only if the words in paragraph 4(1)(c); namely,
the eligibility of persons for election or nomination",
embrace their "qualifications, experience and suitability".
It is clear that the Lord Chancellor, particularly when one considers the present incumbent, would at all times consider the "qualifications, experience and suitability", but it is important that Parliament spells out those points in the Bill if the words,
the eligibility of persons for election or nomination",
do not embrace these particular issues. I beg to move.
§ The Lord Chancellor
I fully understand and would endorse the desire on the part of my noble friend to ensure that members of the council are suitably qualified and experienced to devise and administer the regulations governing licensed conveyancers. A balance has to be struck between having self-regulation for the new conveyancers and ensuring adequate consumer representation. Accordingly, the Bill provides for the scheme governing membership of the Council, which will be provided by the initial Council, whom I think I appoint or at any rate approve, and I may modify the scheme as I think fit.
I hope that my noble friend will accept my assurances that these arrangements will ensure the appropriate balance of interests and possibly will do so in a more effective way than can the amendment. It would be difficult for the council to prescribe the "qualifications, experience and suitability" to be required of members of the council when membership will need to reflect the range of interests in the process of house transfer which was identified by the Farrand Committee.
There is no similar control on membership of the Law Society's council. It might therefore be inappropriate to place any restrictions on the licensed conveyancers' freedom to elect whomever they wish to represent them on this council. I hope that with that explanation the matter may not necessarily be pursued.
§ Amendment, by leave, withdrawn.
§ Schedules 2 and 3 agreed to.
§ Schedule 4 [Intervention in licensed conveyancer's practice]:
§ Lord Morris moved Amendment No. 61:
Page 51, line 30, at end insert—
("( ) the Council is satisfied that a licensed conveyancer has failed to comply with any rules made by the Council under this Act;").
The noble Lord said: Schedule 4, paragraph 1(1)(c) makes it clear that if the council are satisfied,
that a licensed conveyancer has failed to comply with any rules made by virtue of section 18 or 19",
the Council will have powers to intervene. Clause 18 relates to,
Keeping of accounts and establishment of client accounts",
and Clause 19 relates to,
Interest on clients' money".
I find that subparagraph rather restrictive. The reason for this amendment is that if any of the rules made by the council under this Bill are breached by a licensed conveyancer, then I believe that the council should have a right to intervene. I beg to move.
§ The Lord Chancellor
As my noble friend has said, the amendment would empower the council to intervene in the practice of a licensed conveyancer in any case where a licensed conveyancer has not complied with any of the rules made by the council. The power for the council to intervene in a licensed conveyancer's practice is related to the circumstances where there might be some danger to the consumer. That is what it is there for and it is thereby related to that issue.
The amendment would enable the council, however, to intervene in a much wider variety of circumstances. Let us suppose, for instance, that the licensed conveyancer is required by some rule of the council, which is quite likely, to have a sufficient number of O levels in his general education. The Law Society does not have equivalent powers to intervene in the practice in such a situation, and there is nothing to suggest that a blanket power of this kind is called for.
I think that the powers given in the Bill are a necessary safeguard for the consumer, but it does not follow that such powers need be available in relation to every conceivable breach of the rules. The Investigating Committee and the Discipline and Appeals Committee have the necessary powers to deal with cases which do not require the council to intervene in the practice. A breach of the conduct rules or supplementary training rules—for example, a failure to attend the further training course—would be capable of being dealt with quite adequately and properly by the committees in the form as drafted. The Law Society does not have the wide ranging powers proposed by the amendment, and perhaps my noble friend will think on reflection that there is no sufficient case for giving them to the council in this case. I submit that the powers conferred by the Bill as drafted are perfectly adequate.
§ Amendment, by leave, withdrawn.
Lord Morris moved Amendment No. 62:
Page 52, line 17, after ("delay") insert (", negligence or gross incompetence").
§ The noble Lord said: I am not trying to extend the realms of negligence by this amendment, but there are occasions when gross incompetence can harm the public but cannot in any way be described as negligent. A man could be extremely skilled and bring to bear a tremendous amount of skill and care—which I understand is the test for negligence. He reads the Guardian, he has a beard, and is very caring indeed. 1005 He brings to bear the standard of skill that the profession itself sets. However, his incompetence is such that, to put it in shorthand, the customer is severely harmed. This is a test which I understand would be very difficult to measure. On the other hand, I should be interested to hear what the Government think of the amendment and in particular whether it is helpful or whether it hinders the Bill. I beg to move.
§ The Lord Chancellor
The issue here is again rather esoteric, but the point is that one ought to draw a distinction between the draconian powers of intervention in practice, which is possessed by the council, and the more general powers of discipline and process for incompetence or negligence. Of course, it will be necessary for the council to take appropriate disciplinary action through the committees established for the purpose following complaints or allegations of negligence or gross incompetence. That is not in dispute.
But the council also has the almost draconian powers of intervention in the practice and these are not intended for that purpose. The power is needed to intervene in a practice where there has been undue delay to recover documents so that the outstanding elements of a particular transaction can be completed. In such cases disciplinary action alone will not be enough. This is not the case where the complaint relates solely to incompetence or negligence.
I say again that the Law Society's analogous powers relate only to cases of undue delay and these have not proved insufficient for their purpose. The powers of intervention are deliberately restricted to cases of emergency. It would in my view be wrong to extend them more generally in the way envisaged. Accordingly, I hope my noble friend will accept this explanation as answering his main point.
I am grateful to my noble and learned friend for that explanation, and, accordingly, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Schedule 4 agreed to.
§ Schedules 5 to 7 agreed to.
§ Schedule 8 [Transitional provisions and savings]:
Lord Graham of Edmonton had given notice of his intention to move Amendment No. 63:
Page 63, line 10, leave out sub-paragraph (a).
§ The noble Lord said: I rise to withdraw the amendment, and in so doing say that I intend to raise it at a later stage.
§ [Amendment No. 63 not moved.]
§ House resumed: Bill reported with amendments.