HL Deb 16 January 1990 vol 514 cc595-628

House again in Committee on Clause 1.

Lord Meston moved Amendment No. 12:

Page 2, line 40, at end insert — ("(6A) No order shall be made under this section so as to prevent a judgment or order for the payment of a sum of £5,000 or more (not being a judgment or order for the payment of money into court, or a judgment or order arising out of a registered agreement under the Consumer Credit Act 1974) from being enforced by writ of fieri facias.")

The noble Lord said: This is a somewhat technical amendment. However, it is necessary to consider it in this part of the Bill because as presently drafted the Bill would enable an order to be made under Clause 1(1) requiring certain judgment debts to be enforced only in the county court. It is necessary to explain, if only briefly, the reasoning behind the amendment.

In a carefully reasoned passage the Civil Justice Review recommended that judgment debts for £5,000 or more other than those arising out of regulated agreements under the Consumer Credit Act 1974 should be automatically enforced by the sheriffs. That was Recommendation No. 70 which I understand was generally welcomed. For some reason which I do not understand, the Bill does not incorporate that recommendation. Accordingly, I have drawn attention to that in this amendment, albeit in a modified form of the recommendation.

One of the reasons why people prefer litigation in the High Court, a tendency which in the simpler cases the noble and learned Lord the Lord Chancellor regretted, is that enforcement is by way of the sheriffs. That appears to be the consumer's choice. The sheriffs are preferred to the county court bailiffs. They are a privately funded body and they are generally regarded, and rightly so, as more efficient than the overworked county court bailiffs. Accordingly, this amendment provides that large debts—presently those in excess of £.5,000 —can be transferred away from the county court to be enforced by the sheriffs, relieving the overworked county court bailiffs who are provided and paid for out of public funds.

The amendment is phrased in somewhat negative terms but I hope that, whether or not it is accepted by the Government, they will indicate why, having regard to the interests of the users of the courts, they have not accepted this recommendation of the Civil Justice Review, particularly in view of the Government's indication that they regretted the preference of the consumer in the simpler cases to choose the High Court. In that context, perhaps the Government will take the opportunity to indicate whether in the county court there will be implementation of the long overdue provision for interest on judgment debts. This is in the nature of a probing amendment but, nevertheless, I hope that the government will give us some indication of their intentions. I beg to move.

Lord Ackner

As post-prandial amendments go, this must be one of the least stimulating. But it is right that attention should be drawn to it because as we are in many cases adopting what the Civil Justice Review proposed, we ought to know why this proposal has been rejected. Perhaps I may quickly refer to the salient points which are to be found at pages 115 and 116 of the report. The report says that, The consultation paper sought views on whether all debt claims should start in the County Court and be processed there". That point is then discussed in detail. In paragraph 622 concern was expressed that, if all debt cases were to be processed in the County Court, creditors might no longer be able to use the High Court Sheriff to execute the judgment". The report then goes on to say in paragraph 624 that the debate over who should execute judgment debts is a longstanding one. It is recorded that complaints were made about the ineffectiveness of the county court bailiffs and that this, led to calls for wholesale transfer of enforcement to the High Court sheriffs". Then, in paragraph 627 under the heading, "The distinguishing factor", it is said that, It is generally assumed that the main distinction lies between consumer debtors and business debtors with bailiff enforcement appropriate for the former and Sheriff enforcement for the latter. A similar, less well recognised distinction applies as between individual or small creditors and larger commercial creditors. Individual creditors may be more appropriately served by bailiff enforcement". The report then deals with one possible way of achieving the distinction and concludes by saying, The only workable mechanism is to set a monetary figure to operate as a form of classification … In order to keep the balance between consumer and commercial debts it is suggested that bailiff enforcement should apply to all County Court judgments up to £5,000, with all County Court judgments over that amount being enforced by the Sheriffs". Regulation 70(i) which is to be found on page 116 reads: Responsibility for executing County Court judgment debts should be as follows: —

  1. (a) All judgments below £5,000 and those arising out of regulated agreements under the Consumer Credit Act 1974 should continue to be enforced by County Court bailiffs.
  2. (b) Above that figure judgment debts should automatically be transferred to the Sheriffs for enforcement".
Both I and the noble Lord do not understand why that recommendation, which is well argued in the report, has not been adopted. We therefore tabled this amendment in order to be the wiser.

Lord Coleraine

The Law Society supports the amendment moved by the noble Lord, Lord Meston. I must say that I adopt his arguments. However, the Law Society goes a little further. The recommendation of the Civil Justice Review which was read out by the noble and learned Lord continues at the end of the second part to provide that it should also continue to be possible to transfer county court judgments over £2,000 to the sheriffs provided that they are of a commercial nature. That was achieved under Section 106 of the County Courts Act which provided in subsection (1)(a) that if, a judgment or order for the payment of a sum of money has been given or made by a county court … the judgment or order may, subject to rules of court, be transferred to the High Court". The Lord Chancellor is empowered under subsection (3) of that Act by order to specify an amount for the purposes of subsection (1). Moreover, by any such order he is able to, specify different amounts for different descriptions of judgment or order". I am not clear whether the Government have accepted the recommendations of the Civil Justice Review. If they are accepting them —and here I am probing —I should have thought that Section 106 of the County Courts Act was the ideal way to achieve that aim. However, I see from the Bill that this is one of the enactments which is to be repealed.

The Law Society strongly considers that the sheriff should continue to be able to execute judgments where there is a county court judgment of £2,000 or over, certainly in the case where it relates to a commercial debt. I hope that my noble and learned friend will be able to help us in the matter.

8.45 p.m.

The Lord Chancellor

The situation is that I intend to accept the proposal of the Civil Justice Review in this connection, just as I propose in the order to accept the general form of bands which it proposed, subject to anything which may emerge on the consultation which I shall hold before we make the order. Therefore there is no question of rejecting this proposal; it is intended to put it into effect by an order made under the provision. The only question is whether that should endure for all time or whether the changing patterns of litigation may require it to be reconsidered at some later time.

Therefore what we intend to do is really in accordance with the Civil Justice Review. We intend to retain a distribution of enforcement business between bailiffs and sheriffs broadly as at present. In order to achieve that aim I propose that new arrangements for the transfer of county court judgments for enforcement in the High Court will be laid down in the order to be made under Clause 1 of the Bill. The position will be reviewed in due course and all those concerned with enforcement will be consulted before any changes are made.

The background to this is that, at present, county court debts are enforced by county court bailiffs and High Court debts by under sheriffs. County court judgments for over £2,000 can be and frequently are, as has just been mentioned, transferred to the High Court for enforcement under Section 106 of the County Courts Act 1984 and the order made under it.

The Civil Justice Review recommended that all High Court judgments, of whatever value, should continue to be enforced by the sheriffs; that county court judgments above £5,000 (except those arising from regulated consumer credit agreements) should be transferred to the sheriffs for enforcement; and that county court judgments between £2,000 and £5,000 should be eligible for transfer, either on application or of the court's own motion. The first part of that is dealt with by the amendment, but the second part is not.

I certainly intend to accept these proposals in principle, but of course when the order is made it will be possible to adjust the figures if necessary in light of the consultation. However, al the moment I have no reason to suppose that we should wish to do so because the Civil Justice Review is comparatively recent. Therefore, my intentions are in line with the position desired by the proponents of this amendment and with the supplementary point which I have just made about debts between £2,000 and £5,000.

However, I do not regard it as necessary or desirable to set this out in statute. Indeed, there is every reason not to do so because it is part of the order-making arrangements which I suggest and because the key to using the new allocation arrangements to enhance the efficiency of the court service is their flexibility and the ease with which they can be adapted to follow the changing patterns of litigation.

That is my present intention and I have given assurances to that effect in correspondence to various interests such as the Sheriffs' Association —I think that is what it is called —and the under sheriffs, and so on. I repeat those assurances with ease here in this Chamber.

Lord Meston

I am most grateful to the noble and learned Lord the Lord Chancellor for his response and indeed for the support I received in connection with this amendment. I am only sorry that I could not make the matter more stimulating for the noble and learned Lord, Lord Ackner. It is reassuring in this respect to know that the Government intend to accept the provisions of the Civil Justice Review. Perhaps it would not have been necessary to table this probing amendment had there not been, as has already been said, a great mass of hidden secondary legislation underlying Clause 1. That point has however been commented upon, and will no doubt be commented upon again during the course of the evening. With the assurance that I have received, I am pleased to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 13 had been withdrawn from the Marshalled List.]

[Amendment No. 14 not moved.]

Lord Mishcon moved Amendment No. 15:

Page 2, line 43, at end insert — ("( ) Within five years of the implementation of this section, the Lord Chancellor shall establish a committee known as 'the Review Committee' to report to the general public on how far orders made under this section have succeeded in improving the administration of the courts, with particular reference to the volume of work removed from the High Court, and reductions in waiting periods for trial.").

The noble Lord said: I observe that no amendment has so far been accepted by the noble and learned Lord. In the post-prandial atmosphere that has already been mentioned by the noble and learned Lord, Lord Ackner, my hopes are high with the present amendment. Again, I say that because it is based largely upon the recommendations of the Civil Justice Review. We are carrying out some of the recommendations of that review which, as the noble and learned Lord has just said, is recent and should therefore be treated with contemporary respect. In the course of its recommendations at page 21 (paragraph 114) it states that there should be provision for: evaluation of their effectiveness by a fixed date and by reference to specified criteria, including the volume of work removed from the High Court and current waiting periods for trial".

Earlier the noble Baroness, Lady Seear, questioned whether the noble and learned Lord the Lord Chancellor had any ideas about what would happen if the resources were not sufficient or the recommendations contained in Part I were not being carried out. The Civil Justice Review recommended that if the present proposals proved ineffective there should be consideration of other measures which might include a unified civil court; in other words, the merger of the High Court with the county court. That gives rise to two points, the first being that Parliament and the public should have a review at a fixed period. We say in the amendment that it should be within five years of the implementation of the section. Secondly, an opportunity should be given not just to consider what has been done, and what could not be done, but whether what has been done is sufficiently beneficial to see that the programme contained in Part I is carried through, and that if it is not, alternatives can be looked at. It is with some confidence that I beg to move.

Lord Renton

I am in sympathy with the broad concept of the speech made by the noble Lord, Lord Mishcon. However, as to his amendment, I find it strange that there should be a report to the general public. Generally, when we ask Ministers to report progress upon the exercise of powers given to them by Parliament, we require that the report should be made to Parliament. On reflection, the noble Lord might think that that would have been a better way to deal with the matter.

Five years is rather a long time. I should have liked to have seen a progress report within, let us say, three years. In the circumstances that is what would be expected.

I wish to follow up the next part of the noble Lord's speech when he referred to the formation of one civil court consisting of the High Court and the county court. There is a better form of amalgamation. High Court judges, of the Queen's Bench Division at any rate, already have powers to decide civil and criminal cases. They did so when they went out on circuit. My noble friend Lord Boyd-Carpenter and I used to do it on the South-Eastern circuit. That was of great value in arranging the lists. Criminal cases were taken first and civil cases were taken next. Although the work was much lighter than today, the administration worked smoothly.

There is a strong case for leaving the High Court as it is but for an amalgamation of the county courts and the Crown Courts. They are already de facto amalgamated to a great extent. They are manned by the same judges (the circuit judges) who sometimes try criminal cases in the Crown Court, which is theoretically a branch of the Supreme Court under the Supreme Court Act, and at other times try civil cases under the County Courts Act. Curiously enough, not only are they the same judges; they sit in the same buildings which are often called Crown Courts; and they have the same staff. The de facto amalgamation has gone a long way already and we might just as well have it placed on the statute book. I should have thought that it could even have been done in the Bill, but the whole thing has been a bit rushed and it has not been thought through.

My conclusion is that although I accept the motive and the spirit in which the noble Lord has moved the amendment, I cannot go along with it as it stands. I hope, as I am sure he does, that something will come of it because he has made some constructive suggestions.

Lord Boardman

I, like my noble friend Lord Renton, support the spirit and the motive of the amendment, but like him I have grave reservations about it. A report to the general public does not seem appropriate. Like my noble friend, I believe that if we are to have a report, it should be to Parliament. Secondly, I wonder whether a committee to report within five years is appropriate because it is a continuing exercise. A continuing review through questions in another place and here in the normal process of parliamentary government is far more appropriate than setting up a special committee.

Lord Simon of Glaisdale

I venture to support the generality of the amendment. There are two reasons for doing so. One is that so much of what is intended to be done under Clause 1 will be by subordinate legislation, not all of it subject to affirmative resolution. Even if it were, it is liable to escape parliamentary notice and this proposal will give parliamentary notice. The second reason, as was said by the noble Lord, Lord Mishcon, is that we may want to move to an alternative system. The noble Lord, Lord Renton, suggested not the unified civil court but the amalgamation of the county and the Crown Court. As I read it, there is nothing in the amendment which would in any way run counter to what the noble Lord, Lord Renton, would like to see.

The important thing is that in some years' time we can assess whether what is proposed is working; whether sufficient resources have been devoted to it; whether there are sufficient courts, sufficient buildings and sufficient judges. We can then decide whether to continue in that way or move to some alternative way. As for what the noble Lord, Lord Boardman, said, it seems to me that it may be desirable to have a periodic review but there is nothing that I can see in the amendment that would prevent such a review. There is nothing to prevent the noble Lord from implementing that at Report stage and carrying the amendment further. I therefore venture to commend the amendment to my noble and learned friend.

9 p.m.

Lord Hacking

I had hoped before the noble Lords, Lord Renton and Lord Boardman, spoke that the advice to the noble and learned Lord from the Committee would be unanimous in favour of accepting the amendment or the principle.

The noble and learned Lord has told us in the course of the Committee's proceedings that it is his intention to implement the recommendations of the Civil Justice Review. We are grateful to hear that from him. As the noble Lord, Lord Mishcon, said in his address to the Committee, the Civil Justice Review has made this recommendation. It is to be found in paragraph 114 on page 21 under the title at the side of the paragraph, "Further action". It says: these measures should provide for evaluation of their effectiveness by a fixed date and by reference to specified criteria, including the volume of work removed from the High Court and current waiting periods for trial". The noble and learned Lord therefore has the support of the Civil Justice Review which he says he has every intention of implementing. Perhaps he will therefore be persuaded to accept the principle of the amendment if not the amendment itself.

Lord Ackner

I wish to associate myself with the general philosophy of the amendment. However, I have noticed that, in Schedule 1 on page 66 which deals with the advisory committee, that committee will provide an annual report on the discharge of its functions. The report will be laid before each House of Parliament. I would have hoped that what was sauce for the goose would be sauce for —and this is not a disrespectful word —the gander; I use it merely as a figurative observation. In view of the situation which we have described ad nauseam of the county courts and the circuit, I should have thought it would be most helpful if an annual report was made as to what developments have taken place as a result of the powers given under Section 1, with what consequences and the state of the resources, with particular regard to their deficiencies.

The second point I wish to make is that, while there may superficially appear to be much to be said for amalgamating the county court bench with the Crown Court, my noble friend Lord Renton has overlooked the situation of the High Court jurisdiction in the Crown Court. The Civil Justice Review's original consultative document produced the highly dangerous view —I say highly dangerous because that was the view taken by the Court of Appeal, the High Court judges and, modestly, by myself—that in order to operate the Crown Courts a body of High Court judges should be stationed around the country permanently. That is contrary to the recommendation of Lord Beeching that that was highly undesirable and no doubt would ultimately cause the destruction of the High Court Bench. Any move in the direction of amalgamating the two must have particular regard to the High Court jurisdiction and ensure that the High Court Bench, which is the thin red line which protects the citizen from the abuse of power, is not wrecked.

The Lord Chancellor

I agree entirely with the spirit of the amendment. It is right that the court service should be monitored having regard to the waiting times and the way in which it transacts its business, the volume of business handled and so on. The same is true of the High Court. We prepare figures annually; a copy of the court service report is sent to the Law Society and the Bar and to anyone else who has expressed an interest in receiving it.

I think it is better that this should be done annually. I understood my noble and learned friend Lord Ackner to suggest that in relation to the figurative phrase which he used. Certainly I am entirely in favour of an annual report. It would be right to lay it in the Library of both Houses and it should set out the state of business and the volume of business, having regard to the criteria that the Civil Justice Review had in mind.

I believe that that is effective and also that five years —which is what was suggested —is a long time. I suspect that it had in mind some more major review of the whole situation. If we were to do that we would have to put more detail into the statute.

My suggestion is that it would be preferable that the Committee should accept the undertaking that the Lord Chancellor will lay before your Lordships by putting it in the Library and making publicly available a court service report annually dealing with the criteria of performance that the Civil Justice Review mentioned. I am sure that we all have the same interests in mind and I believe that that is the best way in which to serve them.

Lord Mishcon

I am deeply grateful to the noble and learned Lord, as will be all those who participated in the debate on the amendment. We are grateful for his assurance that he regards it as beneficial that there should be a report. I was looking for a report that contained a little more detail as to how Part I was performing than the noble and learned Lord originally mentioned. He himself anticipated that that might be the desire.

I was not quite so clear about whether that was a personal undertaking of the noble and learned Lord. May he continue in his office personally for a long time, politically possibly not quite so long. That personal undertaking would not be binding in any way upon future Lord Chancellors unless it was in the Bill. Therefore if he says that at Report stage he will bring forward an amendment on behalf of the Government to deal with the matter of the report, I shall willingly withdraw the amendment.

Lord Renton

Before my noble and learned friend replies, I wonder if he would make it quite clear that he has in mind that it would be a report to Parliament.

The Lord Chancellor

That is what I have in mind. Perhaps I may be allowed to consider this as I had in mind a rather less formal report before the amendment was proposed. As the noble Lord knows, we already provide a court service and I had intended to continue that, but if a more formal obligation is required I shall consider it. Perhaps the noble Lord will allow me to do that without any commitment because I have not had a chance to consider fully its possible ramifictions but I shall certainly consider it carefully before Report stage and let him know the result of my consideration.

Lord Mishcon

I should be extremely discourteous, which I never want to be, if I were not to accept what the noble and learned Lord has just said. But in his consideration would he mind taking into account that I believe those who have participated in the debate were looking for a report, be it annually or biennially as he may consider fit, which really told Parliament —and I emphasise the word "Parliament" and accept the error of my ways in talking about the general public —how far in effect Part I had gone, what the difficulties were, and what was hoped to be achieved in order to get over those difficulties? If the noble and learned Lord would merely consider that —I ask for no more —between now and Report stage I am sure that the proper course for me to take is to beg leave to withdraw the amendment.

The Lord Chancellor

I shall certainly consider that. The report that I had in mind would have been as informative as possible. The idea was that the public should know the nature of the service being provided, and any deficiencies would be highlighted. That is helpful for a number of reasons, and I shall consider that aspect also.

Lord Mishcon

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 1 shall stand part of the Bill?

Lord Rippon of Hexham

I rise to oppose the question that Clause 1 stand part of the Bill. I do so in the context of the debates we have had this afternoon. I think it is generally agreed that Part I of the Bill is in essence an enabling part, and many will feel that it ought to be a separate Bill. It is an enabling measure couched in the widest possible terms.

Clause 1 is the key clause because, basically, it represents an abdication of parliamentary responsibility in regard to the jurisdiction, practice and procedure of the courts to the Executive. There is perhaps a glimmer of light. I was very grateful to my noble and learned friend the Lord Chancellor for what he had to say about judicial review. It had occurred to me that there might be a possibility that a future Lord Chancellor might simply make an order under subsection (4) repealing subsection (6), and then subsequently make an order transferring the jurisdiction. The Lord Chancellor has assured me and the Committee in the clearest possible terms that that cannot be done. I assume the reason is that it would be regarded as doing by a side wind what the statute did not wish to be done, and therefore it might be struck down by the courts. That is significant because the exception in fact now proves the rule. But for subsection (6) the Lord Chancellor could make an order doing that. It is only because specific provision is made in the clause preventing it that we have any safeguard at all under subsection (4).

Therefore, I think we should consider whether or not to strike out jurisdiction altogether from subsection (4), thus making subsection (6) unnecessary; or, in the alternative, bear in mind that the measure is couched in far too wide terms and that therefore by the Report stage one needs to have a series of amendments dealing not only with jurisdiction in relation to judicial review but also tying the Lord Chancellor's hands in respect of the powers he seeks under subsection (4). That is why I think it is important, when we discuss matters such as an annual report to Parliament, that it be put in the Bill so that it must be provided.

The clause represents a surrender of parliamentary control over matters which should be the subject of primary legislation. I have already indicated, not only in relation to this Bill but to others at other times, the way in which I deplore the tendency for more statutes to consist of a series of enabling powers under which the details are spelt out by statutory instrument. In this case I would suggest to the Committee that it is not just the detail; there are matters of considerable substance left unresolved, as the debate this afternoon has shown.

With the Executive dominating the other place, a process now known, thanks to my noble and learned friend the Lord Chancellor, as elective dictatorship, an independent judiciary and legal profession are the only defence of our rather frail constitutional rights. I firmly believe that the duties and responsibilities of the higher judiciary in respect of the administration of justice and of the courts should not be whittled away by any Act of Parliament of this kind.

If these provisions are welcomed it is on the assumption that their main purpose is to implement the recommendations of the Civil Justice Review. Everyone says that that is a wholly desirable purpose. However, I suggest, with due respect to my noble and learned friend the Lord Chancellor, that that is in some respects a false prospectus.

In the debate on the Second Reading the Lord Chancellor defined the aim of the legislation as seeking: to ensure that in future all civil cases can be dealt with at an appropriate level. In particular the Bill will enable general cases to be redistributed between the High Court and county courts according to their substance, importance and complexity". —[Official Report, 19/12/89; col. 124.] That may be my noble and learned friend's aim but I cannot see it adequately reflected in Clause 1. Clause 1 provides no clear indication of how the Lord Chancellor's aim is to be fulfilled, what will happen in any particular circumstance or what in general will be the nature of the orders that he makes. All we know is that in one case judicial review will not be effective.

So Clause 1 is just a framework enabling in effect the Lord Chancellor to do much as he likes. I should of course say the Lord Chancellor of the day whoever he may be since there is no time limit on the exercise of the powers under Clause 1.

I do not believe that consultations with the Lord Chief Justice and senior judges are a sufficient safeguard against the abuse of power by an Executive which increasingly dominates Parliament. I believe that there must be consent, and that must be written into the Bill.

I do not believe that Clause 1 as it now stands adequately reflects clear plans for the implementation of the Civil Justice Review. In that connection I refer the Committee to the statement on the Civil Justice Review made by my noble and learned friend the Lord Chancellor on 6th April last year (cols. 1293 to 1295 of Hansard refer). In a Written Answer to my noble friend Lord Colwyn he set out at some length the Government's intention: by means of primary legislation, to reserve the High Court for public law and other specialist cases, and for general cases of unusual importance, substance or complexity". To that end: The upper financial limit of county court jurisdiction will be removed. Entry to the High Court and eligibility for High Court trial will be regulated. The criteria for allocation of cases will include financial limits applied to particular classes of business". Changes were also to be made with regard to personal injury cases, debt cases, housing possession cases, small claims jurisdiction and so on. Nothing was said about defamation cases. County courts would be given new powers to speed up trials, to split trials and to regulate proceedings.

I believe that matters of that significance to the public ought in any event to be in a separate Bill. But if we are to have that separate Bill tacked on to the Courts and Legal Services Bill then I do not believe that there is any reason, even for administrative convenience, in the present state of our county courts about which we have heard that would justify giving the Lord Chancellor the enabling powers sought in Clause 1 as at present drafted. The noble and learned Lord himself has said that the implementation of the programme involved in the Civil Justice Review will take up to five years.

My noble and learned friend Lord Hailsham, while welcoming the objectives of Part I of the Bill, nevertheless on Second Reading (at cols. 151 to 152 of Hansard of 19th December) expressed the view that: if it were put into operation tomorrow the result would be a total shambles". Moreover, he expressed the belief that: it should have taken a form in which primary legislation played a greater part". That is a view which I strongly support.

I believe that the citizen has a vital interest in the administration of justice. It is not enough to say that legislation has a reforming objective and then leave it to the Executive—that is, mostly to officials—to settle the details and somehow make it work.

Again in the course of the Second Reading debate (col. 131) the noble Lord, Lord Mishcon, said: it is so easy for legislators to walk happily away from Parliament saying, 'We have now reformed matters. We have now done great things' ", leaving someone else to carry out the enactment. He was speaking in the context of the present critical personnel and financial position of the county courts. However, I should say that his comment stands as a general declaration of principle. At one point this afternoon he indicated that in certain circumstances there might be no point in passing Part I of the Bill. Just because a Bill is called a reforming measure does not mean that it is a good Bill.

Nor do I believe that with legislation of this constitutional significance it is enough to say that we have a high regard for the present Lord Chancellor. I entirely agree with the comment made by the noble Earl, Lord Russell. The business of Parliament is to be distrustful. The purpose of legislation is not to give powers to enable good Ministers to do what they think is right; it should be drafted in a way that ensures that bad Ministers cannot act arbitrarily. We all know that for practical purposes in regard to many of these matters Ministers tend to come and go—if not in or out of government, at least sideways —with such frequency that in practice "Minister" means "appropriate civil servant".

In winding up the Second Reading debate, my noble and learned friend the Lord Chancellor said: I can certainly assure your Lordships that I shall do my best to produce a system which will be effective and beneficial for those who succeed us for however long that system may last". —[Official Report, 19/12/89; col. 247.] I am sure that that is so, but I do not believe that personal trust in a particular Lord Chancellor is a sufficient reason for passing an enabling Bill which is intended to last for any length of time. I strongly believe that the form as well as the content of legislation needs closer attention.

Perhaps I may conclude by once again using words much better than my own. I am sure that my noble and learned friend Lord Hailsham was absolutely right when he said on Second Reading that: almost every principle of the methodology which law reform ought to attract or which ought to be followed in law reform has been disregarded by the Government in relation to the Bill".—[Official Report, 19/12/89; col. 151.] That is why I oppose the proposal that Clause 1 should stand part of the Bill.

Lord Simon of Glaisdale

Noble Lords have just heard a powerful speech made by a noble Lord of great legislative, parliamentary and ministerial experience and will want to give due weight to it. I have no quarrel with the thrust and intention of Clause 1. However, I wish to draw attention to a point implicit in the speech of the noble Lord, Lord Rippon. The clause starts, as so many do, with the words: The Lord Chancellor may by order make provision". That is symptomatic of the highly authoritarian spirit which animates the Bill and so much of the Government's activity.

I do not quarrel with the purpose and intention of Clause 1; but I want to question one or two aspects of its drafting. The first arises from subsection (6). Why has that not been conflated with the similar provision as to mandamus, prohibition and certiorari in Clause 3(3)? There may be a good answer, but at first sight it seems that a great deal of space, time and effort might have been avoided by conflating those two provisions.

Subsections (2) and (3) are far more important. Simultaneously last Session we had the sudden recrudescence in three Bills of the Henry VIII clause, which even with a second bureaucratic surge after the 1939–45 war had not been seen since the Donoughmore Report. Simultaneously we had this piece of drafting nonsense.

Subsection (2) gives in permissive and not mandatory form a general power. Subsection (3), again in permissive and not in mandatory form, gives particulars of the generality. Of course anything that is done under subsection (3) could be done perfectly well under subsection (2) without wasting some 10 lines of the statute book. My noble friend Lord Henderson of Brompton twitted me with wanting to add to the statute book by providing that when an Act of Parliament is amended or repealed it should be done by Parliament itself and not by the Minister arrogating to himself legislating powers. However, I should point out that concomitant with that I would omit those lines of subsection (3) and the whole of subsection (4).

But what is done in this Bill in subsections (3) and (4) goes considerably further and is more absurd than what was done in the last Session. Perhaps the Committee would look at Clause 82. Clause 82(1) gives a power to make orders. Clause 82(2) states that: Any such regulations or order may make different provision for different … classes of case". I should have thought that that was unnecessary. But it is a formula much beloved of the draftsman and now it probably comes out automatically from a computer. In those circumstances, I am bound to ask what subsection (2) adds to Clause 82(2). I hope that my noble and learned friend will specifically answer that question. If subsection (2) of Clause 1 did not exist, could he not do anything that that empowers him to do under Clause 82(2)?

But one goes further. I should be grateful if he could say whether anything he may do under subsection (3) could not be done under subsection (2). If the answer to those questions is yes, as I think it must be, it means that one is merely cluttering up the statute book with a prolixity of verbosity contrary to what was recommended by the Renton Committee. That is the second point that I wanted to make.

My third point concerns subsection (4). Somehow my noble and learned friend has convinced himself that there is no power to make an order under subsection (4). He asserted three times that it is only under subsection (1). So presumably he has convinced himself that it is only under subsection (1) that an order can be made. My noble and learned friend may have convinced himself but he has not convinced me. That means that either he or I must be in a state which theologians call invincible ignorance. If no order can be made under subsection (4) why does it begin, "An order under this section may"? If there is a provision to amend or repeal a statutory provision, is that made under subsection (4) or under subsection (1)? I simply cannot follow my noble and learned friend's argument. It seems to me that that is clearly yet another example of a Henry VIII clause.

I ask one other question. For dozens of years there has been profound dissatisfaction about the state of our statute book. That led in 1975 to the setting up of the Renton Committee on Preparation of Legislation. Matters have not improved since then. That is partly due to the reason mentioned by the noble Lord, Lord Rippon, earlier —that the legislation committee seems to have abdicated its responsibilities. I fear that it is also because parliamentary counsel are under nobody's control. Formerly they came under the Treasury. Now they come under the Prime Minister who of course has many other things to do than to supervise the drafting of every Bill.

A short time ago Sir Robert Andrew was appointed by the Government to make recommendations about the Government Legal Service. He recommended that parliamentary counsel should come under the law officers. That recommendation was rejected, no doubt much to the satisfaction of parliamentary counsel. However, I was assured by the noble Lord the Lord Privy Seal at the time that that was unnecessary because every Bill was read by the law officers.

I believe that I am therefore entitled to ask: were subsections (2), (3) and (4) drawn to the attention of the law officers? I do not for a moment ask what advice they gave because I have always held strongly that what law officers advise should be confidential, although the Ministry appeared to take a rather more relaxed view at the time of the Westland issue. However, I am entitled to ask whether those and similar provisions were drawn to the attention of the law officers.

It seems to me that the drafting of the clause is so unsatisfactory that it would be better to take it away again and redraft it.

9.30 p.m.

Baroness Seear

If the two greatest legal minds in the country at the present time disagree about the meaning of this legislation, what hope is there for ordinary mortals such as the rest of us to understand what is going on? Is that not a strong argument for at least having another look at the wording of the clause?

Lord Rawlinson of Ewell

If I may say so with respect, the noble Baroness has spoken with great common sense. The argument has been demonstrated before us. We have a former President of the Probate and Admiralty Division, a former Conservative Solicitor-General, and a Treasury Minister saying one thing, and we have a very powerful speech by my noble friend Lord Rippon on the generality of the matter.

As legislators we are presented with a difficult position. When one has sat on the same Benches all one's life on the side of a government it is difficult when one is trying to reverse what is being proposed by a noble and learned friend. I hope that that is understood. However, we are trying to point out the fact that this is a matter of principle; it is giving to the Executive powers which we do not believe it should have.

Members on these Benches have always stood for ensuring that the powers of Ministers are limited and that they are expressly given by Parliament. When there is doubt about them, as the noble Baroness, Lady Seear, said, they should be taken away and looked at again. They should be put before this House with certainty because, if there is uncertainty when they are before this House, what will happen when they go elsewhere?

The Bill looks as though it has been concocted. For reasons to which we shall come later the second part has been determined, rightly or wrongly. However, it appears that Part I has been drafted without being properly and seriously considered and thought through. The issue is of the greatest importance. It is easy to say, "They are a lot of laywers making lawyers' points. They are a lot of judges who, because they are judges, are making their speeches. They are a lot of banisters and ex-barristers looking at their own interests". It is easy to say that, but we are dealing with one of the most important constitutional Bills of our time and it should be made absolutely clear.

We must try to avoid the personal aspects in the argument: we must look at it purely as a matter for the Executive. With his great persuasiveness, my noble and learned friend the Lord Chancellor will explain that he is taking powers which are perfectly reasonable and sensible. Others do not appear to agree. Members on these Benches were brought up to believe that we had to make perfectly clear the powers of a Minister and always wished to do so. Powers should be given only when Parliament has fully understood and accepted them and they should be limited by the exact words of statute. None of us on these Benches likes the idea of secondary legislation. We want to be able to give to Ministers their powers and say, "This is what your have been given so now go and do it and do not go a step beyond it".

The noble Baroness, Lady Seear, has expressed the position extremely well. What hope have ordinary Members, let alone members of the legislature, of understanding, accepting and believing in the Bill if we have the present confusion and conflict? After the powerful speeches that have been made in criticism of Clause 1, I ask my noble and learned friend —who is taking these powers in his personal capacity only because he holds his great office at the present time —to look at the matter most seriously and understand the concern which has been expressed today.

Earl Russell

Like the noble and learned Lord, Lord Simon of Glaisdale, I have no objection in principle to the objectives of the clause. I believe that making litigation cheaper is a laudable objective provided that that can be made compatible with the interests of justice. One must also concede that there must be a place for enabling legislation. The bulk of legislation and the bulk of the things which governments wish to do is now so great that without enabling legislation this Chamber would very often have to sit beyond midnight, when issues may not receive adequate scrutiny.

Nevertheless, having said that there is a place for enabling legislation, we should ensure that it is restricted. In each case the burden of proof should rest on those who wish to take enabling powers and that burden of proof should be heavy. In particular, I believe that the argument should be taken in this House. In another place, if the Members do not like enabling powers or if they do not like a statutory instrument, they may perfectly properly vote it down and reject it. For good reasons, we in this House exercise great restraint in doing that. Accordingly, the House must be particularly concerned with the powers of revision and scrutiny. It must be particularly concerned with the detail and with the viability of proposals put before it.

When measures are put forward in an enabling form, it is, to put it no stronger, a great deal more difficult for the House to give them the scrutiny they deserve. The noble Lord, Lord Rippon of Hexham, said that enabling powers were being used more and more frequently. I cannot but agree with that. I recall the comments of the noble Lord, Lord Hylton, and of my noble friend Lady Seear on the Northern Ireland education reform order. That was a very large measure indeed and one to whose revision this House could, as it showed in discussion, have made a very useful contribution. It was denied the opportunity to do so. The measure was an order and it could not be amended.

As I have said, there is a proper place, but that proper place should be defined in a way which enables us to decide whether it has been properly delineated. I look at subsection (2) and I find that orders may be made by reference to such criteria as the Lord Chancellor sees fit to specify in the order. I shall not know what those criteria may have been and, until I know, I cannot reach a decision on whether I believe that the powers are proper ones for this House to allow. The phrase evades the scrutiny of this House and I believe that that is a matter for regret as regards the dignity of the House.

I have great sympathy with what the noble Lord, Lord Rippon of Hexham, said about Henry VIII clauses. Nevertheless, in fairness, I must concede that there is a place for Henry VIII clauses. King Henry VIII himself—and I do not swear to my recollection but I believe that this is correct —first used the power in an order for varying the price of wine. In that context, where inflation, deflation or a change in economic circumstances may demand variation, there is a proper place for using such a clause. I do not believe that it is always improper. However, I believe that it is usually improper and I think about that, as I think about enabling powers, that it must carry with it a very heavy burden of proof.

In that context, I look at subsection (4) and ask myself whether there is a sufficient delineation of the circumstances in which the Henry VIII clause may be invoked. Are we told in precisely what circumstances the Crown may vary legislation? I find that subsection (4) states: An order under this section may amend or repeal any provision made by or under any enactment relating to the jurisdiction, practice or procedure of the Surpeme Court". I cannot help thinking that that is a great deal too wide. When I think about it, I do not know what it will mean. I cannot decide, without knowing what it is to mean, whether I am for it or against it. If I cannot decide whether I am for it or against it, the only proper parliamentary response is to say that, until I am sure, I am against it.

9.45 p.m.

Lord Renton

I rise merely to point out that my noble and learned friend the Lord Chancellor very wisely, but after much persuasion, said on several of the amendments to Clause 1 that he was prepared to consider the arguments made. I merely wish to ask him, particularly when considering Clause 1 in the light of our debates, to bear in mind the very powerful speech made by the noble Lord, Lord Rippon of Hexham.

Lord Mishcon

I wonder whether I would be deemed impertinent if I asked the Committee to view some of the speeches that have been made on clause stand part with a degree of common sense. I believe that that plea was made by the noble Baroness, Lady Seear, when she referred to hearing two eminent lawyers differ as to whether Part I was a perfectly sensible and proper arrangement for subordinate legislation and another very learned Lord speak in terms which suggested that there were many faults in the drafting and that this was not a subject for subordinate legislation in the way it had been dealt with in this Bill.

My plea for common sense is based upon this supposition. The noble and learned Lord the Lord Chancellor has to put into effect certain administrative acts in order to carry out the recommendations of the Civil Justice Review. Those recommendations in the main are for the transfer of certain jurisdictions from the High Court to the county court. He may decide that it would lead to economy and expedition if one day something was transferred from the county court to the High Court. He is in no position, and admits it, to reduce the present jurisdiction of the High Court. He has said so and this is clear from the Bill.

My point on this clause was a very different one when I found I had to vote against the noble and learned Lord the Lord Chancellor on something to which I shall quickly refer in a moment. Are we to imagine that we as legislators should have in Part I a full scheme —which in any event obviously is turning over in the mind of the noble and learned Lord the Lord Chancellor at the moment —where items are set down in a Bill, where powers, jurisdiction, procedure and so on are dealt with and cut into tablets of stone unless there is amending legislation for the transfer of work from the High Court to the county court? If we imagine that we are misusing, in my respectful view, the whole purpose of primary legislation, enabling legislation and subordinate legislation. Quite obviously within the limits of not being able to take away jurisdiction from the High Court the obvious way of dealing with the detail of this matter must be by way of an administrative order which comes before Parliament.

I do not in any way detract from the noble speech of the noble Lord, Lord Rippon. I call it a noble speech because he was speaking in general terms about the way in which Parliament ought to limit the rather expansive way in which subordinate legislation is coming before us. On that general principle I stand behind him from these Benches. However, when one is dealing quite literally with what jurisdiction and procedures one intends to transfer for administrative convenience, can one really envisage this being put into an Act of Parliament so that every time one wants to alter or add to it one presumably either does it by order —in which case why can it not be done by order from the start—or there has to be amending legislation? I finish on this note. My quarrel, if I can call it that, with the noble and learned Lord was that subsection (4) was frightening. The Lord Chancellor can make an order which revokes any enactment that deals with jurisdiction or anything similar to that, whether it is concerned with practice or procedure. That looked very frightening until the noble and learned Lord said that in his view he could only do that within the purview of subsection (1). That means only for the purposes of transferring the jurisdiction, for example, to the county court. He said that it is only for that purpose that he can do away with an enactment either by repeal or amendment.

I then made a plea to the noble and learned Lord and said in so many words that it may be as a result of my lack of intelligence or power of interpretation of statutes that this provision is not clear to me and to others who have participated in the debate. This power is so limited. I asked the noble and learned Lord whether he would take away the measure and look at it again with a view to clarifying the limitations of subsection (4). He said that he would without agreeing with anything that I had said. Nevertheless, he undertook to do this.

With that undertaking, is it seriously suggested by those who have contributed a view to the Committee that Clause 1 should not stand part of the Bill? If one is to stop subordinate legislation from carrying out the purposes of Clause 1, is it seriously suggested that the detail of the transfers should be incorporated in a Bill which will become an Act? I repeat that the Act can only be amended —and because we want it to be flexible we know that it will be amended from time to time—either by the subordinate legislation to which the objectors to Clause 1 seem to pin their faith or by amending legislation which would waste the time of Parliament and take a long time to carry through, thus ruining its flexibility. That is the reason why I thought it was proper to ask the Committee at this stage where this kind of argument was leading and whether the whole argument was necessary if subsection (4) is looked at again.

Lord Hailsham of Saint Marylebone

At Second Reading of the Bill I made two observations which are relevant to the present discussion. This Bill contains about 120 pages and 13 schedules. There are two quite separate purposes behind the Bill. One is to give effect to the Civil Justice Review in so far as it pertains to the county court and the High Court jurisdiction, practice and procedure. The other is to alter radically the constitutional structure of the legal profession.

Perhaps I have said too much in the past about these matters, but I repeat now the two criticisms which I made and which have been illustrated by what has been said as regards Clause 1 standing part of the Bill. Part I of the Bill —I am not now speaking only of Clause 1 —ought to have been a Bill in its own right. If it had been a Bill in its own right, we would not be in this muddle. If it had been a Bill in its own right, there would not have been so much confused draftsmanship and so much need for secondary legislation.

Lord Henderson of Brompton

Perhaps I may say a few words following the speech of the noble and learned Lord, Lord Hailsham, and that of the noble Lord on the Opposition Front Bench, who I thought brought this discussion into perspective. If the noble and learned Lord the Lord Chancellor had gone to his colleagues in the Government and said that he wanted time to implement the Civil Justice Review and that he required a separate Bill, he would probably have been turned down and given time for the implementation of the Civil Justice Review only if it were made, as it has now been made, Part I of the Bill. I should have thought that it is a matter of commendation for the noble and learned Lord that he has persuaded his colleagues that this important matter should be put at the forefront of the Bill.

Had he not managed to do so, I fear that the Civil Justice Review would never have been implemented. It is very much to his credit that he has been able to do this. Nobody has so far given him credit. I very much wish to do that. It may be that he will not be able for some time to implement it in the way that noble Lords would wish because he may not be able to get enough money for it. But when and if he can get enough money he will be able to implement it. It is a crying shame that he should be attacked in this way.

Secondly, if we follow the advice of the noble Lord, Lord Rippon, this will not be described as an abdication of parliamentary procedure. If it is introduced as a separate piece of legislation and all other matters are introduced as separate pieces of legislation it will be described as an inundation of Parliament. We are already the most highly occupied Parliament in the world in respect of legislation. No other legislature spends so much time on legislation. Yet here is the noble Lord, Lord Rippon, asking us to double that amount of time. It is absolutely crazy in modern times.

We must get the balance right, but [if we go along the lines suggested by the noble Lord we shall be working for 365 days a year, morning, noon and night. That is not the way forward. To return in the last decade of the century to Lord Hewart and the Donoughmore Committee is backward looking and futile. We must pay regard to the balance between primary and secondary legislation but I regard the present balance which the Lord Chancellor is putting forward as just about right. I do not believe that enough credit is given to the scrutiny given by Parliament to delegated legislaton or the opportunities there are for objection when delegated legislation is brought forward.

Henry VIII did not have the advantage of subsection (6). Indeed if he had been given that advantage he would have chopped the head off whoever happened to propose that subsection (6) should limit his powers. Of course he did not. The important subsection compelling the Lord Chancellor to consult means that he will not act without due consideration of the views of those who matter most among the judiciary.

If we do not allow this kind of balanced legislation to be put forward by the noble and learned Lord the Lord Chancellor or by governments in the future we shall be bogged down with primary legislation. That cannot be a good thing for the country. The way forward proposed by the noble and learned Lord is the right one. It was said by the noble Lord, Lord Rippon, and I have heard it said many times, that while one has personal trust in a Minister —in this case the noble and learned Lord the Lord Chancellor—one does not know what kind of ogre will succeed him. However, we must have regard to the immense apparatus in this country for criticism of the government. One must have regard to the continuity of government as represented by the Civil Service, much maligned though it is.

It is not easy for one succeeding Lord Chancellor to undo the work of a previous Lord Chancellor which has had not only the approval of Parliament but also the agreement of the country and of the judiciary. Therefore I would ask noble Lords not to pay too much regard to what is to my mind something of an antiquated and ossified protest about a Henry VIII clause. Henry VIII did not have any of the vast apparatus of the restraining factors which inhibit the actions of modern government. I think that the balance is just about right in the Bill and I commend the noble and learned Lord for having brought it forward.

10 p.m.

Lord Ackner

Fellow feeling makes us wondrous wise and having arrived in my room at 8 o'clock this morning and sat in the Appellate Committee, I am now conscious of what the junior hospital doctor must go through every day. I say that by way of an anticipatory apology because I do not think that I follow the constant references to the fact that there can be no reduction of the High Court jurisdiction under this Act. If one looks at page 2, paragraph (e) states that the Lord Chancellor may by order specify, proceedings which may be commenced only in a county court". Then under paragraph (g) it says that he may specify, proceedings which may be taken only in a county court". I should have thought that means that he can say hereafter that all actions for personal injuries shall take place only in the county court and that all actions for tort and for breach of contract can take place only in the county court. I should have understood that as reducing the jurisdiction of the High Court because you cannot then go to the High Court for such actions. However, if I am wrong I pray in aid the defence of the hospital doctor.

The second point I wish to make is this. Congratulations have been offered to my noble and learned friend for managing to get Part I of the Bill through at this stage. I do not join in those congratulations because I think that this is all part of the unseemly haste to which reference has been made. It has gone through in a rush and that is why there have been complaints about the drafting. Further, it has not taken the form of primary legislation because that takes a great deal longer and requires a great deal more thought. The situation leaves the Executive with the option to fill it in just as they wish without parliamentary scrutiny.

The Bill has been rushed in for the simple reason that the "Legal Services" referred to in Part II cannot be justified by the noble and learned Lord the Lord Chancellor as saving any cost or adding any expedition. That is so because he has, on the one hand, the Royal Commission saying, "What you propose to do will involve more cost and less access"; and, on the other hand, as we know from the constant inquiries made by my noble and learned friend Lord Oliver, no form of research or study has been carried out to evaluate the consequences of Part II. Therefore, Part I has been put in as the only keynote upon which the noble and learned Lord can say, "Look how committed we are to assisting the public".

We were told not to refer to legal aid because it is not included in the Act. However, my noble friend Lord Irvine very understandably said, "I will refer to it because it pours doubt on the Government's commitment to improve access". In the same way, he referred to the county court situation. He said that it made the phrase which appears in the Official Report of 19th December 1989 at col. 122: Our keynote is to improve access to justice for all who need it tantamount to humbug. That is not judicial language and of course I do not adopt it. However, congratulations for producing a Bill which ought to be free standing should not be offered in the context of this case where, as my noble and learned friend Lord Simon said, we are floating Part II on its back so as to at least point to something to justify the prospect of assisting the Government in making out their keynote phrase, "We are concerned to improve justice".

Earl Russell

The noble Lords, Lord Mishcon and Lord Henderson of Brompton, made some powerful points which compel attention. However, I should like to be allowed —if I may adopt legal language —to confess and avoid some of those points. I am well aware of the threat of an overwhelming flood of primary legislation. I know that the noble Lord, Lord Rippon of Hexham, is also aware of that threat. One of the parliamentary moments I shall not soon forget is when he dropped the Water Bill. If I had been a security man I should have been in danger of a heart attack at that moment. I do not wish to argue —I do not imagine that the noble Lord, Lord Rippon, wishes to argue —that everything should be embodied in primary legislation. The noble Lord, Lord Mishcon, might perhaps consider the possibility that there is some undistributed middle between his argument and that of the noble Lord, Lord Rippon.

It is not being suggested that everything should be put into primary legislation. It is being suggested that the general principles should perhaps be spelt out in rather more detail than they have been spelt out in the Bill. I take the point made by the noble Lord, Lord Mishcon, about subsection (4). It was a point well made, which I hope may receive some attention; but at the very lowest level, I should like to ask whether the wording of subsection (2) could also be included in any reconsideration which might be given to the clause.

Lord Boardman

We have been debating whether Clause 1 should stand part of the Bill. If Clause 1 does not stand part of the Bill, then Part I falls. It is common ground in all parts of the House that the objective of Part I is to deal with clogging up of litigation through the courts and the delays and problems that are caused. For the past seven hours or so we have been debating what Clause 1 does and the problems that it creates. In that time, a number of assurances have been given by my noble and learned friend that the points raised have been much in his mind although he has not given an undertaking about what he will do. It is therefore now appropriate for us to decide that Clause 1 should remain part of the Bill. We shall have the opportunity to return to those points at a later stage.

The Lord Chancellor

It might be appropriate for me to comment before the Question whether Clause 1 shall stand part of the Bill is put to the Committee. I do not propose to go over everything that has been said. However, as I understood what my noble and learned friend Lord Hailsham said in his speech on Second Reading, when he criticised parts of the Bill as ignoring every principle of law reform, he expressly excepted from that criticism Part I, and we are now dealing with Part I. I do not necessarily agree with all he said about the other parts of the Bill; but that criticism was not applied to Part I for the good reason that Part I proceeds on the report of the Civil Justice Review which is outside government.

I invite the Committee to make it clear by amendment, if the Committee wishes, what principles should be adopted. The central principle that I have adopted is that judicial review should remain the exclusive province of the High Court. I believe that to be the fundamental safeguard for powers such as this. That means that any order that I or any successor of mine makes under the clause will be subject to that judicial review. One of the principles upon which judicial review operates is that the purpose for which Parliament gave the powers is fundamental to a proper use of them.

I thought I had dealt with subsection (4) and made it quite clear that I would try to make it even plainer than it is. I am sorry that I have not convinced my noble and learned friend. Perhaps the best way to resolve the problem is to alter the wording to make it clearer. I shall certainly try to examine it.

I shall look at subsection (2), but its purpose is to make it clear that different types of proceedings may be treated differently and to introduce the criteria. I have tried to specify and to give as much notice as possible of what I have in mind as criteria. These are the criteria that occur to me at the moment. I do not rule out the possibility that with refinement and consultation other criteria might emerge. However I am being as straightforward as I can in indicating the nature of the criteria that have so far occurred to me. Apart from the question of the interests and wishes of the parties, no one has suggested any improvement on these.

The purpose of the clause is to enable us, within the constitutional safeguard that the judicial review is restricted to the High Court, to make flexible arrangements as between the two courts about what should be done. As I said earlier, I intend that the allocation will be on the basis recommended by the Civil Justice Review. However, difficult questions are involved in that; for example, specifying degrees of complexity and so on. I think it is quite possible that experience of working a distinction of that kind might show up difficulties in its formulation. We want to be able to improve that as time goes on. Therefore it is abundantly practical to do it in this way. As I have said, the constitutional safeguards are included.

I wish to say one more word about subsection (4). The noble Earl, Lord Russell, also started reading it but it is important to read the end of subsection (4)(a): In consequence of any provision made by the order". That is a provision of the type mentioned in Clause 1(1)(a) to (g). I envisage that the cases would be dealt with and allocated according to the suggestions made by the Civil Justice Review. Members of the Committee know what that is so I shall not take up time by specifying.

Regarding the courts themselves, to some extent I have dealt with them and I wish to put on record some further facts about them. If we base ourselves on the figures suggested by the Civil Justice Review —that is, an upper limit of 50,000 cases for a county court and a lower limit of 25,000 for general cases in the High Court—the number of additional trials that would move to the county courts from the High Court would be around 1,500. The total number of full trials in the county courts is about 10,000 in any one year at present. The additional burden in the county courts over and above those now being dealt with and the cases being sent down is not a very high proportion of the cases being dealt with at present.

This low number of additional cases is because many are already being transferred down. A number of circuit judges are currently sitting as deputy High Court judges, hearing cases in the High Court of the kind that would be transferred to the county court under the new arrangements.

Much has been said about present difficulties in the courts and it has been suggested that these are of recent origin. I do not propose to deal with every detailed point that has been made but there are one or two facts which I should like to mention.

At the beginning of 1987 the average waiting time for all cases in the Crown Courts was just over 13.5 weeks. By autumn 1989 it had fallen to 11.5 weeks. The number of outstanding cases has been reduced significantly and the average waiting time for custody cases in London is currently lower than at any time during the past eight years.

Turning to the county courts, at the end of 1987 only about 55 per cent. of the main office work —for example, the originating process and the production of orders of the court —was dealt with within five working days of receipt. That figure rose to around 80 per cent. in the first quarter of the present financial year. In the past year the system has been under pressure, with some courts experiencing particular difficulties. One factor has been a larger than usual increase in workload. Following a number of years when the increase was around 3 per cent. —even less in 1988 —the increase so far this year is over twice the usual level. There are about 270 courts, which deal annually with over 2 million summonses, 1.3 million warrants and 180,000 divorce petitions, so that increases of the magnitude I have mentioned have a considerable impact.

I have already mentioned the action I am taking to reduce the burden of routine administrative work on the court staff, and I do not think I need repeat that. My belief is that, considering the volume of work with which the county courts deal, the number of complaints which are made —which is not something about which I am in any way complacent —has to be seen in perspective.

In my submission, these powers are correctly circumscribed. I have given as much indication as I possibly can of the criteria which will be used. My intention is that these be the criteria, but I do not think it would be wise to rule out others. Accordingly, I hope that the Committee will feel that it is right that Clause 1 shall stand part of the Bill.

So far as congratulations are concerned, my noble and learned friend Lord Ackner has made some submissions, and I am content to leave that to your Lordships.

10.15 p.m.

Lord Rippon of Hexham

I hope the Committee will feel it has been right to have a general debate on the scope of Clause 1. I am grateful to those Members who have given some support to the anxieties that I have expressed. I am also grateful to the noble and learned Lord the Lord Chancellor for indicating that he is prepared to look seriously at the drafting of some of the clauses.

If I may say so with respect, I have found merit in all the speeches to which I have listened, with the possible exception of that of the noble Lord, Lord Henderson. I did not feel that what he had to say was relevant to the argument that we had been trying to present. I believe not only that there has been a deterioration in the quality of legislation but that there has been too great an increase in the quantity of legislation. The fact that one asks for legislation to be well drafted does not imply that one wants more of it. My view is that we should not have had 50 Acts of Parliament affecting local government in the last 10 years had some of them been properly drafted in the first place. That is another consideration entirely.

I also agree with the observations of the noble Earl, Lord Russell. I do not say that there should be no subordinate legislation. I would not go further than the Donoughmore Committee, which, although subsequently there were no examples of Henry VIII clauses, did say in those ossified days to which reference has been made that the Henry VIII clause should, as I have indicated, be abandoned in all but the most exceptional cases and should not be permitted by Parliament except upon special grounds stated in the ministerial memorandum of the Bill. I wish that that could become policy.

I am grateful, as I have often been in the past, to the noble Lord, Lord Mishcon, for agreeing with me in general, through of course not in particular. He may tomorrow read the speech made tonight by the leader of the Liberal Party, Mr. Paddy Ashdown, in Chesterfield, expressing the view that Labour's new charter of rights was like the emperor's new clothes: it is all bluster and no substance. I hope he will not think I am cynical when I say that I see some substance in the Liberal leader's view that Labour still wants to enjoy the same unchecked degree of central power that has been used and abused by the present government. They still have some hopes on the Benches opposite that they may be able to exercise those untramelled powers themselves.

Lord Mishcon

The noble Lord is always amusing, even at this time of night when it is much appreciated. May I say in all frankness that part of my speech was due to the caution born of the realisation that these Benches may be in a rather more responsible position in a few years' time? I shall then welcome the criticism of the noble Lord on the subordinate legislation that is put forward.

Lord Rippon of Hexham

The noble Lord may well be the Lord Chancellor; we may have a solicitor as Lord Chancellor, or even, one day, a major-general. All I would say is that I believe some aspects of Clause 1 give substance to the idea that the question of constitutional reform is now rising to the top of the political agenda. I only hope that this Chamber will show that it still has the will to safeguard the essential rights of the people of this country and prevent the abuse of power by the Executive. Having said that, and having received assurances from my noble and learned friend the Lord Chancellor that he will look at the way in which Clause 1 is presently drafted, I shall not seek to go further tonight.

Clause 1 agreed to.

Clause 2 [Transfer of proceedings between courts]:

Lord Renton moved Amendment No. 16: Page 3, line 4, leave out ("by any procedure provision").

The noble Lord said: My Lords, we have reached a fairly late hour and this has been a day and evening of heavy grind. I wonder whether before I move Amendment No. 16 I could have an indication from the Government as to what their intentions are with regard to further sitting this evening. I should he very happy to move instead of my amendment the Motion that the House do now resume.

Viscount Davidson

It has been agreed through the usual channels that we should continue at least until 10.45 p.m., so my noble friend can carry on.

Lord Simon of Glaisdale

I do not know what the usual channels are in this connection. I was assured that the Committee would adjourn between 10.30 and 10.45 and not that we should sit at least until 10.45.

Viscount Davidson

It is rather difficult tonight. The usual channels are not working very well. There are too many channels. It may be convenient to the Committee if I say that we should adjourn not later than 10.46.

Lord Renton

Therefore I shall speak to Amendment No. 16 and, as suggested in the groupings, also to Amendments Nos. 24 and 28.

I am drawing attention to what I find a very difficult and rather unusual piece of drafting. We find at the top of page 3 that Section 40 of the County Courts Act is to be rewritten as proposed. The new subsection (1) of Section 40 reads: Where the High Court is satisfied that any proceedings before it are required by any procedure provision"— and I have moved the amendment to leave out the words "procedure provision" in order to find a peg on which to hang the matter— to be in a county court it shall —

  1. (a) order the transfer of the proceedings to a county court; or
  2. (b) order that they be struck out".
In considering this, the High Court will have to consider what is a procedure provision. It will have to turn to subsection (8) at the top of page 4. There we find that: In this section 'procedure provision' means any provision made" — believe it or not— under section 1 of the Courts and Legal Services Act 1990"— that is, Clause 1 which we have been discussing at some length nearly all day — or under any other enactment". Under Clause 1 we need to refer back, alas —and I do so with some reluctance because it has been referred to ad nauseam —to subsection (4) where we find reference to: any enactment relating to … the jurisdiction, practice or procedure of the Supreme Court". It may well be that a procedure provision, quite apart from the definition given at the top of page 4, is a term of art already in the statute law, but I have not been able to find that that is so.

I have looked at the Notes on Clauses which by courtesy of the Government have for some years been made available to us on complicated Bills of this kind. There is no indication there as to whether it is already a term of art in statute law or whether this is something new. I suspect that it must be something new because the draftsman found that it was necessary to refer back to Clause 1. Just the same point arises in the amendment of Section 42 of the 1984 Act which we find referred to in Clause 2(3). One sees in the middle of page 4 exactly the same words relating to transfer to the High Court by order of a county court. Again on page 5 in the new subsection (7) of Section 42 as rewritten we find the same definition of "procedure provision"; namely, that it means any provision made under Section 1 of this Act or any other enactment.

I hope that I may be forgiven for being a little bit puzzled by this, but when we enact matters which must be interpreted by the High Court we should not place Her Majesty's judges of the High Court in any state of doubt. They will have to refer to Clause 1 in order to interpret the powers of the High Court in the case of new Section 40 and the powers of the county court in the case of new Section 42 —and they are fairly full powers of transfer —in the light of the definition of "procedure provision" which they must find by reference to Clause 1.

Quite frankly, this is a rather difficult method of drafting. It is a kind of internal cross-reference. That is not entirely unusual but in this case it does not lead to clarity, at any rate as it seems to me. This is therefore a probing amendment, an effort to obtain clarification as to what my noble and learned friend the Lord Chancellor has in mind and to invite his attention to it just in case after he has considered the drafting he may be able to make the matter much clearer so that the judges of the High Court and the county courts respectively may be sure that they are exercising the powers given in the way that Parliament intended. I beg to move.

Lord Simon of Glaisdale

I was puzzled by a slightly different point from that which puzzled the noble Lord, Lord Renton; namely: 'procedure provision' means any provision made—

  1. (a) under section 1 … or
  2. (b) by or under any other enactment".
That is obviously nonsense. It cannot be right. I am not sure what my noble and learned friend has in mind. All I can do at this hour is to ask him to look at paragraph (b). Procedural provision cannot mean any provision under any Act. Whatever it does mean, it cannot mean that.

10.30 p.m.

The Lord Chancellor

Indeed, it is intended to mean exactly that. It is intended to make a little easier the wording of the new Section 40. With respect, if, instead of "procedure provision" one reads the definition of procedure provision into the section, one will find that it makes perfect sense.

The point is that if, by virtue of an enactment made by or under any statutory provision, the proceedings are to be in a county court, then the High Court has two possibilities: either it may transfer the case to the county court —in other words it may deal with the case by transferring it to the county court —or, if it wishes, it may strike the case out. That is all that it says. It seems to me to be simple.

One could do it in other ways, but the idea is by using the phrase "procedure provision" to produce a comprehensive phrase which shortens the statement of new Section 40(1) to make it apparent. The emphasis is on the power of the court when faced with a restriction of the proceedings to the county court. What does the High Court do? This is what it has been told to do.

With respect, it is quite simple. If my noble friend can suggest some better way of achieving the same result, I should be happy to consider it. Perhaps we could do that before Report stage.

Lord Renton

As my noble and learned friend said, and as is clear, "procedure provision" under the definition given in subsection (8) of the new Section 40 and subsection (7) of the new Section 42 refers to any statutory provisions. Surely there are procedure provisions which arise from time to time under the rules of court. Therefore it would mean that if there were a procedure provision which arises from a rule of court it would, by implication, presumably be excluded by the definition which limits the meaning only to statutory provisions and not any provisions made under rules of court.

The Lord Chancellor

The provision is "by or under any … enactment", and the powers to make rules of court are under the County Courts Act and the Supreme Court Act. So these rules are made under enactment also.

Lord Renton

That is very interesting and helpful. I am very grateful to my noble and learned friend. With that clarification, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Chairman of Committees

If Amendment No. 17 is agreed to, I may not call Amendment No. 18.

Lord Hacking moved Amendment No. 17: Page 3, line 7, leave out from ("court") to end of line 8.

The noble Lord said: In addressing the Committee on Amendment No. 17, I should also like to speak to Amendments Nos. 18 and 25 tabled in the name of the noble and learned Lord. I anticipate that this will probably be the last set of amendments that the Committee will consider this evening. If I give an undertaking to the Chamber that I shall end my peroration no later than 10.45 p.m., and if the noble and learned Lord responds to the request that I make to him on all three of these amendments —to take them away for further consideration —then the Committee should be able to rise by 11.46 p.m. —I mean 10.46 p.m. It is my intention to be helpful to the Committee and not to extend to it an hour of further business.

All these amendments address one issue in the proposed new Sections 40 and 42 of the County Courts Act 1984. Therefore the parallel of the amendments which I am presenting to the Committee lies in the power of the order to strike out under Clause 2 subsections (1) and (3) of the Bill.

The Committee will see that Clause 2 seeks to re-enact the provision currently in the County Courts Act under Section 40 concerning the transfer of proceedings to the county court. It then seeks to re-enact Section 42 of the County Courts Act in reference to the transfer of proceedings from the High Court to the county court.

Applying the same test —that the court is satisfied that the proceedings ought to have been brought in the other court —the High Court, under subsection 2, and the county court, under subsection (3), have two courses of action available to them. One is to give an order of transfer of the proceedings to the other court. The alternative is that the proceedings should be struck out. It is my submission to the Committee that the order for striking out, whether given in the High Court or county court, is an extremely draconian measure and should not be included in the Bill. It imposes very severe consequences on the parties—consequences of having to restart proceedings in the other court, and of delay and additional cost.

In his amendment to subsections (1) and (3) the noble and learned Lord adopts the form of the provision that is to be found in Section 34(2) of the County Courts Act. I think I am right in saying that there is no parallel existing legislation referring to the transfer from the High Court to the county court. Of course there are certain circumstances in which the High Court can strike out proceedings. But it does not exist currently, as I understand it, under the High Court's power to transfer proceedings from the High Court to the county court. I shall be corrected if I am wrong. To that extent the noble and learned Lord is seeking to introduce new legislation, albeit now putting it under the more cautionary terms of his amendment.

I seek to persuade the noble and learned Lord to consider all three of these amendments again. The noble and learned Lord has been wiser than me because he has tabled the parallel amendment under subsection (3), while I have not done so. But it is the same issue that exists under Clause 2(3). I seek to persuade the noble and learned Lord and the Committee that this provision should not be here. I am very grateful that the noble and learned Lord the Master of the Rolls is still with us at this late hour, because this is a matter that directly concerns the conduct of business and the relationship between the High Court and the county courts.

I suggest that there are four reasons why this matter should be given further consideration and why the power of striking out should not be contained in these two clauses. First —I am sure the noble and learned Lord the Master of the Rolls will correct me if I am wrong—it is a provision that is rarely used. I cannot recollect an occasion when the court has chosen to make that draconian order. It will have chosen to make the sensible and right order to transfer the litigation into the proper court and if any sanctions were needed then the court will have applied a sanction —an order for costs against the party which commenced the proceedings in the wrong forum.

That leads me to the second reason. That is the need test. We must look at the provision afresh. If the amendment is needed, then I suggest with all respect to the noble and learned Lord that we have to satisfy the test that it is a needed power. If it has not been used and is of an unnecessary severity then it should fail the need test.

I am asking the noble and learned Lord to take a fresh look at the provision for two further reasons. The striking out provision is hardly compatible with a Bill whose aim in Part I is to increase access to justice. Also it could cause injustice in circumstances where lay persons are conducting the litigation and the lay person has made the mistake of commencing proceedings in the wrong forum. The Committee will see in Clause 1(3) that a more complicated criterion is now required. In my submission, that increases the risk that injustice could arise as a result of the application of the striking-out provision.

In short, I suggest that justice will be fully served by having only the order for transfer. That is what the matter is all about and there is no need for this draconian striking-out power. I beg to move.

Lord Meston

While the provision for striking out is drastic, I envisage that it will be used only sparingly. I suggest that the answer to some of the points made by the noble Lord, Lord Hacking, is to be found in Amendment No. 18 tabled by the noble and learned Lord the Lord Chancellor. It will properly qualify the circumstances in which proceedings will be struck out. They will be struck out only if the court is satisfied that the person bringing the proceedings knew or ought to have known of the requirement which he has overlooked. The innocent lay person who quite properly the noble Lord, Lord Hacking, is concerned to protect will be protected by the qualification which is to be added by Amendment No. 18.

Lord Donaldson of Lymington

The debate appears to have proceeded upon the basis that a novel provision is being introduced by my noble and learned friend. If I attend any future Committee debates on the Bill I must bring with me a copy of the County Courts Act. However, I am certain that the provision is taken from the transfer provisions of the County Courts Act 1984.

Lord Hacking

That is right.

Lord Donaldson of Lymington

Under that provision, if one begins one's case in the wrong county court and the question of transfer arises, it can be transferred to another convenient county court or struck out.

It so happens that I was involved in a case concerning the Anglian Water Board in which it issued proceedings in a court which appeared to it to be reasonable and convenient. A village Hampden decided that it was not the right court. He proceeded to challenge the issue and the county court judge struck it out. We in the Court of Appeal were then faced with exactly the problem which has been discussed tonight. We said, "No, this really will not do. Of course transfer it to a court which is convenient to the village Hampden (the Anglian Water Board can put up with it) but do not strike it out". I do not wish to single out the Anglian Water Board but it happens that it was involved. However, if it tried to do so again that would be a different matter and I should be strongly in favour of striking out the case.

I am perfectly happy to accept the amendment proposed by my noble and learned friend the Lord Chancellor, although, with the greatest respect to him, I do not believe that it is necessary. It is the way in which the courts would operate the provision in any event.

The Lord Chancellor

I am extremely grateful to the noble Lord, Lord Meston, and my noble and learned friend the Master of the Rolls. Originally I intended that the court would have fairly wide discretions as regards subsection (1)(b). However, on reconsidering the matter, and seeing that in Section 34(2) of the County Courts Act, which is a good precedent, there appears the phrase used in Amendment No. 18, I thought that it may be as well to express it.

The object is to prevent people abusing the possibility and in that case giving the court the power to adopt a draconian remedy in the belief that it will prevent such an event happening again. The remarks made by my noble and learned friend suggest that the power given under the County Courts Act has been effective in that respect. As far as I can judge, it has been seldom used. I hope that this power will be used even less because I hope that such events will not occur too often. I shall consider what the noble Lord has said. If he will be kind enough to withdraw his amendment, I might be allowed to move my Amendment No. 18 and complete the proceedings.

Lord Hacking

In view of the representations made by the noble and learned Lord, I readily agree and beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

The Lord Chancellor moved Amendment No. 18: Page 3, line 8, after ("(b)") insert ("if the court is satisfied that the person bringing the proceedings knew, or ought to have known, of that requirement,").

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

On Question, amendment agreed to.

Viscount Ullswater

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.