Lords Sitting of 23 January 1990

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers— Read by the Lord Bishop of Leicester.

EC Fishing Quotas: Impact
Lord Campbell of Croy Lord Campbell of Croy asked Her Majesty's Government:
What impact they expect the new EC quotas for catches of sea fish will have on the British fishing fleet.
The Minister of State, Scottish Office (Lord Sanderson of Bowden): My Lords, I am very much aware of the serious difficulties which some fishermen could face during this year because of the reductions, particularly of haddock and cod in the North Sea, were essential in order to prevent further reductions particularly of haddock and cod in the North Sea, were essential in order to prevent further deterioration in stocks which are vital to the long-term future of the fishing industry.
Lord Campbell of Croy: My Lords, I thank my noble friend for that Answer. While conservation of threatened fish stocks must be the highest priority, do the Government foresee that the British fishermen affected will have to spend much of 1990 in port as part of the arrangements to keep within the quotas? If so, how are they to earn a living?
Lord Sanderson of Bowden: My Lords, quota management of these stocks is extremely important. Discussions are about to commence with the industry as to how that should take place. Various measures will have to be taken and some of them will be very tough. However, we should not now decide what they should be.
Lord Grimond: My Lords, will the Government bear in mind that on certain islands off the coast of Scotland it is impossible to find any employment other than fishing and that the situation there may require special treatment in the near future?
Lord Sanderson of Bowden: My Lords, I am aware of what the noble Lord has said. I was interested to read in Fishing News, published on 19th January, that last year Shetland attained record landings. I accept the fact that there are great difficulties in the North Sea as regards the fishing of haddock and cod. However, one ought to look most carefully at the value of the fish caught in 1989. The noble Lord will see that it increased, particularly in relation to haddock. This means that the situation was not so desperate as we had feared in 1989.
Lord Carmichael of Kelvingrove: My Lords, in the light of the agreed need to keep the quotas within the limits of scientific advice—we all accept
918
that—what is the reaction of the Government to a decision given last Friday in Aberdeen sheriff court by Sheriff Douglas Risk which has been described as appearing to drive a seine-net trawler through the agreement?
Lord Sanderson of Bowden: My Lords, I thank the noble Lord for asking that question. The Government are still studying the text most carefully. It may be necessary to make changes to fishing vessel licences. The points made by the sheriff will be borne in mind when deciding the basis on which future prosecutions take place. The Government have not yet decided whether they will appeal against the judgment.
Lord Mowbray and Stourton: My Lords, can my noble friend say why his right honourable friend is able to make an annual set-aside payment to farmers of £80 per acre for agricultural non-production when, in a similar capacity as Minister responsible for fisheries, he is unable to provide similar payments for fishermen who are being compelled by EC rules to set aside, no doubt for good purposes?
Lord Sanderson of Bowden: My Lords, I am sure my noble friend will be well aware of the difficulties encountered by the de-commissioning scheme which was criticised most strongly by the Public Accounts Committee and the NAO. The Government have looked carefully at the options open to them and must decide what is good value for money. There are major difficulties: not everyone agrees that de-commissioning is an answer to the problem of over-capacity. My noble friend should bear in mind the fact that the value of catches over the past 10 years has increased dramatically. Fishermen know well that they must accept good and bad years.
Lord Mackie of Benshie: My Lords, does the Minister agree that we are talking about the year to come—that is 1990—and not about how well the fishermen did in the past? Does he further agree that in many cases the fishermen's greatest expenditure is paying for boats which they were encouraged to buy, through grants, for large sums of money? If the year is as bad as is feared, is there not a case for the Government assisting by placing a moratorium on repayments for expensive boats?
Lord Sanderson of Bowden: My Lords, I am well aware of the difficulties which may be encountered in any year as regards cutting the opportunities to fish. However, although there is a difficult situation as regards the quotas of North Sea haddock and cod, the Government obtained the best possible deal at the December meeting of the Council of Ministers. Having obtained that deal we must try to ensure that the industry has a long-term future. I accept that the noble Lord has a point in saying that this year may be difficult. But that was also the case a year ago. I was not happy when the harbingers of doom 12 months ago were saying that the industry was in a state of collapse. It certainly was not.
Lord Stoddart of Swindon: My Lords, is it not a fact that only a short time ago Senor Marin, the

919
Spanish Commissioner for fishing, predicted that the British fishing industry would have to cut by 20 per cent? Would that not be a disaster for the British fishing industry and would it not be the result of greed on the part of other European nations? Is it not about time that decisions were made about the repatriation of our fishing assets to this country, this Government and this Parliament?
Lord Sanderson of Bowden: My Lords, the noble Lord would have a point if this country did not fish in international waters, but it does. Also one must realise—and I accept that this is a very difficult area—that one must reach an agreement as to the fishing opportunities of the various nations within EC waters. That is a very difficult subject. I do not believe that it should go unnoticed that four Ministers from this Government attended the Council of Ministers in Brussels in December and the result was very much better than Señor Marin's original plan suggested.
Lord Campbell of Croy: My Lords, I should like to refer to the Aberdeen court decision last Friday which dismissed the charges against a British skipper for over-fishing. While I recognise that there may be an appeal, if the judgment stands, does that not mean that the Government will have to reconsider the whole licensing system for British boats?
Lord Sanderson of Bowden: My Lords, obviously if there is a problem in relation to the sheriff's judgment, that will have to be taken into account by the Government, and taken into account speedily, because we must move foward to arrangements for the proper management of quotas at a very early date. That is why we hope to start those discussions with the industry very soon. I assure my noble friend that discussions are going on rapidly within government as to the effect of the sheriff's judgment.

Parliament: State Opening Proposal
2.43 p.m.
Viscount Mountgarret Viscount Mountgarret asked Her Majesty's Government:
Whether it would be desirable to have a fixed date for the State Opening of Parliament other than for the first after any general election.
The Lord Privy Seal (Lord Belstead): My Lords, the opening of a new parliamentary Session is a matter for the Royal Prerogative. In the Government's view, the length of a Session depends on the business to be conducted, which inevitably varies from Session to Session. A fixed date for the State Opening of Parliament would remove the flexibility of the present arrangements.
Viscount Mountgarret: My Lords, I am grateful to my noble friend for that Answer. However, does not business currently conducted produce the somewhat unedifying situation whereby government can and do change the proposed date to suit their own
920
purposes? If it could be stated on which date the Session would end, this House and another place could work to that date and stick to it. Furthermore, would not our Gracious Sovereign perhaps find it easier to manipulate her diary if she knew what we were doing?
Lord Belstead: My Lords, I can see the attraction of a fixed date from the point of view of many of your Lordships. In practice I believe that a fixed date might not suit the needs of Parliament. As my noble friend mentioned Her Majesty, it might possibly not suit the Royal programme.
This matter was looked at in 1914 by the Commons Procedure Committee, and by the Government Chief Whip in another place before a joint committee in 1923. It is interesting that on neither of those occasions was it thought that a fixed date was the answer.
Lord Cledwyn of Penrhos: My Lords, does the noble Lord not agree that his noble friend made some sensible points in his supplementary question? Does he not further agree that it would be possible to hold the State Opening of Parliament on or near the traditional date—that is, during the first week in November—if the Government planned their legislative programme more efficiently and more thoughtfully in the interests of this House? Does he recall that when we went into Recess last summer only 26 out of 35 Bills had received Royal Assent? Is that not a case of inefficiency and thoughtlessness? Will he look again at the position with his right honourable friends to see whether a programme could be launched which would be less taxing and frustrating for noble Lords on all sides?
Lord Belstead: My Lords, I readily acknowledge that the last two Sessions of Parliament began later in November than I would have wished. The noble Lord the Leader of the Opposition is, if I may say so with respect to him, constructive and patient always.
Noble Lords: Hear, hear!
Lord Belstead: My Lords, he is of course a doughty opponent on these matters. I cannot resist adding that late State Openings are not the perogative of any one Administration. Noble Lords opposite hold the record for a late State Opening in recent years; namely, 24th November 1976.
Lord Hailsham of Saint Marylebone: My Lords, does my noble friend recall that a highly radical government in 1911 passed 450 pages of public general legislation and that practically no government in recent years, at least in the past 10 years, has passed fewer than 3,000 pages of public general legislation? Is not one possibility that successive governments of different parties might be a little more economical of print and paper?
Lord Belstead: My Lords, my noble and learned friend is absolutely right. It is interesting that if one looks at the number of public Bills passed in recent years, there is not a definite trend. The number

921
simply goes up and down. However, what my noble and learned friend says is true; namely, that the sheer number of pages at which your Lordships are asked to look has increased, and I admit that.
Baroness Seear: My Lords, does the noble Lord agree, as he told us that this matter was last considered in 1923, that quite a lot has happened in 66 years?
Lord Belstead: My Lords, of course we looked at our procedures as a result of a committee set up by my noble friend Lord Whitelaw when he was Leader of the House. Perhaps I may suggest that it is too soon for us to go round that particular course again. However, the Government must look as carefully as possible at what is being brought before your Lordships and particularly at the number of amendments once a Bill has been introduced. I assure the House that that is something which I take very seriously indeed.
Noble Lords: Government amendments.
Lord Belstead: My Lords, yes, I mean government amendments.

Trafford Park Development Corporation
2.49 p.m.
Lord Dean of Beswick Lord Dean of Beswick asked Her Majesty's Government:
Under what circumstances the present chairman of the Trafford Park Development Corporation will not continue in that post, and what are their future plans for the corporation.
The Parliamentary Under-Secretary of State, Department of the Environment (Lord Hesketh): My Lords, the present chairman of the Trafford Park Development Corporation has expressed the wish not to be re-appointed when his contract expires on 9th February. A new chairman will be appointed as soon as possible. The corporation will continue to build on the foundations which have already been laid for the successful regeneration of the area.
Lord Dean of Beswick: My Lords, is the Minister aware that I was told before we rose for the Christmas Recess that the chairman of the Trafford Development Corporation was to be replaced? Does the Minister also recall that two years ago I challenged the wisdom of the Government appointing the same person to chair two large-scale quangos in the same area? Is it not a fact that too much responsibility has been loaded on to one person? We were led to believe that the plans for that area would generate 20,000 to 30,000 jobs in what was the largest manufacturing area in the United Kingdom. Is that still the Government's objective and when will some action be taken?
Lord Hesketh: My Lords, I am sure that the noble Lord, Lord Dean of Beswick, is well aware that the Government's commitment is to success. I am also
922
sure that the noble Lord knows that the Government are extremely grateful to Mr. Peter Hadfield for his contribution both to the Trafford Park Development Corporation and to the Greater Manchester Residuary Body. I can only add to that by pointing out to your Lordships' House that some 2 million square feet of commercial and industrial development is either completed or under construction and has already attracted a further £200 million of private sector investment into the area.
Lord Dean of Beswick: My Lords, perhaps I may press the Minister. I refer specifically to jobs in the manufacturing industry, not floor space that may become warehouses. Are the Government committed to the area once again becoming a major area of manufacturing, bearing in mind that last month we lost 45,000 more jobs in the manufacturing sector in Great Britain?
Lord Hesketh: My Lords, from the latter part of the supplementary question from the noble Lord, Lord Dean, I think it is fair to say that he is drawing an extension to the argument placed in the first Question. The fact is that what we have to provide at Trafford Park are jobs that are required for the successful future of this country within Europe and the world. We cannot define in advance the types of jobs they will be.
Lord McIntosh of Haringey: My Lords, in view of the fact that this House, like another place, spent many hours considering the economic development powers to be given to local councils in the Local Government and Housing Act 1989, will the Government now announce measures to extend the resources available to them? Will the Government now recognise that the role, however valuable it may have been in limited areas of the urban development corporations, might with advantage be taken over by local authorities?
Lord Hesketh: My Lords, as always, I am very excited that the noble Lord, Lord McIntosh, feels that I am able to make radical changes to government policy on the hoof. However, I can assure him that we believe the UDCs have been a great success and that the recent Bill which has now become an Act will also assist in providing opportunity for local authorities to increase their successful contribution.
Lord Mellish: My Lords, is the Minister aware that the London Development Corporation took over from local authorities and yet, in the 15 years it has had to manipulate the area it controls, it has not even built a toilet?
Lord Hesketh: My Lords, I have to confess to the noble Lord, Lord Mellish, that I was unaware of that specific point.

Ambulance Workers' Pay
2.52 p.m.
Lord Rochester Lord Rochester asked Her Majesty's Government:
Whether they are satisfied with the present arrangements for determining the pay of ambulance workers.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Hooper): My Lords, we are satisfied with the present arrangements as provided by the Whitley Council negotiating machinery.
Lord Rochester: My Lords, will the noble Baroness accept that, in asking this Question, I am not seeking to intervene in the current unhappy dispute? That would not be helpful. Will she confirm that the chief executive of the National Health Service has proposed that the staff and management sides should undertake a joint review of the ambulance service salary structure in which no preconditions would be set? Does this mean, for example, that if arbitration or a review body is ruled out, at least some flexible system, such as that now being introduced in parts of the Civil Service, may be used in future to determine the pay of ambulance workers?
Baroness Hooper: My Lords, part of the final offer which was made on 5th December included a complete review of the 1986 arrangements, which aim at maximum flexibility.
Lord Murray of Epping Forest: My Lords, does the noble Baroness agree that the arrangements for pay settlements made in the fire service in the winter of 1977, in which my noble friend Lord Callaghan played an incisive part, have produced more than a decade of excellent industrial relations in that critical service? Does she agree that it would indeed be folly to disrupt those arrangements? Does she also agree that in considering the future of the ambulance service it would be wise to reflect on the benefits which have been received from the fire service and to seek to negotiate something which would be, by agreement with the unions, penned to ambulancemen and women?
Baroness Hooper: My Lords, my information is that the last review of the salary structure was made in 1986, when ambulancemen and women got an exceptionally good deal at the introduction of the new salary structure. It cost a lot more then than the generality of other pay settlements. Since then, and including the present final offer, the real value of that deal has been more than maintained. In addition, the standard working week has been reduced by one hour.
Lord Boyd-Carpenter: My Lords, has my noble friend noted the attempt by the European Parliament to intervene in this matter? Will she indicate that a firm, positive and definite reply will be sent to it?
Baroness Hooper: My Lords, we have indeed noted that members of the British Labour Group in the
924
European Parliament have introduced the question of the ambulance service dispute. However, they have not made any direct contact with the Department of Health or the National Health Service management executive, as far as I am aware.
Lord Wyatt of Weeford: My Lords, will the noble Baroness agree that, if the workers in the highly inefficient ambulance service want more pay, they should propose higher productivity and savings in that service to pay for it?
Baroness Hooper: My Lords, I agree with the noble Lord in his basic premise that high settlements anywhere, without compensating productivity gains, undermine competitiveness and cost jobs.
Lord Bottomley: My Lords, how can the Minister say the situation is satisfactory when this strike has been going on for weeks and does not appear to be coming to an end? Why do not the Government, instead of making statements every other week—in some cases expressing a different view; and the Minister has today referred us back to the Whitley Council—do what any sensible employer would do and submit the case to arbitration?
Baroness Hooper: My Lords, we believe the Whitley Council machinery is the appropriate machinery in this case. I have to say that the main ambulance unions have consistently refused to negotiate on the final offer made on 5th December last year. At the only joint meeting since then it was rejected out of hand without discussion.
Lord Colnbrook: My Lords, with reference to this dispute some people say that the ambulancemen have been offered 6·5 per cent. and others say that they have been offered 9 per cent. Can my noble friend help me and the House by saying who has been offered what?
Baroness Hooper: My Lords, we cannot understand why NUPE and its associated unions keep insisting that the final offer is still only 6·5 per cent. when everybody has said as plainly as they can that it is at least 9 per cent., backdated to 1st April. That means that a qualified ambulanceman or woman would get back pay to the end of December of up to £680 and up to £980 in London.
Lord Winstanley: My Lords, at the risk of upsetting my noble friend, who feels we should not comment on the present dispute, perhaps I may ask the noble Baroness whether, had her circumstances been different and she herself had become an ambulance worker (I am sure she would have been a very efficient and dedicated one), she herself would have been prepared to accept a pay rise of 6·5 per cent. in the present circumstances.
Baroness Hooper: My Lords, as I believe I just said, it is not 6·5 per cent. The noble Lord must remember that this offer was made almost a year ago; it relates to April last year. It coincides very well with other agreements made within the National Health Service.
Lord Carr of Hadley: My Lords, does my noble friend agree that however unsatisfactory the pay settlement system for the ambulance workers may appear this year it would be wrong in principle and in practice to alter that system without looking at the system of pay settlements if not throughout the whole public service at least throughout the health service? It would be most unfair on other sectors of workers in the health service to make one ad hoc change, which seems to be what so many noble Lords are pressing for, in my view quite wrongly.
Baroness Hooper: My Lords, I am grateful to my noble friend for that most reasonable point. As I said previously, it is a better offer than that accepted by over 200,000 other staff also doing important work in the health service, the offer having been made on the same basis.
Baroness Seear: My Lords, has anyone considered—I am sure that they have not—blowing the dust off the Megaw Committee Report? I declare an interest because I was a member of that committee on the pay of non-industrial civil servants. It recommended that negotiations should take place within the inter-quartile range in comparison with the private sector. That would seem to be particularly appropriate to such people as ambulance workers.
Baroness Hooper: My Lords, we are aware of that point.
Lord Campbell of Alloway: My Lords, does the Minister agree that when an industrial dispute has to be resolved according to existing arrangements, by and large it is seldom profitable to consider other arrangements, in particular if those other arrangements could well involve serious and complex problems of classification?
Baroness Hooper: My Lords, I am grateful to my noble friend for raising that point. In an organisation where pay accounts for over 70 per cent. of costs it is essential that NHS management retains control of the amounts that it pays out for salaries and wages. It has to ensure that pay awards do not divert resources from patient care.
The Earl of Halsbury: My Lords, are the Government giving serious consideration to the possibility of transferring qualified ambulancemen at least to the responsibility of the pay review body for nurses, midwives and professions supplementary to medicine? It seems to me that it might be an easy solution in the future.
Baroness Hooper: My Lords, in looking to the future we are looking for greater flexibility. We recognise that a modern ambulance service needs to reward the use of additional paramedical skills. That is why the current offer includes an additional £500 per annum for staff with extended training to National Health Service training authority standards.
Perhaps I may make a further point. We have also offered to agree with the unions a national
926
framework for the recognition of staff with intermediate skills with payment backdated to 1st April 1989.
Lord Stallard: My Lords, is the noble Baroness aware that her complacency about the adequacy of the present arrangements will not be shared by millions of people up and down the country? They will certainly not be happy with the replies that she has given to some of the very pertinent points that have been raised. A 9 per cent. increase over 18 months is 6·5 per cent. over 12 months. We continue to say therefore that 6·5 is the rate of annual increase.
Baroness Hooper: My Lords, I hope that I have not given the impression of complacency. I have pointed out that the very great importance we attach to these negotiations is in order to ensure that pay awards do not divert resources from patient care.
Lord Ennals: My Lords, perhaps I may put two questions to the noble Baroness. First, is she aware that on 28th November 15 Peers and Cross-Benchers wrote to the Secretary of State about the ambulance dispute? They were all people who had had great experience with the National Health Service. It took him five weeks to answer. He then said that he would not receive a deputation. Was that not rather discourteous?
Secondly, what is one to make of a Secretary of State who on "Panorama" a week ago called for a two-tier health service and a two-tier ambulance service; and three days later denied that he had said what millions of people heard and saw him say?
Baroness Hooper: My Lords, I am grateful to the noble Lord for giving me notice of the first part of his question. I have to make the point that the Christmas Recess period intervened. My right honourable friend appreciated the offer of a meeting but, as I understand he made clear in his reply, matters had moved on since the letter was written. Management had by then made the final offer of 5th December which included the 9 per cent. basic increase over the 18-month period, an additional £500 for paramedical staff, and the other factors that I have already touched upon this afternoon. Unfortunately I did not see the "Panorama" programme to which the noble Lord referred. However, with regard to editing arrangements, not all that one reads in the newspapers should be taken at face value.
Lord Mackie of Benshie: My Lords, what is the average pay in the ambulance service? How does it compare with the average industrial wage?
Baroness Hooper: My Lords, the national rate for a qualified ambulanceman is currently £10,093. In ondon a qualified ambulanceman earns £11,074 per annum. Those are basic rates. Individuals may have take-home pay that varies.
Lord Stoddart of Swindon: My Lords, in her reply to my noble friend about the "Panorama" programme, is the noble Baroness aware that she is

927
suggesting that the programme makers had "fixed" that programme? Since we know what we saw and heard, is the noble Baroness suggesting that the programme was edited so that we did not hear what we heard or see what we saw?
Baroness Hooper: My Lords, I hope that I made it clear that I did not see the programme. I therefore did not hear or see anything. Nevertheless, as a general premise I am sure that the noble Lord will accept what I said earlier.
Lord Rochester: My Lords, the noble Baroness referred earlier to the Whitley Council. Although management representatives are in theory free to negotiate with the staff side of the Whitley Council, is it not the case that in practice settlements can be reached only with the prior approval of the Secretary of State or even the Treasury? Are there therefore not three sides to these negotiations rather than two?
Baroness Hooper: My Lords, no negotiators, whether in the public or private sector, can be expected to go into pay negotiations with a blank cheque. The National Health Service management agrees with Ministers the extent of the negotiating limits for various staff groups. How these are used is for the management side to determine.

Business
Lord Denham: My Lords, it may be for the convenience of your Lordships to know that the Committee stage of the Courts and Legal Services Bill will be adjourned at about 7.30 p.m. for about an hour and that during this adjournment the Co-operative Development Agency (Winding Up and Dissolution) Order 1989, the European Communities (Privileges of the European School) Order 1989 and the European Communities (Definition of Treaties) (European School) Order 1989 will be taken.
Penzance Albert Pier Extension Bill
Read a third time, and passed, and returned to the Commons with amendments.

Courts and Legal Services Bill [H.L.]
3.9 p.m.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee. —(The Lord Chancellor.)
Lord Simon of Glaisdale: My Lords, before your Lordships go into Committee on this Bill, perhaps I may ask my noble and learned friend or the noble Lord the Leader of the House how many days it is
928
proposed to give for discussion in Committee; and what hours will your Lordships be expected to sit? I ask that question because the original allotment was four days. One day has now been added, though it was put on the Order Paper only yesterday; and, as your Lordships will understand, that is a grossly inadequate time for the discussion of such a Bill.
As for the length of sittings, I was assured that the Committee would sit normal hours. Evidently, that means sitting at the latest until 10.30 p.m. or 10.45 p.m. The noble Lord the Chief Whip, who was kind enough to speak to me about the matter, did however warn that, if we fell badly behind, the Committee might have to sit longer hours. I see that we were at one, even though over the telephone.
We have so far had only one day in Committee and noble Lords were required on that occasion to sit until 10.45 p.m. After only one day in Committee, I saw on the Cross-Benchers' notice, which has the authority of the noble Lord the Chief Whip, a warning that on the third day of Committee— on Thursday—noble Lords may be required to sit late or very late. "Late" clearly means after 10.45 p.m. and "very late" must be considerably worse than that, probably after midnight.
In determining what is a reasonable period for discussion, one can compare this Bill with the Children Bill of the last Session, for which my noble and learned friend was responsible. Six days were given for discussion in Committee. But that Bill was quite uncontroversial. It was based on wide consultation and commanded general agreement. This Bill, on the other hand, stands in important regards in contradiction of the recommendations of a recent Royal Commission. It is of high constitutional importance, as the noble Lord, Lord Beloff, an eminent constitutional historian, pointed out at Second Reading.
There is another peculiar aspect of the Bill's discussion in Committee. At Second Reading a great number of noble Lords put their names down to speak. My noble and learned friend, very naturally and properly if I may say so, did not adopt the usual course of explaining each clause in succession in amplification of the explanatory memorandum. As a result we are bound to be a little slower than usual in ascertaining the effect and meaning of each clause.
Moreover, last Tuesday we discussed the very important matter of the resources that would be available to make Part I work at all. It soon became clear that the financial part of the explanatory memorandum bore no relationship to what was actually involved. My noble and learned friend understandably could not give figures in pounds, shillings and pence because Part I of the Bill is not to have effect until 1991–92. He gave a number of starting figures which require considerable working out and probing. In all parts of the Committee it was felt essential to try to clarify what resources should be available.
If ever a Bill required longer time in Committee than the Children Bill, it it this Bill. If ever a Bill of high constitutional importance was unsuitable for hustling through this House hugger-mugger, it is this Bill.
Lord Belstead: My Lords, I understand the concern of the noble and learned Lord that this important Bill should be considered properly in Committee. That is our constitutional duty. We are all agreed that it is something which we are determined to see done. I should like to give an assurance that there is no question of the Government trying to hustle the Bill through. However, it is the practice of the House, when we have a substantial Committee stage on our hands, that progress should be reviewed as the Bill goes along. I promise that we shall do that through the usual channels.
The noble and learned Lord was good enough to make the point that an additional day, making five days in Committee, as proposed at the moment, has been allocated on the Order Paper. However, perhaps I may add one point to what I have said. It must surely be for the convenience of every noble Lord to know where we shall reach at the end of the day so that we know what will be the business on the Bill on the next sitting day. If we are obviously falling short of reasonable targets for the different days, we shall have to face the prospect of having to sit rather later on certain days.
Lord Mishcon: My Lords, the noble and learned Lord, Lord Simon of Glaisdale, has the respect and affection of every Member of the House. I am sure that he will not think me discourteous if I say that one possible reason for the delay in getting through the provisions of the Bill is speeches of the length of the noble and learned Lord's speech on the mere subject of how much time we are taking. I say that with deep respect.
It is vital that this important Bill has the definite consideration of the Committee but that does not mean that one has to make a long speech to make a point on an amendment. It is rather sad that we did not make more progress on the first Committee day. Part II is an important part of the Bill—possibly, many Members of the Committee may think, the most important part. We are dealing today with a part of Part I, having completed a small part of it on the last occasion. I plead with the Committee and with the Leader of the House that we aim at completing Part I today, whatever time we have to sit to, in order that on the next occasion we may with certainty reach Part II and aim to complete the Bill in the five days allocated to it.
Lord Belstead: My Lords, the noble Lord is absolutely right. It was because the House took some time in getting started on the first day—we discussed only Clause 1—that it was agreed through the usual channels that there should be an extra day. I assure the noble and learned Lord, Lord Simon, that we shall keep looking at the matter as we go along. The noble Lord, Lord Mishcon, has made my point better than I did. It is essential that noble Lords should know where we shall reach at the end of the day. I join the noble Lord in expressing the hope that we reach the end of Part I today so that we can start Part II on Thursday.
Lord Renton: My Lords, I feel that we should finish Part I today. We should have no difficulty in doing so at a reasonable hour provided that we do not make our speeches too long. When my noble friend says that we shall finish in five days, I assume that he means five days starting from today, which would mean six days altogether.
Lord Belstead: My Lords, for the avoidance of doubt, no, I did not mean that.
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 2 [Transfer of proceedings between courts]:
Lord Hacking Lord Hacking moved Amendment No. 19:
Page 3, line 17, at end insert ("to the parties").
The noble Lord said: In moving this amendment I shall, with leave, also address Members of the Committee on Amendment No. 20, tabled in the name of the noble Lord, Lord Mishcon, and three other noble Lords.
Clause 2(1) substitutes Section 40 of the County Courts Act 1984 concerning the transfer of proceedings from the High Court to the county court. When the High Court makes the decision to transfer proceedings from that court to the county court, the authorities must consider to which county court the proceedings should be sent. The test provided under Section 40(4) of the County Courts Act is that the High Court in making its decision on the choice of county court should consider the convenience of the parties. Such matters as where the parties live, the distances to be travelled by witnesses, and so on, need to be considered.
The provision in the new proposed Section 40(4) omits the consideration of the convenience of the parties. Presumably the noble and learned Lord has omitted that provision because he is concerned that there should be efficient use of court resources, of continuous trial centres and perhaps, after computerisation, of a central computer records system which will indicate to those transferring cases from the High Court which county courts can most conveniently and expeditiously take a particular case. No doubt circumstances could arise where certain courts have less business than others and therefore those with less business would be ready and able to take a transferred case more quickly.
While it is important—and I recognise that fact in moving this amendment—for the courts to have freedom to consider the choice of court on the basis just described, in my submission it should not override the interests of the parties. There are two alternative provisions before the Committee designed to tackle the problem. It may well be that my amendment, which sticks entirely to the wording currently contained in the County Courts Act, is, or could be, a little inhibiting on the High Court. It may be that the amendment about to be moved by the noble Lord, Lord Mishcon, gives greater flexibility to the court. If Members of the Committee feel that way, I shall be happy to withdraw my

931
amendment and tread—as I have already done and, I imagine, I shall do so again—in the footsteps of the noble Lord, Lord Mishcon. I beg to move.
Lord Mishcon: I agree with every word said by the noble Lord, Lord Hacking. I prefer the wording of my amendment for the very reason which he gives. I shall move Amendment No. 20 when my turn arises.
Lord Renton: I also agree. The method proposed by the noble Lord, Lord Hacking, for amending this provision seems to me to be preferable to that contained in the amendment to which I have put my name.
Lord Campbell of Alloway: I support this amendment. However, in considering them both I prefer that put forward by the noble Lord, Lord Mishcon, for the reasons that have already been given. It is crucial that one or other of these amendments should be introduced to ensure that administrative convenience shall not defeat the convenience of the parties. As some noble Lords will remember, Lord Atkin once had something to say about administrative convenience not being on speaking terms with the due administration of justice. Of course, that is really what this is all about.
The Lord Chancellor: The noble Lord, Lord Hacking, is right in saying that the reason we altered the wording is to make it possible for the court to take account of convenience generally. Of course the convenience of the parties is included in that consideration. However, I did not wish to restrict it to the convenience of the parties because, for example, if it was convenient for certain parties to have a long case in a particular court it may be very inconvenient from the point of view of other litigants wishing to litigate in that place. In seeking to dispense justice to all litigants, the High Court would want to take account generally of convenience.
I think therefore that there is very little between the amendment tabled in the name of the noble Lord, Lord Mishcon, and what I wish to achieve. If the noble Lord is willing to leave the matter with me I shall see that it is reconsidered. I intended to include the convenience of parties along with the convenience of all others who might have recourse to the court. These are matters for the High Court to consider in making such a transfer.
Lord Mishcon: Having regard to what the noble and learned Lord just said, and in the circumstances, I wonder whether he could simply accept the amendment I propose. I would hope that he do so and thereby the first acceptance by the Government of an amendment could be recorded. It would make the Government appear in a very reasonable light if, having agreed with everything said in regard to this amendment, the noble and learned Lord accepted it.
The Lord Chancellor: I have a moment to consider the amendment before it is formally moved.
Lord Hacking: In view of my preference for the second of these two amendments, the best course for me to take now is to withdraw the amendment. I leave it to the noble Lord, Lord Mishcon, to press the matter if he wishes to do so with Amendment No. 20. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mishcon Lord Mishcon moved Amendment No. 20:
Page 3, line 17, at end insert—
("having taken into account the convenience of the parties").
The Lord Chancellor: I think that it would be perfectly reasonable for me to accept the amendment. It may be that on consideration parliamentary counsel will wish to finish it in some way because the phraseology is perhaps not the most expedient. However, in order to make progress, I shall accept the amendment.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 21:
Page 3, line 20, leave out from ("transfer") to end of line 22.
The noble and learned Lord said: In moving this amendment I shall speak also to Amendment No. 26. These two amendments make parallel provisions relating to transfers from the High Court to the county courts and to transfers from the county courts to the High Court.
Amendment No. 21 omits that part of the provision which provides that a transfer of a case from the High Court to the county courts does not prevent the enforcement in the High Court of any judgment or order made in that case before the transfer. These words were appropriate in the old Section 40 of the County Courts Act 1984—which is being replaced here in an amended form—because the question of transfer of enforcement proceedings was dealt with in a separate section; namely, Section 106. In this Bill, however, Section 106 is repealed and subsumed within the general transfer arrangements under this clause. Although this is a desirable simplification of the County Courts Act, it has the effect of making these words inappropriate. Clearly, when enforcement proceedings are ordered to be transferred from the High Court the intention is to prevent the judgment from which they arise being enforced in the High Court. That is the point of such a transfer.
Amendment No. 26, as I said, parallels this amendment but relates to transfers of cases from the county courts to the High Court. Exactly similar considerations apply. Noble Lords will remember that I sought to explain last week what I had in mind generally in this connection. I beg to move.
Lord Renton: It seems to me that the amendment proposed by my noble and learned friend undoubtedly represents better drafting than that which appears in the Bill. He has explained why there is this difference between the powers of the High Court and those of the county court as a result of this amendment. However, the reason is technical and results from what is contained elsewhere in the

933
Bill. Therefore, I think that we should all support these amendments.
On Question, amendment agreed to.
3.30 p.m.
The Lord Chancellor The Lord Chancellor moved Amendment No. 22:
Page 3, line 33, leave out paragraphs (a) to (c) and insert—

("(a) the powers of any court to set aside, correct, vary or quash a judgment or order of the High Court, and the enactments relating to appeals from such a judgment or order, shall continue to apply; and

(b) the powers of any court to set aside, correct, vary or quash a judgment or order of a county court, and the enactments relating to appeals from such a judgment or order, shall not apply.").

The noble and learned Lord said: I should like to speak also to Amendment No. 27. The amendments are essentially drafting amendments. Amendment No. 27 seeks to change the way in which the old Section 106(2) of the County Courts Act 1984 has been incorporated into new Section 42 of that Act. The aim continues to be that when a judgment is transferred for enforcement, the court from which it is transferred remains responsible for it for the purpose of revision and appeal; in other words, if it is a High Court judgment transferred for enforcement, the High Court will be responsible.
The amendment makes it clear, however, that when a county court judgment is transferred to the High Court for those purposes, the High Court as well as the county court will be responsible for revision. That is because the High Court always exercises a supervisory jurisdiction over the county courts.
Amendment No. 22 merely ensures consistency in the drafting of the equivalent provision governing transfers from the High Court to the county courts. I believe that this is a drafting improvement. I beg to move.
Baroness Phillips: I shall not delay the Committee, but I am mystified as to why the noble and learned Lord has to bring forward so many amendments when this is the first time that the Bill has come into either place. We presumably employ skilful, and, I imagine, expensive legal experts to draft Bills. As far as I can count, there are about 20 of these amendments. They are straightforward, and one wonders why we have to change the Bill at this stage. Why was it not correct before it came to us?
The Lord Chancellor: I believe that it is fair to say that it is right to deal with these matters with a fairly open mind. If someone makes a suggestion which would improve what we have, we should try to make use of that suggestion. That is what I have done. Bills are generally drafted within government. When the Bill is open to public scrutiny, many people make suggestions. I have always taken the view that it is my job to do my best to get the Bill right in the light of all the considerations available. The amendments that we are discussing, and later ones, are intended to take account of that process. That is why I always listen carefully to what Members of this place say in
934
the hope that I may be able to improve Bills still further.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 23:
Page 4, line 9, leave out ("Act or) and insert ("County Courts Act").
The noble and learned Lord said: This is a drafting change to the reference to the County Courts Act 1984 in subsection (2) of the clause to achieve consistency. I beg to move.
On Question, amendment agreed to.
Lord Renton Lord Renton had given notice of his intention to move Amendment No. 24:
Page 4, line 20, leave out ("by any procedure provision").
The noble Lord said: I shall not move Amendment No. 24, but I see that it is grouped with Amendment No. 25, which it is suggested has already been debated. That is an amendment tabled by my noble and learned friend. I was not aware that it had been debated and therefore it should have been grouped separately on the list.
The Lord Chancellor: My impression is that the amendment was debated with Amendments Nos. 17 and 18. It was debated in connection with the amendment moved by the noble Lord, Lord Hacking, to delete the court's power to strike out when an action was brought in contravention of a procedure provision. All the amendment does is add a requirement that, if the striking power is to be used, it can be used only in the event described in the amendment. We tended to assume that the court would not use the power except in those circumstances but, having regard to the amendment moved by the noble Lord, Lord Hacking, it was thought better to incorporate it. It is an example of the procedure that I described to the noble Baroness, Lady Phillips.
Lord Renton: I am grateful to my noble and learned friend. I am sure that he is right.
[Amendment No. 24 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 25:
Page 4, line 24, 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 the amendment. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 26:
Page 4, line 33, leave out from ("transfer") to end of line 35.
The noble and learned Lord said: I spoke to the amendment with Amendment No. 21. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 27:
Page 5, line 1, leave out paragraphs (a) to (c) and insert—

("(a) the powers of any court to set aside, correct, vary or quash a judgment or order of a county court, and the

935
enactments relating to appeals from such a judgment or order, shall continue to apply; and

(b) the powers of any court to set aside, correct, vary or quash a judgment or order of the High Court, and the enactments relating to appeals from such a judgment or order, shall not apply.").

The noble and learned Lord said: I spoke to the amendment with Amendment No. 22. I beg to move.
On Question, amendment agreed to.
[Amendment No. 28 not moved.]
Lord Prys-Davies Lord Prys-Davies moved Amendment No. 29:
Page 5, leave out lines 23 to 26, and insert—
("(b) prescribing the circumstances in which a registrar or clerk may decide to transfer proceedings from one court to another after giving the parties an opportunity to make representations, and the procedure consequent upon any such transfer.").
The noble Lord said: The amendment seeks to achieve two things: first, that the decision to transfer proceedings from one court to another is taken by a registrar or clerk. As the clause stands, that important decision can be taken by any "officer of the court". Any "officer of the court" is widely defined in Section 147 of the County Courts Act 1984 to include, along with the registrar and the clerk,
"any bailiff, usher or messenger in the service of the court".
Given the importance of the decision, it is surprising that the Bill does not restrict the decision-making to an officer with the necessary experience, knowledge and wisdom. That would be a registrar or clerk. Secondly, the amendment would ensure that the parties to the proceedings are given an opportunity to make representations.
It is pointed out in the Notes on Clauses that the power of transfer is important if the courts are to ensure that judicial time is to be saved. The Notes on Clauses indicate that it is envisaged that the power will be used to transfer a case from a county court with a long waiting list to a county court with spare capacity. Clearly, we agree with that objective. Court resources are not to be wasted. It is a fair objective. Here again, however, it is important that regard should be had to the views of the parties. The system should be seen to be facilitating co-operation with the parties. It may be said by the noble and learned Lord that the parties are consulted in the vast majority of cases. That may be so, but we believe that that practice should be acknowledged in the Bill and converted into a duty. I beg to move.
Lord Renton: One effect of the amendment would be that the expression "officer of the court" which is in the Bill at line 24 on page 5 would disappear and be replaced by the expression "registrar or clerk". I am trying to find whether the expression "officer of the court" is defined in the Bill. It does not seem to be. If it is not and what is meant is a registrar or clerk, then it would be better to express it so.
Lord Hacking: Perhaps I may help the Committee. The term is defined in the County Courts Act. I shall look up the correct section. The term includes people such as ushers and messengers of the court.
The Lord Chancellor: As the noble Lord, Lord Prys-Davies, has said, the phrase "officer of the court" is defined in the statute into which the provision is being put. In that respect it has an advantage over the word "clerk" because "clerk" has no such definition. I should like to remind the Committee of the context in which the phrase applies. It is a power given to the county court rule committee to make arrangements. The Committee may take it that the county court rule committee would make appropriate arrangements to deal with the matter. As it is a matter of procedure, I suggest that it is right to leave it to the county court rule committee to prescribe the circumstances in which proceedings may be transferred by the decision of any officer of the court, whose identity is for the Committee to specify, from one court to another, and the procedure consequent upon any such transfer.
I have no doubt that the county court rule committee would think it right to enable the matters affecting the parties to be properly taken into account before a decision is made. I venture to suggest to Members of the Committee that these matters are best left to the county court rule committee, the statutory body with responsibility in the area.
Lord Mishcon: I tried to make this point on the first day in Committee and perhaps the Committee will bear with me if I make it again. This part of the Bill has been heralded as a way of making our procedures in court and our trials shorter in duration, quicker to come on and more economical in the course of the trial procedure. The noble and learned Lord deserves the thanks and praise of all of us for attempting to do that.
It has also been heralded therefore as something which exists for the convenience of the parties. Perhaps I may quote the previous amendment which was agreed to. It should be ostensibly and clearly on the face of the Bill, and I think that it would help if we made that intention quite plain. It does not stop the rule committee from borrowing or altering this wording, but the intent ought to be clear on the face of the Bill that the parties will be heard in regard to such matters of transfer. I feel that in the circumstances the noble and learned Lord may, on reconsideration, agree to the amendment.
The Lord Chancellor: I did not wish to take technical matters, but one of the consequences of the Bill under a later clause is to substitute a new name for the registrar. I shall consider what has been said but I do not wish to go further than that at present. I shall consider whether some alteration to what is in the Bill should be made in the light of what Members of the Committee have said. It is a matter for the rule committees. They are likely to wish to give opportunities to parties on a lot of matters where that is not expressly stated. It is one of their obligations to make sure that the procedure is fair. However, I shall consider what the noble Lord said.
Lord Mishcon: On matters of principle such as this I consider that the Committee should state its view. I say with the deepest respect that where the

937
principle is right, unless there is a good reason to the contrary the Government ought to accept the amendment.
The principle is clear, and therefore if the noble and learned Lord cannot give an undertaking that these words or similar words will be incorporated in the Bill at Report stage he leaves me no alternative but to divide the Committee. I do not wish to do so. If the noble and learned Lord will say that he will favourably consider the amendment, I shall withdraw my proposal.
The Lord Chancellor: I am perfectly prepared to do that. I shall consider with favour any representation that the noble Lord has made, and this one perhaps with more favour than others.
Lord Mishcon: In the circumstances, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 2, as amended, shall stand part of the Bill?
Lord Simon of Glaisdale: This clause and subsequent clauses amend by reference the County Courts Act and in some cases the Supreme Court Act. I think we are bound nowadays to accept legislation by such a reference but we have to consider the matter—as my noble and learned friend Lord Hailsham will remember—in relation to the Housing Act 1985. What was in question then was consolidation, or, as an alternative, reprinting the amended statute in the statutes in force. My noble and learned friend then managed to achieve both: first, the reprint and subsequently a massive consolidation.
I do not know whether my noble and learned friend the Lord Chancellor can say anything about the prospects of consolidation. Unless that is imminent, what is his view about the reprint of the statutes in force, which are very valuable to practitioners? If there is to be a reprint, there is no reason to wait until the Bill has passed into law. The editor of the statutes in force can perfectly well set machinery in motion at this stage. With that in view, perhaps my noble and learned friend the Lord Chancellor will say, if the editor has not already been approached, whether he will immediately be approached.
3.45 p.m.
The Lord Chancellor: I consider that the best way to deal with such amendments is by textual amendment of the basic statute—in this case the County Courts Act. For my part, if the Bill becomes law I should wish to pursue the question of consolidation of these statutes. That would be intended as a structure for the High Court and the county courts for some time to come.
On the question of seeking to give instructions before the Bill becomes law, I do not know that that would be wise in this case. Consolidation is certainly a matter which I would very much wish to have in mind.
Lord Simon of Glaisdale: I am most grateful to my noble and learned friend. I thought I had made it clear that I do not quarrel with textual amendments of this kind. They seem to me to be inevitable. Consolidation takes a long time and my noble and learned friend understandably could not hold out any immediate prospect. What can be done immediately is the reprinting of the statutes in force. I ask my noble and learned friend to be rather more forthcoming about that because it is of urgent importance to practitioners.
Lord Chancellor: I indicated that I would consider that. It will be some time anyway before these matters are brought into force, for the reasons which I explained last time regarding this part of the Bill. I shall consider what my noble and learned friend said.
Clause 2, as amended, agreed to.
Clause 3 [Remedies available in county courts]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 30:
Page 5, leave out line 36 and insert ("—

(a) absolute or conditional;

(b) final or interlocutory.").

The noble and learned Lord said: This is a purely drafting amendment to subsection (2) of the new Section 38 of the County Courts Act 1984 to make it clear that in line 36 of page 5 there are two pairs of alternatives. As drafted, the provision is open to misunderstanding. I beg to move.
On Question, amendment agreed to.
The Chairman of Committees (Lord Aberdare): If Amendment No. 31 is agreed to, I cannot call Amendments Nos. 32 to 36 inclusive.
Lord Hacking Lord Hacking moved Amendment No. 31:
Page 5, leave out from beginning of line 37 to end of line 18 on page 6 and insert—
("(3) A county court shall not have power to order mandamus, certiorari or prohibition.").
The noble Lord said: Clause 3(1) seeks to substitute Sections 38 and 39 of the County Courts Act 1984 and deals with the remedies that are available to the county courts in the orders which they make.
In the proposed new subsection (3) of the new Section 38 of the County Courts Act there is a prohibition on the county courts exercising certain powers which are used exclusively in the High Court in matters of judicial review. Those are the powers of mandamus, certiorari or prohibition. The Committee may recall that the effect of agreeing that Clause 1 stand part of the Bill—in particular that Clause 1(6) stand part—is that matters of judicial review will therefore remain in the High Court and will not be taken in the county court.
Under subsection (3)(b) of the proposed new Section 38 of the County Courts Act it is specified that county courts shall not have power,
"to make any order of a prescribed kind".

939
Prescribed kinds of orders will therefore be subject to subordinate legislation. There are certain orders that are currently used in the High Court, such as Mareva injunctions which freeze the assets of another party when there are good grounds for believing that those assets may be dissipated and hence the plaintiff be deprived of the use of them. There is another order currently used in the High Court, an Anton Piller order, which gives certain rights of searching and seizing when there are good grounds for believing that documents or assets will be destroyed.
As it is proposed to give county courts extensive further powers and extensive further jurisdiction within the terms of this Bill, two important points arise. First, the orders to which I have referred are of importance to the High Court. They are sparingly used but on the occasions when they are used they are of considerable importance. If the Committee transfers under the terms of the legislation considerable further powers to the county courts, litigants in the county courts will be at a disadvantage on the special occasions when there is a need for such orders. In those circumstances, although the trial judge may be willing to give the parties those orders their lawyers will have to seek a High Court judge, explain the issues afresh to him and by that means obtain the orders they are seeking. That will cause a rise in costs and, I suggest, will diminish the efficiency of the county courts.
Secondly, although there is an express provision under the proposed new Section 38(4)(b) for the transfer to the High Court of proceedings when it is thought by a trial judge in a county court that it may be necessary to use such orders, there are two disadvantages. First, speed is of the essence, particularly when an Anton Piller order is involved, and, secondly, there is the matter of cost. It is for those reasons that I urge this amendment upon the Committee.
As regards the deletion of the whole of subsection (4) of the proposed new Section 38, it concerns the regulations which would follow from giving power under the legislation under the terms of the proposed subsection (3)(b). Therefore, those regulations are no longer needed. I beg to move.
Lord Lloyd of Kilgerran: I wish to raise a matter about which there is considerable anxiety and which arises out of the terms of the recent Copyright, Designs and Patents Act 1988. Anxiety has been expressed by the Chartered Institute of Patent Agents as regards why it is printed at the bottom of page 115 of the Bill that Section 290 of the Copyright, Designs and Patents Act 1988 is to be repealed. Incidentally, I am speaking against the amendment. I may be entirely wrong in raising this matter at this stage, but there is anxiety as regards how far regulations which I believe the noble and learned Lord said would be produced to enforce the wish to have certain patents and intellectual property cases sent to the county courts in order to save time and expense will be affected by this proposed new section, which deals with the remedies available in county courts.
940
I am sure that the noble and learned Lord will be able to reassure me that there is no intention under the Bill in the clauses relating to amendments to the County Courts Act to take away the rights that were given under the Copyright, Designs and Patents Act 1988. Those rights were accepted with some enthusiasm by the Chartered Institute of Patent Agents. Perhaps the regulations which now apply under the Copyright, Designs and Patents Act 1988 would be covered by subsection (4) of the proposed new Section 38 of the County Courts Act 1984 which is to be amended.
The Lord Chancellor: The purpose of this part of the clause is to deal with the orders that a county court should have power to make. As there is an express statutory prohibition against a county court having judicial review jurisdiction, paragraph (a) of the proposed subsection (3) is clearly correct. The noble Lord, Lord Hacking, does not wish to remove that.
As regards the point raised by the noble Lord, Lord Lloyd of Kilgerran, it is not my intention to cut down any existing powers of county courts in relation to patents and other matters covered in the recent legislation. However, under the terms of paragraph (b) of the proposed subsection (3) orders which are of a somewhat delicate kind—some people may call them draconian—will be used only in the High Court. The two types of orders that are principally in question are those that the noble Lord, Lord Hacking, mentioned—the Mareva injunction and the Anton Piller order. Neither of those is a particularly defined order. Both describe a group of orders.
Perhaps there are some circumstances in which it would be right for county courts to have power to grant some kinds of Mareva injunctions. The purpose of this clause is to enable us to consider these matters and to define the power of county courts by reference to such considerations. Before any power of this kind were exercised, considerable consultation would have to be carried out. However, these orders are quite difficult to define. To attempt to do so in a primary provision would have the effect that if one got the matter wrong one might create difficulties that would last for a considerable time. The present method of tackling the matter seems to me to give an opportunity for a proper definition and for a proper consideration of the circumstances. In these circumstances I believe that it would be right to leave in what this amendment seeks to take out.
I am aware that Mareva injunctions of a certain kind are quite commonly sought in matrimonial proceedings in county courts. One would have to consider whether it was appropriate to accept matrimonial proceedings if one was making a rule that Mareva injunctions generally were not available. I believe this is an appropriate provision to make in the circumstances.
Obviously one could reconsider the matter in the light of experience and of the development in county court procedures which I hope we shall see under the Bill if and when it takes effect. I hope that in the

941
light of those considerations the noble Lord will feel able to withdraw the amendment.
Lord Hacking: In view of what the noble and learned Lord has said and the assurances that he has given the Committee, I am content at this stage to withdraw the amendment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 32 not moved.]
[Amendment No. 33 had been replaced by Amendment No. 31.]
4 p.m.
The Lord Chancellor The Lord Chancellor moved Amendment No. 34:
Page 5, line 46, leave out ("relief") and insert ("an order").
The noble and learned Lord said: In speaking to Amendment No. 34 I should also like to speak to Amendment No. 35. They are purely drafting amendments turning a reference to "relief given" to a reference to "order made". I believe that that is a drafting improvement. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 35:
Page 5, line 47, leave out ("given") and insert ("made").
The noble and learned Lord said: I have already spoken to the amendment. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 36:
Page 6, line 15, leave out subsection (2).
The noble and learned Lord said: The amendment coincides with one proposed by the noble Lord, Lord Hacking. It removes the repeal of Sections 50 and 51 of the County Courts Act 1984.
When the Bill was prepared I had intended to repeal those enabling powers in view of the new wide powers given to the county court by subsection (1) of the new Section 38. That subsection allows the county courts to make any orders which the High Court may presently make. On reflection, however, I feel that it would be advantageous to preserve separate rule-making powers for the High Court and the county courts so that if necessary the regimes providing provisional damages and interim damages in each forum can differ so as to match the procedures of each. The amendment therefore removes the repeal.
There will be a consequential amendment to the repeal schedule, Schedule 13, to which I shall speak later. I beg to move.
Lord Hacking: I am very happy to join with the noble and learned Lord the Lord Chancellor in what he has just said.
On Question, amendment agreed to.
On Question, Whether Clause 3, as amended, shall stand part of the Bill?
Lord Simon of Glaisdale: The Committee will not wish to depart from the clause without noting once again that it embodies a Henry VIII provision, which
942
appears on page 5, line 4. Moreover, the order making the Henry VIII provision is subject only to negative resolution, as the Committee will see from paragraph 7 on line 13.
From what was said to me after last week's debate I do not believe that those of us who spoke on the Henry VIII clauses made it sufficiently clear what is the constitutional mischief of a Henry VIII clause. That was perhaps because we took as the background the Children Act and the Second Reading of this Bill.
At different times in our history there has been a struggle as to who should have legislative power, the Executive or Parliament. That struggle has surged backwards and forwards at times. Under the Lancastrian kings Parliament made a great advance and was recognised to have the initiative in legislative matters. Then came the high-handed Tudors. Henry VIII took part himself and legislated under the Statute of Proclamations. He could make new laws; he could alter existing law. Therefore it is a matter of very considerable constitutional importance. That power of the Executive was not reasserted for many decades after the Glorious Revolution. With the second surge of bureaucratic advance in the 1920s the Henry VIII provisions, as they were illuminatingly called, came increasingly into our statutes. They were reviewed by the Donoughmore Committee.
I have never taken the categoric view that the Henry VIII provisions should in no circumstances come into our legislation. However, up to and including last Session, I understood that it was accepted that what the Donoughmore Committee said on this matter of great constitutional importance was still recognised. The committee said that Henry VIII clauses should be used only in exceptional circumstances: they should be clearly explained by the Minister in charge of the Bill concerned, who should justify their use to the hilt.
The matter came up again for the first time since Donoughmore in three Bills last Session. Some of us had the opportunity of discussing the matter on what is now the Children Act. Lord Elwyn-Jones took the lead. I understood that my noble and learned friend, who was in charge of the Children Bill, accepted that it could be used only in exceptional circumstances. He hastened to accept an amendment to take out words referring to the repeal of an Act of Parliament on the part of the Executive. He readily accepted what was urged from all parts of your Lordships' Committee and subsequently by the House, that if a Henry VIII provision were included in a statute it should not only be explained but it should be subject to the affirmative resolution procedure so that at that stage too it should be explained to Parliament what was required.
It was suggested in debate that notwithstanding that the Donoughmore recommendations had stood for so many years—from the early 'thirties to the late 'eighties—they must nevertheless be regarded as out of date because of the press of legislation that this Chamber and the other place now have to undertake. That begs the question that was canvassed at Question Time today, whether we really

943
need so much legislation and whether we are not in fact grossly over-governed.
When the matter came up on Clause 1 my noble and learned friend justified it on two grounds. The first was that the subsection in question, subsection (4), did not give any power to make an order. He said that no fewer than four times. He said it in answer to the noble Lord, Lord Renton, saying that the noble Lord was wrong. He said it twice to me, saying that I was incorrect, and he said it again a fourth time to the noble Lord, Lord Mishcon. I do not believe that anybody was convinced by that. The words of the subsection are absolutely plain. Indeed, an order under that subsection can only be made under that subsection and not, as my noble and learned friend asserted, under subsection (1).
My noble and learned friend had a more valid argument; namely, that the Henry VIII provision was consequential. On that ground I believe that it could be justified once it was explained. The same applies here. The provision is consequential on what goes earlier. I should not venture to take a rigid line on the matter, but merely note that it is quite inappropriate that it should be subject only to negative resolution.
The Committee will certainly not wish to leave the clause without noting that for the second time in the Bill—the second time in three clauses—there is a Henry VIII provision. There is another of a far more mischevious character later. I do not oppose the clause being made part of the Bill, but we should note where we are going constitutionally. I ask my noble and learned friend whether we were correct last Session in drawing the inference that he accepts what was said in the Donoughmore Report and that in future its limitations will be observed.
The Lord Chancellor: The situations in which provisions such as those in new Section 38(4)(d) are drawn up vary a great deal. The power in question in the Children Bill was a wide power to deal with the precise provisions that were then being made. This is a different situation altogether. The noble Lords, Lord Prys-Davies and Lord Mishcon, were directly involved as was the late and very respected Lord Elwyn-Jones. He was concerned not so much about the general question as about the possibility that the power in the Children Bill would be used to repeal provisions which he thought of importance.
The situation here is different. We are considering enlargement of the powers of the county court and saying that they should not be allowed to be enlarged completely freely. There should be a possibility of restriction. I sought to explain what that involves. It is perfectly reasonable that in a power of that kind there should be a consequential power to deal with any enactment with which it might be necessary to deal in consequence of the regulations and of the exercise of that power.
I shall not go back over Clause 1(4). As the noble and learned Lord said, I made my position on that clear four times and I remain of the same opinion. This is a very proper clause and I ask noble Lords to pass it.
Lord Rippon of Hexham: I do not want to go back over Clause 1, but I understood from the stand-part debate on that clause that my noble and learned friend was willing to look at the way in which subsections (1) and (4) of that clause had been drafted in order to make the position clear, not least in regard to whether affirmative or negative resolutions were required. I hope that he can now repeat that assurance. We might return on Report to the drafting of Clause 1 and perhaps to that of Clause 82 which deals with the making of orders.
I wish to emphasise how much I support the comments of my noble and learned friend Lord Simon of Glaisdale on the constitutional importance of the Henry VIII clause. Such clauses vary. We tried to make it clear that there were circumstances in which they might be proper. When we consider Clause 1(4) again on Report, one might say that it was necessary to deal only with the jurisdiction of the courts in primary legislation whereas practice or procedure might well be dealt with in the way suggested by my noble and learned friend. Such clauses vary in the mischief that they cause.
It is important that my noble and learned friend gives an answer to the question of my noble and learned friend Lord Simon of Glaisdale: are the Government prepared to accept the primary recommendation of the Donoughmore Committee; namely, that while it did not disapprove of the use of such clauses in all circumstances, it said that they should be severely restricted and should always be explained and justified in the memorandum to the Bill?
4.15 p.m.
The Lord Chancellor: I certainly take the view that the restricted amendment powers which are dealt with here are not in the same category as the open amendment powers which were dealt with and described as a Henry VIII clause in the Children Bill. Many things have happened since Donoughmore reported, including the great development of the powers of the court in judicial review and the right to apply in the exercise of powers the underlying intention of the statute as the court gathers it. I have sought to make it plain in the Bill that that is what we desire to do. The Government certainly take fully into account the Donoughmore Committee's recommendations and I have sought to have regard to them, but, as I said earlier, the circumstances vary according to whether the clauses are in effect Henry VIII clauses.
Lord Simon of Glaisdale: I am much obliged to my noble and learned friend. The exchanges that we have had are important. My noble and learned friend obviously accepts the generality of the Donoughmore recommendations. He says that judicial review is a supervening circumstance, but he did not explain why that should affect the Henry VIII clause. I cannot see that it does so in any way.
The question is quite simple: who legislates? Is Parliament to be short-circuited and the Executive given the power to legislate? My noble and learned friend is right to differentiate between the two classes of case. One was a clear breach of the spirit of

945
Donoughmore in the Children Act and one is bound to ask how the provision came into the Act. What kind of supervision of legislation is there nowadays if that can occur? My noble and learned friend is right to say that, where a provision is consequential, it may be justified as long as it is shown to be justifiable. I do not quarrel with that. I do not quarrel with consequential provisions of that kind, but we shall shortly find a far more heinous provision of the Henry VIII character in the Bill.
Lord Coleraine: Before we leave Clause 3, perhaps I may raise one small drafting point. I wish to ask my noble and learned friend whether it is appropriate in new Section 38(4) of the County Courts Act to refer to what regulations under subsection (3) may provide when subsection (3) does not appear to be a regulation-making subsection.
The Lord Chancellor: Subsection (3) is a regulation-making subsection because it contains the power to prescribe the order. Subsection (4) is intended to deal with the conditions of the prescription that may be made in relation to the orders.
Lord Coleraine: Is my noble and learned friend saying that, if the county court does not have power to make orders of a prescribed kind—we are talking about orders, not regulations—the regulation gives him the right to prescribe the orders which the county court may not make?
The Lord Chancellor: The aim of the regulation-making power is to enable the nature of the order that the county court should not have power to grant to be prescribed.
Clause 3, as amended, agreed to.
Lord Mishcon Lord Mishcon moved Amendment No. 36A:
After Clause 3, insert the following new clause:
("Appeals
.—(1) An applicant may appeal to the county court against any decision made by a local housing authority which is or should be notified to the applicant under s. 64 of the Housing Act 1985.
(2) An appeal under subsection (1) above shall require leave of the county court, which leave shall be granted only if the county court is satisfied that there are reasonable grounds for believing that the decision appealed against is wrong").
The noble Lord said: Perhaps the Committee will indulge me in making a rather longer speech than I normally do in support of this amendment. It deals with the least privileged of our fellow citizens and urges a reform which was discussed on the first day of Committee when we considered the question of judicial review in this connection. I would remind Members of the Committee that one is dealing with a provision of the Housing Act 1985 which imposes a duty on local housing authorities to provide accommodation for homeless people with a priority need provided that they are not intentionally homeless. The priority category includes families with children and the pregnant, elderly or mentally ill.
In regard to most, indeed all, of the major provisions which deal with the question of welfare,
946
the Committee will find in our legislation that an appeal procedure is provided for. In this connection there is no appeal provision at all. The history is as follows. Until 1983 the people representing the homeless who felt aggrieved by a wrong decision of the local authority could go to the county court and obtain a declaration from it that the determination of the local authority was wrong. That power of the court to make such a declaration was questioned in the case of Cox v. Thanet. It was there held that the only available remedy was a judicial review. On the last occasion when we dealt with this matter the noble and learned Lord said very fairly that the whole question of appeals and judicial review had been noted in the Civil Justice Review. Possibly neither he nor the Committee will mind if I quote exactly what the Civil Justice Review said at page 141, paragraph 750:
"A significant number of respondents pressed for the creation of a cheap, accessible local method for challenging local authority decisions in cases involving homelessness. Preference was expressed for a right of appeal to a County Court in such cases rather than applications to the High Court for judicial review, the latter being seen as a complex, lengthy and expensive method by which to obtain reconsideration of a decision which needed, of its nature, to take place with the utmost urgency.
The Review Body noted the concern expressed by respondents, including the Law Society, the Law Centres Federation, NACAB, the National Consumer Council, Shelter (the London Housing Aid Centre) and the Royal Institution of Chartered Surveyors. A formal recommendation to change the system would have involved an investigation of the substantive law of homelessness and the process of judicial review, neither of which was in the scope of the Review".
Perhaps I may say that a nod was as good as a wink. The Civil Justice Review was saying—I hope that the Committee think I am fair in my paraphrase—"One ought to look at this urgent social matter and the right of appeal. Within our terms of reference we cannot make a recommendation but we have thought it important enough to draw the attention of the community to this social need."
When we looked at the question of judicial review on the last occasion that we dealt with this matter it was on the basis of giving the county court jurisdiction to listen to judicial review cases which dealt with homelessness and certain other related social problems. When he dealt with that submission the noble and learned Lord felt that judicial review was not at all the job of the county court. I shall not go into those arguments. They were redoubtable, as are most of the arguments advanced by the noble and learned Lord. In the end we had to concede that the proper procedure in this case was not a judicial review in the county court but might well be a question of an appeal to the county court.
To use again the expression "a nod is as good as a wink", I thought—and other Members of the Committee might similarly feel—that I was entitled to take the words used by the noble and learned Lord on that occasion as an intimation that at all events the question of giving the county court such a jurisdiction, and indeed giving the homeless people that kind of right, was in his mind and, if I may use an expression that has been used today before, favourably in his mind.
We have now come forward with this amendment. The noble and learned Lord thought that there ought

947
to be some kind of clear indication as to where the right of appeal should be exercised in the county court. I believe that this amendment has succeeded in doing that because, as the Committee will see, subsection (2) of the amendment states:
"An appeal under subsection (1) above shall require leave of the county court,"—
so that there is not the question of a queue of hopeless and ridiculous cases coming to the county court—
"which leave shall be granted only if the county court is satisfied that there are reasonable grounds for believing that the decision appealed against is wrong".
For those Members of the Committee who may not be as familiar with the atmosphere of the county court as possibly I am, let me give a picture of the county court in such a matter, were such a right to be given. In a completely informal way the homeless person would explain himself or through a representative to the judge why the appeal was urgent and why the county court should hear it. I am sure that the learned judge in an equally informal way would ascertain from that person why the decision of the local authority was being challenged. On seeing that there was a strong prima facie case, if I may put it that way, leave would be granted and the matter would be heard. As in so many cases where leave is dealt with, it may very well be that because of the urgency the whole of the matter would be dealt with on the application for leave.
This is something which was supported by all parts of the Chamber on the last occasion. It is a pleasure to find with my name on this amendment the names of the noble Lords, Lord Renton, Lord Meston and Lord Hacking. Members from all sides of the Committee are with me on this amendment. We now have an opportunity to do something for the very least privileged of our citizens. I am sure that my words, however inadequate, will fall upon fertile ground when the noble and learned Lord comes to answer. I beg to move.
4.30 p.m.
Lord Renton: I too hope that my noble and learned friend the Lord Chancellor will regard the amendment with great sympathy. The noble Lord, Lord Mishcon, said in moving it that he was necessarily going to have to do so pretty fully. Therefore there is no need for me to repeat his arguments, which I entirely support. I would simply add the following.
A clear case is made out in injustice occurring to people who are homeless and for whom Parliament has made other provision in order to overcome their problem; but, as the noble Lord, Lord Mishcon, has pointed out, there is a gap in our legislative arrangements because there is no right or opportunity of appeal from the decision of the housing committee, which may have been taken very hurriedly and perhaps at a low level. Surely it is right that when we have the Bill before us we should use the opportunity to fill that gap, more especially as in doing so we shall be increasing the jurisdiction of the county court, which is the broad purpose of the whole of Part I.
948
I think we should be failing were we not to deal with the suffering of the homeless in the ways that the noble Lord, Lord Mishcon, has mentioned.
Lord Morris: One aspect of the amendment concerns me slightly; as the amendment is drafted, if an applicant seeks leave from the county court to appeal against the decision that had been made by the local housing authority by virtue of Section 64 of the Housing Act 1985, the court is required to be—I quote from subsection (2)—
"satisfied that there are reasonable grounds for believing that the decision appealed against is wrong".
Surely that asks the county court to consider the facts upon which the original hearing came to the decision that it did. That could create a can of worms whereby the request for leave to appeal would mean consideration of the facts before the court of first instance. I put that in as a consideration.
Lord Alexander of Weedon: I should like to support the amendment. When there is consideration of whether somebody should be housed by a local authority a fundamental right is being adjudicated upon. Those against whom the decisions may go are those who are possibly least equipped to employ the machinery—even though in some ways it is a swift machinery—of seeking judicial review in the High Court. As we are increasingly learning, many of them are psychiatrically ill and have been released from psychiatric homes. Therefore, being mentally ill, they come within the category of those who fall for consideration of housing, as the noble Lord, Lord Mishcon, described. I believe that we should supply that category of our citizens with a cheap and effective access to the courts.
With regard to the point made by my noble friend Lord Morris, as I understand it the purport of subsection (2) is to ensure the there is, as in some areas of the law, a preliminary filter which will ensure that the court is not clogged up by hopeless or frivolous cases. In my experience in other areas, this can be operated effectively and well. It can lead to speedier justice where it is used with good sense by lawyers, if there are lawyers, or other representatives of the parties concerned, and with the co-operation of the court. Therefore, I do not see subsection (2) as an obstacle to what I would urge upon your Lordships as an important and beneficial addition to the range of remedies in the county court.
Viscount Bledisloe: I should like to inquire of those moving the amendment whether they are perhaps not inadvertently making a change in the substantive rather than the procedural law. As I understand it—and I do not understand it—the procedure at present is that one can challenge such decisions only by judicial review. That means that one cannot challenge the merits of the decision; one can only say that procedurally it has gone wrong or that no reasonable housing committee could have come to the decision in question.
Here it is sought to substitute an appeal to the county court. Normally when one has an appeal to the county court, or to any court, within certain limits that court substitutes its own discretion or its

949
own decision for the decision of the body below. I appreciate that in subsection (2) leave is granted for the appeal to be heard only if the county court is satisfied that there are reasonable grounds for perceiving that the decision is wrong. That may be nearly a judicial review test, but once that leave is given is it not the case that the county court is then embarking on a perfectly straight appeal and in effect substituting its own decision for that of the housing committee? Therefore, is one not giving a much wider ground of appeal than exists at present rather than merely allowing matters to be dealt with cheaply and conveniently in the county court?
The Lord Chancellor: Although that question is directed against those who moved and supported the amendment, perhaps I may be allowed to have the first shot at answering it. The answer is undoubtedly yes; it is an attempt to change the basis on which the local authorities proceed.
The noble Lord, Lord Mishcon, kindly read out recommendations from the Civil Justice Review. There was no recommendation on this point. One of the reasons for that was that it was considered that any adjudication on the matter would require a consideration of the substantive law.
The Government have recently published the findings of a careful and lengthy review of the homelessness legislation which included consideration of right of appeal. The Government concluded that no changes to the legislation were necessary; that it provided an adequate safety net for those in priority need, homeless through no fault of their own. However, following the review, the Government are anxious that the legislation shall, in future, be administered in a quicker, fairer and more consistent manner. The Government propose to issue a new code of guidance to local authorities in connection with homelessness provisions, and a draft of that new code will shortly be issued for consultation.
Reference was made to the Children Act in earlier exchanges. One of the matters dealt with in the Children Act, with help from your Lordships and particularly from noble Lords on the Front Bench opposite, was to develop the procedure in local authorities for review by them of their own decisions in relation to children in care. It appears to me that the best method of dealing with that sort of case is by a review mechanism within the local authority itself.
My noble friend Lord Renton indicated that decisions may be taken hurriedly and at a low level. One of the features that has come out of the review is that in about 30 per cent. of authorities there is an internal appeal system in order that the matter may be reviewed within the authority at an appropriately high level. I believe that the right way forward is to encourage the other 70 per cent. of local authorities which do not have such a mechanism to introduce one. I believe that the proper method of dealing with this question is for it to be in the hands of the locally elected representatives. It is a delicate matter to interfere with a local authority's decision in an area of this kind.
950
In relation to the review of homelessness legislation, the Association of District Councils said that any formal right of appeal to a third party would only hinder the processing of applications and make a call on already limited resources. It thought it important that applicants should feel that procedures were fair and had been adhered to. It therefore encouraged districts—they are the principal housing authorities generally—to set up internal appeals procedures for homeless applicants. Another representation also favoured setting up an internal appeal system for dealing with complaints brought by homeless applicants. Within the next month or so the Government hope to consult with local authorities in respect of a new code of guidance dealing with the matter.
The Civil Justice Review body appreciated that the matter was appropriately to be dealt with in connection with a review of the substantive law of homelessness with which the Bill is not concerned. The total number of applications turned down by local authorities in 1988—the last year for which we have a complete figure—was more than 120,000. I said recently that the total number of county court trials was approximately 10,000; so we are dealing with a high volume of business.
A filter mechanism has been included but, as the noble Lord, Lord Mishcon, pointed out, to appreciate properly whether it would work in such circumstances one would require to know the facts of the case. It is hard to see that in such a case the leave provision would make much difference from the substantive hearing. There are other cases in which the situation is different and no doubt we shall discuss them later. However, in this type of case it is essentially a matter of fact that is in issue.
Therefore, I believe that there is at least a risk that, instead of helping applicants who require an urgent decision (I understand that, according to the revised code of guidance, my colleagues in the Department of the Environment will be advising that all applications should be dealt with within 30 days) the threat of an appeal provision could mean that the local authority would find it necessary to take up longer and more detailed inquiries which would tell against the interests of the applicants.
Naturally one is sympathetic towards our fellow citizens in particular difficulties. However, giving a right of appeal to the county court, without prescription of the grounds of appeal or the way in which they should be considered, is not necessarily to help them. A better way forward is to seek to improve the local authorities' internal machinery for dealing with such matters and not to seek to introduce in the county courts a new and novel load of this kind, particularly at this juncture when we are seeking to ask them to carry out more work of a different character.
Lord Renton: Before my noble and learned friend sits down, can he elaborate on an important point that he made? It concerns the internal appeal within the local authorities. The Government's homelessness review was published in December. It contains no suggestion or indication of any discussion concerning the right of appeal in such

951
cases. As regards the internal right of appeal to which my noble and learned friend has referred—it is presumably informal and not obligatory—can he say when it started, how far has it gone and what is his opinion of the likelihood of it becoming general?
The Lord Chancellor: As I have already said, at present 30 per cent. of authorities have an internal appeals procedure. Under their powers to issue a statutory code of guidance my colleagues in the Department of the Environment wish to recommend the procedure to the other authorities so that they also will embrace that best practice. I submit to the Committee that at this juncture, and in the present state of knowledge, that is the right way forward.
Baroness Faithfull: I wish to ask my noble and learned friend to clarify one matter. When dealing with the Children Bill we requested that the appeal procedure should lie in the chief executive's department and not in the department involved which was the social services department. If, in this case, there is an appeals procedure, will it lie with the chief executive and not with the housing department?
The Lord Chancellor: That is a matter for the local authorities. I have discussed it briefly with those who know more about it. I have been told that in some cases the intimated decision is called into question and is then referred to the chairman of the housing committee as the elected officer with responsibility. He reviews the cases. In some he grants the application; in others he does not. Therefore, the point about low level is taken up. I do not know whether that is the uniform method. Perhaps it is right that elected representatives at a senior level should take the responsibility. I know that that is one method of dealing with the matter. There may be others.
Lord Hooson: I know that my noble friend Lord Meston, for whom I have the greatest regard, signed the amendment, but I have always had doubts about it. I have always believed that the view of the Association of District Councils was correct. I found the comments of the noble and learned Lord the Lord Chancellor most convincing on that point.
I believe it is essential that decisions made under Section 64 should be reached speedily, as should the final decision. I believe that if we adopted the amendment we should be following the wrong route. Furthermore, the volume of cases available—that is, 120,000—is a practical reason against the amendment because experience shows the kind of applications that will be made.
4.45 p.m.
Lord Mishcon: I hope that Members of the Committee will not think it too dramatic if I say that an opportunity has been lost. How different is the reply given today by the noble and learned Lord from the speech that he made on the first day of Committee. Referring to the Civil Justice Review he said:
952
"At paragraph 120 it stated that all public law cases should be reserved to the High Court. On the other hand, the review body referred to the problem of a local method of challenging local authority decisions in that area. However, it was thinking primarily by way of appeal. Although it did not go into the matter in great detail, it is plain that the primary option was for an appeal. No doubt an appeal provision could indicate the criteria which the Appeal Court would have in mind and would not leave the issue open as is the case in respect of judicial review".—[Official Report, 16/1/90; col. 587.]
What does that mean unless the following: first, that the bent of the Civil Justice Review was that it should be by way of an appeal to the county court; secondly, that the noble and learned Lord did not find such a suggestion unfavourable; and thirdly, that he hoped that when such a proposal came forward it would indicate the criteria which an appeal court such as the county court would have in mind and,
"would not leave the issue open as is the case in respect of judicial review"?
I wonder what has happened since last week to cause the noble and learned Lord to have a completely different idea about what the Civil Justice Review may have had in mind and how practical he felt the right of appeal to be.
I should not be emphasising those points if it were not that the noble and learned Lord's alternative fills me with apprehension. I mentioned—and this is not controverted—that this is the only type of important welfare provision we make where there is no right of appeal. A right of appeal usually means an appeal to a body other than the one which made the decision. If it is a decision which is queried within that body, it is usually called a right of review.
That was the position until 1983 when it was found by pure chance, if I may put it that way, on a legal decision that the county courts which had previously entertained these matters on an application for a declaration did not have that jurisdiction and that it should only be a question of judicial review. As a rule, those cases went on the basis that the local authority had misdirected itself in law. There were some decisions which said, "On construing the statute as we do, we do not regard this as a priority case", or, "We do not regard this as meaning that the homeless person has not brought his own homelessness upon himself. On prima facie consideration we believe that that is wrong. Therefore, the homeless person has no right to this preferential treatment". It has also been found that many local authorities differed in their interpretation of the statute.
It is not sufficient to say that at some date in the future there may be some sort of review procedure by an executive in the local authority. We have the chance here and now to put that matter right. We can give the county court that jurisdiction with the right, as the noble Lord, Lord Alexander, very helpfully pointed out, of seeing that the queues are not too many, certainly in regard to hopeless cases, by the matter being quickly looked at by the judge when he gave leave or refused leave. On the last occasion when the noble and learned Lord turned down judicial review in the county court, I thought he was openly saying to everybody that what is needed here is an appeal procedure to the county

953
court and that he would look favourably on that. Therefore, we brought forward this amendment with all-party support. If the noble and learned Lord cannot change the tune which he played today—and I say that with all deference—then I should ask which tune the Committee wishes to play.
The Lord Chancellor: My position today is entirely consistent with what I said on the last occasion. I was then dealing with what the Civil Justice Review appeared to have in mind. However, that said quite plainly that before anything of that sort could be dealt with, there would have to be a substantive review of the law on homelessness. As regards the position I take today, that is consistent with what I said last time and I am not in a position to change it.
Lord Mishcon: I appreciate the courtesy of the noble and learned Lord. I wish to see whether there is a sympathetic symphony which will now be played by the Committee.
5.33 p.m.
On Question, Whether the said amendment (No. 36A) shall be agreed to?
Their Lordships divided: Contents, 73; Not-Contents,159.

DIVISION NO. 1

CONTENTS

Airedale, L.

Kilbracken, L.

Alexander of Weedon, L.

Kirkhill, L.

Amherst, E.

Listowel, E.

Ardwick, L.

Longford, E.

Blease, L.

Lovell-Davis, L.

Bonham-Carter, L.

Marsh, L.

Bottomley, L.

Mason of Barnsley, L.

Brooks of Tremorfa, L.

Meston, L. [Teller.]

Bruce of Donington, L.

Milverton, L.

Byron, L.

Mishcon, L.

Callaghan of Cardiff, L.

Molloy, L.

Carmichael of Kelvingrove, L.

Murray of Epping Forest, L.

Nicol, B.

Cawley, L.

Oram, L.

Cledwyn of Penrhos, L.

Parry, L.

Cocks of Hartcliffe, L.

Phillips, B.

David, B.

Pitt of Hampstead, L.

Donaldson of Kingsbridge, L.

Ponsonby of Shulbrede, L. [Teller.]

Dormand of Easington, L.

Ennals, L.

Prys-Davies, L.

Evans of Claughton, L.

Renton, L.

Ewart-Biggs, B.

Rippon of Hexham, L.

Falkland, V.

Seebohm, L.

Gallacher, L.

Sefton of Garston, L.

Galpern, L.

Simon of Glaisdale, L.

Gladwyn, L.

Stoddart of Swindon, L.

Glenamara, L.

Taylor of Blackburn, L.

Graham of Edmonton, L.

Thurlow, L.

Gregson, L.

Turner of Camden, B.

Grey, E.

White, B.

Hacking, L.

Williams of Elvel, L.

Harvington, L.

Willis, L.

Hughes, L.

Winchilsea and Nottingham, E.

Hunt, L.

Hutchinson of Lullington, L.

Winstanley, L.

Jay, L.

Winterbottom, L.

Jenkins of Putney, L.

Wynford, L.

John-Mackie, L.

NOT-CONTENTS

Abinger, L.

Alexander of Tunis, E.

Ackner, L.

Allen of Abbeydale, L.

Ailsa, M.

Allerton, L.

954

Ampthill, L.

Killearn, L.

Annaly, L.

Kilmarnock, L.

Atholl, D.

Kitchener, E.

Attlee, E.

Lane, L.

Aylestone, L.

Lauderdale, E.

Belhaven and Stenton, L.

Layton, L.

Belstead, L.

Lloyd of Hampstead, L.

Blatch, B.

Long, V.

Bledisloe, V.

Lyell, L.

Blyth, L.

Mackay of Clashfern, L.

Bolton, L.

Mackie of Benshie, L.

Boyd-Carpenter, L.

Manton, L.

Brain, L.

Margadale, L.

Bridge of Harwich, L.

Marshall of Leeds, L.

Broadbridge, L.

Melville, V.

Brookes, L.

Merrivale, L.

Brougham and Vaux, L.

Mersey, V.

Butterworth, L.

Middleton, L.

Caithness, E.

Monteagle of Brandon, L.

Campbell of Alloway, L.

Montgomery of Alamein, V.

Campbell of Croy, L.

Morris, L.

Carnegy of Lour, B.

Mountevans, L.

Carnock, L.

Mountgarret, V.

Clanwilliam, E.

Munster, E.

Coleraine, L.

Nelson, E.

Colnbrook, L.

Nelson of Stafford, L.

Cottesloe, L.

Newall, L.

Cowley, E.

Nugent of Guildford, L.

Darcy (de Knayth), B.

Orkney, E.

Davidson, V. [Teller.]

Orr-Ewing, L.

Denham, L. [Teller.]

Oxfuird, V.

Diamond, L.

Pender, L.

Dilhorne, V.

Peyton of Yeovil, L.

Donaldson of Lymington, L.

Platt of Writtle, B.

Downshire, M.

Portsmouth, E.

Eden of Winton, L.

Pym, L.

Elibank, L.

Quinton, L.

Ellenborough, L.

Rankeillour, L.

Elles, B.

Reay, L.

Elliott of Morpeth, L.

Rees, L.

Erroll of Hale, L.

Renwick, L.

Faithfull, B.

Romney, E.

Fanshawe of Richmond, L.

Roskill, L.

Ferrers, E.

Sainsbury, L.

Fisher, L.

St. Davids, V.

Fraser of Kilmorack, L.

Saint Oswald, L.

Gainford, L.

Saltoun of Abernethy, Ly.

Gardner of Parkes, B.

Sanderson of Bowden, L.

Geddes, L.

Selkirk, E.

Gisborough, L.

Shaughnessy, L.

Goodman, L.

Skelmersdale, L.

Goold, L.

Somers, L.

Grantchester, L.

Somerset, D.

Gray of Contin, L.

Stedman, B.

Gridley, L.

Stodart of Leaston, L.

Griffiths, L.

Strange, B.

Grimston of Westbury, L.

Strathcarron, L.

Hailsham of Saint Marylebone, L.

Strathclyde, L.

Strathcona and Mount Royal, L.

Halsbury, E.

Hanworth, V.

Strathmore and Kinghorne, E.

Harmar-Nicholls, L.

Havers, L.

Swansea, L.

Hayter, L.

Taylor of Gryfe, L.

Henderson of Brompton, L.

Terrington, L.

Henley, L.

Teviot, L.

Hesketh, L.

Teynham, L.

Hives, L.

Thomas of Gwydir, L.

Home of the Hirsel, L.

Tranmire, L.

Hood, V.

Trefgarne, L.

Hooper, B.

Trumpington, B.

Hooson, L.

Tryon, L.

Hylton-Foster, B.

Ullswater, V.

Ilchester, E.

Walston, L.

Ingrow, L.

Whitelaw, V.

Johnston of Rockport, L.

Wise, L.

Joseph, L.

Young, B.

Kaberry of Adel, L.

Resolved in the negative, and amendment disagreed to accordingly.
Clause 4 [Costs]:
5.1 p.m.
The Deputy Chairman of Committees (Lord Nugent of Guildford): Amendment No. 37 pre-empts Amendment No. 38. However, it appears that it may be convenient for the noble Lord to take the two amendments together.
Lord Mishcon Lord Mishcon moved Amendment No. 37:
Page 6, line 41, leave out paragraphs (c) and (d) and insert —
("(c) he has provided financial support to a plaintiff who has commenced or continued proceedings in the outcome of which he has no substantial interest.").
The noble Lord said: If Members of the Committee will be good enough to look at Clause 4(4) of the Bill they will see that there is provision for the circumstances in which the court may make an award of costs against a party. Those circumstances are:

"(a) he is a party to the proceedings;

(b) he is the legal representative of such a party;

(c) he has supported the bringing of the proceedings, whether or not financially".

It is paragraph (c) to which this amendment is directed. I fail to understand in a statute what the words "whether or not financially" really mean in the context of a party supporting the bringing of proceedings.
For example, if I know a plaintiff and say to that plaintiff, "I am absolutely delighted; I understand you are issuing a writ tomorrow for libel against the Daily Whatsit. You certainly have my support. Good luck". In those circumstances is that somebody who has supported the bringing of proceedings "whether or not financially", on the basis of course that I have not helped the proposed plaintiff financially at all? To have such vague words in a statute struck me, if I may say so with due respect, as being quite remarkable. In order therefore to give some positive nature to the provision the amendment reads that,
"(c) he has provided financial support to a plaintiff who has commenced or continued proceedings in the outcome of which he has no substantial interest".
I am speaking, as was indicated, not only to Amendment No. 37, but also to Amendment No. 38. I beg to move.
Lord Simon of Glaisdale: I wish to speak only to the second of the amendments. Paragraph (d) reads:
"he has an interest in the outcome of the proceedings".
Perhaps I may put a case to my noble and learned friend which is very frequent in probate and other proceedings. Take the case of an executor propounding a will. A later lost will is discovered and brought in by way of counterclaim generally. The beneficiary or executor under the lost will will want to bind by the judgment everybody interested under any earlier will or indeed under an intestacy; otherwise he may find a series of actions against the new-found will. What he does is to cite all those people to seek proceedings. They are not parties to the proceedings. They have an interest in them. If they want to intervene they can and then become parties. If they do not do so I cannot for myself see why they should be liable in costs.
956
The theory of costs in our legal system, although it is now largely in the rules, was worked out by the judges on the basis of justice; that no one should be prejudiced by having to bring an action as to which he has a right to succeed.
If I borrow £20 from my noble and learned friend, promising to repay it after a year and if after a year he asks for it back, I am bound to give it back to him. If I toss him into an expensive or even inexpensive law suit in order for him to get back his £20, he ought not to find himself to any extent out of pocket because I have disputed and contested his right to recover his debt. That is so with every type of case.
If a third party is merely cited to seek proceedings because has has an interest but has not intervened to make it more expensive for the citing party, why, in justice, should he be liable in costs? I should be grateful if my noble and learned friend would consider that type of case.
Lord Wilberforce: Perhaps I may raise another point before the noble and learned Lord replies. In principle the amendment seems very reasonable, but I should like to ask the mover of it why it should not apply equally to defendants. Why does this apply only to plaintiffs?
There may be some point I have overlooked, but there are cases—and everyone will know the recent one—in which a defendant is supported by someone who has no financial interest in the case. It would seem right in that sort of case to give power to the court—it does not have to exercise it—to make an order for costs against such a person. I suggest that that point ought to be considered.
The Lord Chancellor: So far as concerns the Supreme Court, the wording of the law has until now in general terms given the court discretion to award costs against anyone. The court is left to exercise that discretion.
Over the years the courts found it very difficult to believe that anyone could be saddled with costs. For example, if a passer-by were to be taken in and told, "You will pay the costs of the proceedings," it would be said that Parliament did not intend that. That would be right; Parliament did not intend that. But it intended the court to exercise discretion. It no doubt trusted the court to exercise its discretion in such a way that a passer-by would not be saddled with the costs of proceedings in which he had no interest.
However, it developed the implications in such a way that in the Aiden Shipping case it was found very difficult to do justice under the implied conditions that the court had put forward. It was a case in which arbitrations were back to back. A and B were arbitrating, and B and C were arbitrating. It was in A's interest that the dispute between B and C should be dealt with in a particular way and B was required in effect to react to the actions of A. But A was not a party to the dispute between B and C.
Mr. Justice Hirst was faced with the conundrum late on a Friday afternoon. He thought that common sense suggested in that case that although A was not

957
a party, A should be obliged to deal with the costs. The result has been a review of the development of the law of costs. We have sought to try to cover all the possible cases that have been illustrated in the authorities, but not in a positive way.
My answer to my noble and learned friend Lord Simon of Glaisdale, is that the conditions specified here are conditions that must be satisfied if an award is made. Those are necessary conditions for the making of an award; they are not sufficient conditions. The court must decide whether or not to make such an award.
With regard to the last illustration of my noble and learned friend of lending me £20 —
Lord Simon of Glaisdale: It was the other way round.
The Lord Chancellor: —if, quite contrary to his normal character, at the end of the year he refused to repay and I took action, I would be a party to the proceedings and therefore the court could make me liable as a party to the proceedings. However, I hope that in that case I would not be made liable.
This provision is to apply in the county court at all levels. We are trying to give guidance about the kind of people who should be considered. It is not saying that the courts should grant —for example, in the case of the disputed will —costs against those who did not appear to dispute the will even if the party bringing the counter-claim in that case wanted to bind them. But the court would have a discretion. All these costs shall be in the discretion of the court. We have sought in the light of the development to indicate the classes of people against whom the court might make an award of costs without leaving it as open as the very early legislation did.
Lord Mishcon: Before the noble and learned Lord continues, the argument could be shortened if both parties agreed as to what was being said. As I understood the noble and learned Lord, he talked in terms of this being guidance. Is he aware that subsection (4) reads:
"The court may only make an award of costs"?
The Lord Chancellor: Indeed; and I am saying that it is a necessary condition that it should be satisfied, but not a sufficient condition. The court has a discretion as to whether or not to award costs against people answering this description. There is no discretion to award costs against people answering any other description. That is the purpose of the provision. The mere fact that a person is covered by that list does not mean that the court will make an award against him. That is the point. It is a restriction of the people against whom an award may be made in order to provide clear guidance to all the classes of cases of which I know in which such an award has been considered.
5.15 p.m.
Lord Roskill: Will the noble and learned Lord the Lord Chancellor allow me to raise two matters resulting from what he has said? Those of us who have in the past tried personal injury cases —my
958
noble and learned friend Lord Griffiths has much longer experience of that than I have —know that at the end of an injury case where a defendant is successful the defendant's counsel will rise and say to the judge, "My Lord, I ask for costs". The trial judge then looks at counsel for the plaintiff, who says either, "My Lord, it is legally aided," or, "It is a trade union case". In the former case there would be no order for costs. In the latter case, in my experience, the trade union invariably pays the costs. But I have never heard of any order being made against the trade union.
The other case that occurs to me off the cuff is this. Sitting in the Commercial Court, one has two different types of cases. The first is an ordinary shipowner charterer case. The shipowner is supported by his P&I club, or his defence club. The defendant may equally be supported by his P&I club or cargo underwriters may be exercising rights of subrogation. In any of those cases the Pamp;I club, the defence club and the cargo underwriter are supporting the claim. I can only say that I have never heard —and so far as I know nobody else has —of any order for costs being made directly against the P&I club, a defence club or cargo underwriters.
The noble and learned Lord suggests that it is merely an empowering provision. But, with great respect, it surely goes against the principle that somebody who is only in the background should even be able, under rule of court or otherwise, to be made liable for costs.
Lord Simon of Glaisdale: I read the Aiden Shipping case with great interest and entire agreement. I notice that my noble and learned friend was a member of the Appellate Committee. However, he has not answered the case that I put to him of the party cited in C proceedings. Why should a person, merely because he has an interest in the proceedings, who has in no way put the other party to costs be even within the reach of a costs order? That is the point that I understood the noble Lord, Lord Mishcon, was making. It seems to me to be a valid one.
Lord Prys-Davies: In support of my noble friend, perhaps I may say that I also have read the shipping case. The decision was taken at 5.45 in the evening. Can the noble and learned Lord the Lord Chancellor tell us exactly what interests are covered by Clause (4) (d)? The term is extremely wide. It could cover a social, moral, financial or legal interest. Can the noble and learned Lord explain what interest one has in mind?
It may very properly be said in support of paragraphs (c) and (d) that we can rely on the courts to exercise this jurisdiction with reason and with justice. I am sure that in the vast majority of cases that would be the position. However, if and when problems arise it will be claimed that these two paragraphs have expressed the jurisdiction in very wide terms without any limitations. That causes us considerable concern.
The Lord Chancellor: It is necessary to review the provision against the background of the existing law. Section 51 of the Supreme Court Act 1981 states:

959
"Subject to the provisions of this or any other Act and to rules of court, the costs of and incidental to all proceedings in the civil division of the Court of Appeal and in the High Court, including the administration of estates and trusts, shall be in the discretion of the court, and the court shall have full power to determine by whom and to what extent the costs are to be paid".
That is a completely open power. We are proposing that this section should now be used in the county court as well as in the High Court. I believe that it is desirable to indicate at least in broad terms the limits of that power. That is the purpose of the clause. But we are not in any sense saying that the power should be exercised.
My noble and learned friend Lord Roskill gave an example. If someone who has mastery or control over a litigation puts up as a person to run the litigation as the nominal plaintiff someone without funds, the court certainly has power —I could find some instances where it was exercised —to impose an order against the person referred to as the dominus litus in the litigation for the costs incurred in it by the unsuccessful defendant. I am not suggesting that this is more than a limitation of the generality which has previously existed in order that there should be no question of these restrictions being brought into account.
I certainly do not believe that it is necessary or wise to limit to financial support the support of the bringing of proceedings but the court would be very slow to make an order against someone who did not support the proceedings financially unless there was a good reason for doing so. This provision is a good deal narrower than the present legislation. The purpose is to lay these considerations before the court. It is of particular importance in the county court, because this will be the basis of the cost regime, where at the moment these matters are regulated primarily by rules of court.
Lord Mishcon: I say with deep respect that the noble and learned Lord might have been wiser merely to give the same wide discretion to the county court judges to make orders as to costs without limiting in this rather misleading way their powers in regard to orders against certain parties. We should have enough faith in the county court judges to give them an absolute discretion without telling them that they may only award costs against various people.
In regard to my amendment, the noble and learned Lord has given no example of what he would regard as support other than financial. Does the fact of someone saying, "I am glad that you have brought these proceedings. I shall turn up in court and back you and support you all I can", give a hint to the judge that he might make an award of costs against that person if it came out in evidence?
The noble and learned Lord, Lord Wilberforce, asked about the defendant. In looking at the provision in subsection (4) I took it for granted —I thought I understood the reason for it —that the only person against whom the court could make an award of costs in regard to support was someone who supported the bringing of proceedings or the continuance of them, which must mean the plaintiff. Anyone who said, "I am going to help you to defend
960
this action because it is meritorious that you should defend it. It is an outrage that the plaintiff brought it against you", would not be subject to the court's discretion in regard to an order.
I have made it sufficiently clear that I think it would be wiser not to have his provision and to leave the matter to the court's discretion. However, if we are to include a provision, my amendment is necessary in order to limit it to financial support. I repeat that the noble and learned Lord, who most courteously answered this argument, has not given one example of what support would be covered by the words "whether or not financially". I do not know whether he cares to do so now.
The Lord Chancellor: There are a number of possibilities. One example is somebody who is prepared to give evidence in support of a case where that person is not acting in bona fide. I am not suggesting for a minute that the court would do more than have power to consider these matters. I do not see why the only support that should be considered is financial support. Sometimes bodies support a test case without actually giving financial support. It might be that the way the case was conducted and the nature of the costs incurred were affected by that support.
All I have sought to do is to analyse the cases and try to offer guidance of the kind that I mentioned, which is restricting the power to the cases cited in this situation. If the noble Lord thinks that it would be better to leave matters as they are, the result would be to leave a completely open discretion. I can certainly see that. I thought that we were being helpful in laying down in as much detail as we could the types of case in which the court might consider making an order without unduly restricting its discretion. The court's discretion is the ultimate buttress of justice in this matter. None of the examples that have been given appears to me to throw doubt on our proposed provisions.
Lord Ackner: On the face of it there is a completely open discretion, but decisions have shown the principles upon which that discretion should be exercised. Therefore to widen the apparent discretion by references as vague as this can only lead to confusion, and confusion when one is trying to simplify matters in courts that are to receive a large impact of extra work cannot be an advantage.
Lord Hailsham of Saint Marylebone: I should like to associate myself with the remarks of the noble and learned Lord, Lord Ackner. The rules relating to costs are fairly well understood by the profession and by the judiciary. To alter them in this way in a part of the Bill primarily concerned with transfers between the High Court and the county court is an imprudence and might lead to a good deal of confusion. Does my noble and learned friend consider it wise to include this clause in the Bill?
The Lord Chancellor: I am perfectly content to consider whether we should have subsection (4), which attempts a classification in the light of Aiden and subsequent cases. If my noble and learned friends

961
believe that it imports confusion instead of help, that is the last thing I want to do. I am perfectly content to consider whether subsection (4) should be included. I would not be content to leave it in and leave out "whether or not financially".
Lord Mishcon: I am glad that we have had this debate. It has been extremely useful, as have the remarks of the noble and learned Lords, Lord Ackner and Lord Hailsham. I said that it might be sensible to leave discretion where it is, governed by the case law, to which the noble and learned Lord, Lord Ackner, referred. I was merely drawing attention to what appeared to be a dangerous provision. I observed that the only example given by the noble and learned Lord the Lord Chancellor was to my mind a highly dangerous one—where someone gives evidence which seems to support the plaintiff's case and which is given in bad faith, query the order for costs. This is a provision which talks about supporting the bringing of the proceedings, not supporting the proceedings at trial, whether or not financially. It appears that the whole of subsection (4) ought to be looked at again. The noble and learned Lord was gracious enough to say that he would reconsider the provision in the light of today's debate. In those circumstances, but with some pleasure that I brought the matter forward, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 38 not moved.]
5.30 p.m.
Lord Mishcon Lord Mishcon moved Amendment No. 39:
Page 6, line 44, at end insert:
("(4A) No trade union or trade or professional associations shall be liable to have an award of costs made against it by reason of having supported the bringing of proceedings —

(i) by a member for damages for personal injury or for breach of that member's contract of employment; or

(ii) by their dependents or personal representatives of a member for damages in respect of that member's death.").

The noble Lord said: I can deal with this amendment briefly. If subsection (4) is removed, there will be no need for the provision now put forward. On the other hand, if the subsection is not removed, it will be necessary to make clear that no trade union or trade or professional association should be liable to have an award of costs made against it on the basis of financial aid or otherwise.
The cases mentioned in subsections (1) and (2) are, if I may say so, the minimum requirement at this stage. It may well be that trade unions and trade associations would in the future be concerned in other proceedings which ought to fall within the provisions of this amendment.
I put this amendment forward as a precautionary, if not probing, amendment. However, in the light of the fact that the noble and learned Lord is minded to consider the whole question of subsection (4), I promise noble Lords not to extend the debate beyond making these remarks. I beg to move.
Lord Boyd-Carpenter: I hope that my noble and learned friend will not favourably consider this
962
amendment. It proposes to give a separate and special immunity against an order for costs to two classes of people only; namely, trade unions and professional associations. It suggests that in cases where other people might be mulcted in costs, if the organisation concerned happens to be a trade union or a professional association then such a body would be immune. That seems wholly indefensible. I hope therefore that Members of the Committee will not accept the amendment.
The Lord Chancellor: I have already said that I shall reconsider the question of subsection (4). I understood the noble Lord to say that if the subsection were to be removed he would not wish this amendment to go forward. In the circumstances, perhaps he will feel able to withdraw his amendment today so as to enable me further to consider the position.
I should say that I certainly would not contemplate this amendment on its own, for the reasons given by my noble friend. It would not be appropriate. However, I can see that it may become dependent upon the existence of subsection (4) in that they are linked in this way.
Lord Mishcon: I intend to take the course which I previously indicated and which the noble and learned Lord correctly repeated. I say in answer to the noble Lord, Lord Boyd-Carpenter, that I was careful in the amendment to limit the immunity of trade unions or professional associations to cases which I should have thought would have met even with his approval; that is, where a trade union or professional association helps a member in respect of proceedings for personal injury, or for breach of contract of employment, and also where it assists dependents with a claim in regard to a member's death. I should have thought that with those limitations I would have received the support of the noble Lord's heart. However, I presume that his mind has overruled his heart on this occasion.
Lord Boyd-Carpenter: I thank the noble Lord for the gracious way he responded to my remarks. He has, with his usual skill, deliberately avoided the point. The point is that if any body other than a professional association or a trade union, in good heart, supports such pathetic cases to which he referred, it would still be at risk as regards costs. He proposes a very special immunity. Frankly, given the relationship between the trade union movement and the Labour Party, one fully understands why.
Lord Mishcon: It is not a relationship which covers all professional associations, although I wish that every one of them would support my party.
Having said that, if subsection (4) stands because the wisdom of the noble and learned Lord tells him that it should do so, some such amendment ought to go forward. Of course, I would have no objection to other proper bodies being added to the two bodies mentioned in the amendment. However, in the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Prys-Davies Lord Prys-Davies moved Amendment No. 40:
Page 6, line 44, at end insert:
("( ) No award of costs may be made against any person without that person being given an opportunity to show cause why the award should not be made.").
The noble Lord said: We have seen that under subsection (4), as it stands, it will be possible for the court to make an award of costs against a person who is not a party to the proceedings; and, indeed, against a person who has probably not been served with notice of the proceedings. We have also noticed that the jurisdiction under subsection (4) is very wide. We believe that it may be too wide. If subsection (4) is to remain, it is our submission that it would be unjust to make an award of costs against a person without giving him a reasonable opportunity of showing cause as to why the award should not be made against him.
If the jurisdiction under subsection (4) is to stand, we feel sure that there will be borderline cases. There will be circumstances where it will be open to argument whether a person who is not a party should be ordered to pay the costs. If the amendment was accepted by the Committee, it would at least ensure that the whole picture is presented to the court before it decides to exercise its jurisdiction. However, if subsection (4) was abandoned, the need for this amendment would not arise. I beg to move.
Lord Campbell of Alloway: Leaving aside the question of whether subsection (4) is to stand, surely an order for costs is never made without giving the person affected an opportunity to make representations. Irrespective of what happens to subsection (4)—and, it may be a failure on my part to understand —I do not see the force or the sense of, nor the need for, this amendment.
Lord Meston: I support the amendment. As the noble Lord, Lord Campbell of Alloway, said, it ought to be inconceivable that an order for costs should be made without the party concerned having the opportunity of being heard. As I understand it, the provision suggested by this amendment is not only fair. It is also entirely consistent with the existing provision which is applicable when one applies for costs against the Legal Aid fund for a successful unassisted party.
Lord Donaldson of Lymington: I oppose the amendment for the very reason given by the noble Lord. It is wholly inconceivable that a court would act contrary to the proposed amendment. I find it slightly irksome for Parliament to be able to tell judges that they really must act in accordance with the principles of natural justice.
The Lord Chancellor: It seems to me, with the greatest respect, that that is a complete answer as to whether subsection (4) should stand. As I explained earlier, the present law gives power to award costs against persons who are not party to the case. However, as my noble and learned friend, my noble friend Lord Campbell of Alloway and the noble Lord, Lord Meston, said, no court would think of
964
making an order against a person unless it was a special kind of order, like an Anton Piller order, without giving that person the opportunity to be heard.
Lord Prys-Davies: The amendment would place the matter beyond dispute. The noble and learned Lord the Lord Chancellor has referred to the Anton Piller procedure. That is an example of where an order can be made without the party having an opportunity to make representations. I shall not press the amendment, but we reserve the right to come back to it if Clause 4 remains part of the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees: In calling Amendment No. 41, perhaps I may say that the noble Lord, Lord Renton, may find it convenient to deal also with Amendments Nos. 42 and 43. Amendment No. 41 pre-empts Amendment No. 42.
Lord Renton Lord Renton had given notice of his intention to move Amendment No. 41:
Page 7, leave out lines 3 to 13.
The noble Lord said: To save time and make progress I do not intend to move Amendment No. 41. Amendments Nos. 42 and 43 go with it. I can write to my noble and learned friend the Lord Chancellor on that point.
[Amendment No. 41 not moved.]
[Amendments Nos. 42 and 43 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 44:
Page 7, line 21, at end insert —
("(8A) The Lord Chancellor may by order amend subsection (8)(a) by substituting, for the percentage for the time being mentioned there, a different percentage.
(8B) Any such order shall be made by statutory instrument and may make such transitional or incidental provision as the Lord Chancellor considers expedient.").
The noble and learned Lord said: The amendment allows the Lord Chancellor to amend by order the maximum amount by which costs may be reduced as a penalty for commencing in the High Court a case which should have been commenced in a county court.
The costs sanction has existed for a long time and is presently set out in Sections 19 and 20 of the County Courts Act 1984. That provision has been moved to its new place in Section 51 of the Supreme Court Act 1981 both because it assists consolidation of all the relevant enactments concerning costs and because the sanction applies to cases which have wrongly been brought in the High Court and is therefore more appropriately found in legislation about the Supreme Court than about the county courts. The power to alter the percentage is appropriate in the light of the type of power that is given to the costs sanction at present. I beg to move.
On Question, amendment agreed to.
Lord Prys-Davies Lord Prys-Davies moved Amendment No. 45:
Page 7, line 25, at end insert —
("(10) Unless the legal representative has acted on behalf of a party without authority, an award of costs may only be made against a legal representative if the court is satisfied that there has been a serious dereliction of duty to the court by the legal representative.").
The noble Lord said: There must of course be circumstances where it is appropriate for the court to order the personal payment of costs by a legal representative. As I understand it, the only power of the court to award costs against a legal representative arises from the court's inherent jurisdiction over solicitors. I believe —I am subject to correction —that it can be said that that jurisdiction is exercised where the solicitor has been guilty of a serious dereliction of duty to the court or where he has acted without authority.
The amendment merely gives recognition to that principle or practice. If I have misunderstood the principle, I am sure that I shall be corrected. The purpose of the amendment is to ensure that the criteria which now apply will continue to apply after the Bill comes into force. The jurisdiction would of course be extended to apply to all legal representatives. I beg to move.
Lord Campbell of Alloway: I oppose the amendment. What is the purpose of it? It does little other than codify existing practice. Why on earth should it be supposed that the existing practice, which has continued for years and years, should in any way be changed by the passing of the Bill? It is a fetter on judicial discretion. As the noble and learned Lord the Master of the Rolls has said, surely one can leave the judges to exercise their own discretion, unfettered by Parliament.
Lord Prys-Davies: I said that in addition to reflecting the present position the amendment would extend the jurisdiction so that it applies to all other legal representatives and not merely to solicitors.
Lord Ackner: The best point of my noble friend Lord Prys-Davies, which he may have overlooked, is that when we look at Schedule 7 —all 20 pages of it —and see the extraordinary melange of people who in future may well be judges, it is perhaps desirable to spell out everything.
Lord Hailsham of Saint Marylebone: I agree with what the noble and learned Lord, Lord Ackner, has said, up to a point. However, if the Bill's full intentions are carried out, the expression "legal representative" will not be confined to members of the legal profession. A certain amount of redrafting will be necessary if that is intended.
Lord Havers: I have knowledge of a case in which a member of the Bar, who had improperly pleaded something he should not have done, was made to pay the costs.
5.45 p.m.
The Lord Chancellor: First, "legal representative" is defined in the clause as follows:
"in relation to a party to the proceedings [it] means any person exercising a right of audience or right to conduct litigation on his behalf".
I should have thought that the correct rule would be to leave the matter to the court's discretion. I have no doubt that we shall have an opportunity to consider the point made by my noble and learned friend Lord Ackner in more detail at a more appropriate stage.
The amendment is unnecessary because one cannot be sure that one knows about all possible cases. This matter would be better left to the court's discretion.
Lord Prys-Davies: I am grateful for the support which the amendment has drawn, perhaps on grounds which I did not advance. I am not convinced that the amendment should be withdrawn; nevertheless, I shall withdraw it. We shall read carefully what has been said and consider whether the amendment should be brought back in a more perfected form so that the present principles will apply to all legal representatives. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 4, as amended, shall stand part of the Bill?
Lord Mishcon: Perhaps I may raise with the noble and learned Lord one question which puzzles me. It may be as a result of my ignorance, although I have looked at the Notes on Clauses and cannot find a solution to my problem. The point lies in subsection 8:
"Where, in complying with subsection (7), the responsible person reduces the amount which would otherwise be awarded to the person in question" —
I am not on the English language point on those lines—
"the amount of that reduction shall not exceed 25 per cent.".
Why 25 per cent.? Why a limit in an enactment of Parliament to that percentage which curtails the court's discretion? Who hit upon the figure of 25 per cent.? Is it drawn from some rule or provision which I have been unable to trace?
The Lord Chancellor: It is always difficult to get everything right. I thought that it was wise to limit the power in case people thought that it could be exercised in too draconian a manner. It seemed to me that a maximum of 25 per cent. was a reasonable figure to take.
Lord Wilberforce: With respect, whatever difficulties remain have been taken care of by Amendment No. 44 which gives the noble and learned Lord power to alter the figure. One has to start with something and give him power to alter it upwards or downwards. It is not left in an unsatisfactory position by a combination of those two subsections.
Lord Simon of Glaisdale: I too was puzzled by the point which the noble Lord, Lord Mishcon, raised. I should have thought that the figure ought to bear some relation to the comparative county court costs and the High Court costs. I assumed that 25 per cent. was such a comparative cost but apparently not. It is a figure which my noble and learned friend has snatched out of the air. It may be all the better for that, but it is difficult to justify, particularly in view of the point which my noble and learned friend Lord Wilberforce made that we now vouchsafe to my noble and learned friend perfect power to do what he likes with the figure.
Lord Mishcon: I should have thought that rather than putting a figure of this percentage in the clause and having to rely upon a statutory instrument —which not only takes the time of Parliament, if Parliament cares to discuss it, but incurs some other costs of a not minimal size —it would have been much more sensible to have left it again to the discretion of the court. I see no point in the minimum. However, having made the point during discussion on clause stand part, I ask the noble and learned Lord to be kind enough at least to consider it.
The Lord Chancellor: I shall certainly consider it. I indicated that we thought this was a good figure. I had regard to the present level of cost between the High Court and the county courts but it is impossible to justify such a figure in great detail. It seemed to me to be a reasonable figure. However, I shall consider whether the matter needs to be put in this way. So far as possible it mirrors the present situation in a slightly different way. We need something along the lines of subsection (8B) in order that that aspect should be considered. However, I am very happy to look at it again.
Clause 4, as amended, agreed to.
Clause 5 [Exchange of witness statements]:
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 46 to 50:
Page 7, line 28, leave out ("enabling the court to direct") and insert ("requiring, in specified circumstances,").
Page 7, line 31, after ("trial;") insert —
("(aa) enabling the court to direct any party to civil proceedings to serve such a statement on the other party;").
Page 7, line 32 after second ("a") insert ("requirement or").
Page 7, line 33, leave out ("the direction") and insert ("it").
Page 7, line 35, after second ("a") insert ("requirement or").
The noble and learned Lord said: If it is convenient to Members of the Committee, I should like to move Amendments Nos. 46 to 50 together. Clause 5 contains the power for rules of court to enable the courts to direct exchange of witness statements between the parties. This amendment would add a power for the rules themselves to require such exchange without an order of the court. In other words, it might be possible to do it generally, either for all cases or for classes of cases without an order. Ways are increasingly being sought of reducing the need for interlocutory hearings in cases where standard directions and orders can be made by rules
968
of court setting out what is to happen in certain circumstances.
Since exchange of witness statements may become a standard order in many kinds of cases, it would be undesirable if it could only be ordered by the court and not standardised in rules. I beg to move these five amendments en bloc.
On Question, amendments agreed to.
On Question, Whether Clause 5, as amended, shall stand part of the Bill?
Lord Mishcon: I apologise for popping up again on clause stand part, but it strikes me that there is something a little misleading in the marginal note. The noble and learned Lord used the expression "exchange of witness statements". The clause provides that the court may direct any party to civil proceedings to serve on the other parties a written statement. One can well see that in certain circumstances the court may only order one party to do this. The marginal note again refers to "Exchange of witness statements" as though the order could only be made by way of exchange. In other words both parties have to receive the order. I wonder whether the noble and learned Lord would care to comment in order to clarify the matter and make sure that the marginal note of "Exchange of witness statements" is not inaccurate.
The Lord Chancellor: The idea is generally to give equal treatment to both sides. The way in which the rule is expressed is to order one party to serve witness statements on another. There might be cases in which it was only appropriate to do it in respect of one side, perhaps at a particular time. The side note is a matter to be determined in the light of the final content of the clause. I shall certainly keep in mind the point the noble Lord has made.
Lord Simon of Glaisdale: In the interests of legislative economy, I wish to draw attention to subsection (3) which says:
"This section is not to be read as prejudicing in any way any other power to make rules of court".
I venture to ask why that is necessary. How can that section possibly prejudice any other power? If it cannot, it seems to me one of those little stock phrases that have been imprisoned in the computers of parliamentary counsel which scream to get out and succeed in doing so during the course of the Bill. I might have made the same point on the previous clause but this is really an extraordinary example.
The Lord Chancellor: If we can omit that subsection without harm, I shall be happy to do so. Perhaps my noble and learned friend will allow me to take advice on the point.
Lord Simon of Glaisdale: I am much obliged. I am perfectly content with that.
Clause 5, as amended, agreed to.
Clause 6 agreed to.
6 p.m.
Clause 7 [Restrictions on appeals to Court of Appeal]:
On Question, Whether Clause 7 shall stand part of the Bill?
Lord Meston: I oppose the suggestion that Clause 7 should stand part of the Bill. I do not apologise for doing so because this is regarded, not just by me, as a matter of great importance.
As I understand it, Clause 7 was not foreshadowed in the Civil Justice Review. It seeks to amend Section 18 of the Supreme Court Act 1981 and it is necessary for me to explain to Members of the Committee what Section 18 deals with. It sets out a list of important restrictions on the right of appeal to the Court of Appeal. In some categories of case there is an absolute bar on appeal; in some categories there is a right of appeal only with the leave of the court.
The first important point to note is that all those categories are spelt out in the 1981 Act; that is to say, in primary legislation. They have existed for a long time. The only alteration in recent years has been the added category of case in which it was said that there should be an unrestricted right of appeal. That is where access to a minor is entirely refused. Having pointed out that factor, it is not difficult to guess what my first broad objection to Clause 7 is. It removes certain categories of case from primary legislation and leaves them to the mercy of a rule-making body. I suggest to the Committee that rights of appeal, particularly in sensitive and significant areas, are simply too important to be taken away from primary legislation.
My second broad objection is that what would go by virtue of Clause 7 is the clear statement in Section 18(1)(h) of the 1981 Act that there is an unrestricted right of appeal in cases involving the liberty of the subject, custody of children, refusal of all access to children and injunctions. We have no idea what is to happen to those existing categories under the proposed rules. As I have already indicated, my concern is to preserve an unrestricted right of appeal in matters of such importance.
I am tempted to rest the argument there without attempting to guess the reasons for Clause 7 and without attempting to anticipate the arguments in support of it, or indeed without seeking to anticipate what may or may not appear in the rules which I assume are as yet unwritten, let alone in any future revisions of those rules. One can only presume that the rules, when they appear, will not preserve the status quo. If they did so there would be no need for Clause 7. One can only suspect that rules will be introduced to impose some filter on what may be regarded as hopeless appeals to improve further the efficiency of the Court of Appeal.
Efficiency is of course important, but I suggest that the Court of Appeal certainly has become in recent years highly efficient. One simply must not lose sight of the fundamentals. I suggest that it is a fundamental principle that there should be an unrestricted right of appeal; for example, if one's child is removed, if one is denied all access to one's child, if one is locked up or if one's assets are frozen.
970
I have two further subsidiary points to make. In child custody cases particularly what makes an appeal or a proposed appeal hopeless is a judicial decision of this House, reported in 1985, called G. v. G. Under that decision this House held that the Court of Appeal should only intervene in a child custody case if it is satisfied that the judge at first instance was plainly wrong. The Committee will understand that that makes it difficult to get an appeal off the ground. Responsible counsel —certainly counsel advising for the purposes of legal aid for appeals—recognise that difficulty and, generally speaking, are reluctant, or should be reluctant, to advise an appeal. I suggest that that in itself is or should be an effective filter.
Whether or not that ruling is supportable is a wider and different question. However, I should mention the powerful letter printed in The Times on 31st August 1989. The letter was written by Sir John Latey, perhaps one of the wisest of our Family Division judges. He wrote in his letter:
"There is a grey area in these cases where, though one cannot go so far as to say that the court below was plainly wrong, one is left with clear uneasiness that it may well have gone wrong. In such cases should not the appellate court have power to direct a rehearing?"
I accept that that is a suggestion made about the law as it should be and not as it presently is. Nevertheless, that is something we should consider.
Finally, it may be possible to live with the requirements of Clause 7 if it were clear from the rule-making provision that the proposed appellant would have the opportunity at least to seek leave from the Court of Appeal. As Clause 7 stands, the rules may prescribe that,
"an appeal shall lie to the Court of Appeal only with the leave of such court or tribunal as may be specified".
In other words, it seems that it may be possible for the rules to state that if the court at first instance refuses leave to appeal in such a sensitive case that is the end of it and the proposed appellant does not have the benefit of at least one trip to the Court of Appeal to seek leave. I return to my basic proposition, which is that matters which are now left uncertain by Clause 7 are too basic and too sensitive to be left out of primary legislation.
Lord Campbell of Alloway: I support the spirit of what has been said by the noble Lord. The words,
"as may be specified by the rules in relation to that case",
are a form of drafting which opens the door to potentially extremely worrying consequences. If one could be assured that this wording could be altered to ensure that in any event the Court of Appeal could always give leave, and that were assuredly stated, the main point of my objections would be met. Time is short and there are other objections to the provision, but that is the main one. I wonder whether my noble and learned friend the Lord Chancellor could possibly take that on board.
The Lord Chancellor: I was not proposing to enter into a full account of my position at the present moment. However, in view of the point that has been raised I wish to say, first of all, that what is proposed here is that these powers should be dealt

971
with by the rule-making body for the Supreme Court. I believe that the rule-making body for the Supreme Court has in it those who would want to ensure that the concerns of the noble Lord, Lord Meston, and of my noble friend Lord Campbell of Alloway are met. However, I accept that it would be an improvement to make it clear that such a concession would be granted only with the leave of the Court of Appeal and,
"such court or tribunal as may be specified by the rules".
In other words, I certainly intend that it will always be possible to ask the Court of Appeal for leave.
The only other point I wish to mention at this stage is that the idea is not to go across the board without careful consideration. The purpose of the provision is to enable us to give separate consideration to different classes of cases and not to go across the board immediately, but rather to leave this matter to be considered carefully in relation to each class of case. As I said, I thought the fact that the rule-making body was the rule-making body for the Supreme Court would be an important safeguard in that connection. I think this process will take some time. I do not envisage it happening very quickly, and it is something we shall have to consider carefully. However, this seemed an opportunity to make the necessary provision in primary legislation.
Lord Lane: I wish to support what the noble Lord, Lord Meston, said. This is a sensitive area and at this time it is particularly sensitive because there is to be devolved to the county court —this is now happening —a large volume of work. With the best will in the world, the county court does not operate with the same facilities as the High Court. The transcripts of judgments and the notes of the judges are probably not as well or efficiently done as they are in the High Court. That will inevitably result in a greater volume of appeals.
Perhaps I may suggest that the proposal in Clause 7 merits very careful consideration indeed. It merits consideration as to whether the law should not be left as it is, at least for the moment, until we see where we are going, with the enormous difficulties that everyone knows are arising and will arise in the county court.
6.15 p.m.
Lord Ackner: My noble and learned friend the Lord Chancellor in his opening speech on Second Reading, at col. 122 of Hansard of 19th December 1989, said:
"Our keynote is to improve access to justice for all who need it"
The clause seems to me contrary to the spirit he was urging. It is an attempt to remove from the potential litigant a right which is an absolute right in cases relative to the liberty of the subject, custody, access and certain injunctions, particularly the Mareva injunction to which reference has been made, under which a person's property can be totally frozen pending trial, or the Anton Piller order which is a most robust order enabling a person to obtain permission to enter and search another's property.
972
It may well be said that all we are trying to do is to keep out those cases which waste the court's time because they have no prospect of success. Some very wise words were spoken by Mr. Justice Megarry, as he then was, later to become the Vice Chancellor, in the case in 1965 of John v. Rees. He said:
"As anyone who has anything to do with the law well knows, the path of the Law is strewn with examples of open and shut cases which somehow were not, of unanswerable charges which in the event were completely answered, of inexplicable conduct which was fully explained, of fixed and unalterable determinations that by discussions suffered change".
This Chamber, I know, and for certain reasons knew before I was elevated to it, is very jealous about legislation seeking to remove access to the courts. The noble Lord, Lord Mishcon, my noble and learned friend Lord Hailsham, the noble Lord, Lord Campbell, and certainly the noble Lords, Lord Hutchinson and Lord Hooson, may remember some five years ago a debate about Clause 43 of the Administration of Justice Bill. What was proposed there was by primary legislation and not this somewhat back door procedure.
The Committee may know that in judicial review the applicant must first apply to a judge or judges of the divisional court for leave. If he fails to obtain it he is not entitled to appeal but —and this is almost the same —is entitled as of right to apply to the Court of Appeal. At that time the Court of Appeal was —and still is, although it has had a substantial addition of new judges —under great pressure. In order to reduce that pressure the suggestion was made, without proper consultation of the judiciary (for which my noble and learned friend Lord Hailsham was not to blame) that the right to apply should be removed.
When the matter came up at Committee stage my noble and learned friend Lord Hailsham conceded that there had not been proper consideration by the judges. He said that he would withdraw the proposal and come back at Third Reading with an alteration. That alteration left the right to apply but under modified circumstances requiring the leave first of the divisional court and then of the Court of Appeal. It was put forward as a modest amendment giving the applicant something that was almost as good as what he already had. I think that my noble and learned friend Lord Hailsham said that it was better because there were more stages.
The justification for all of that effort was that the present applications occupied a month of the time of the Court of Appeal consisting of three judges. Before the debate on the Report stage my noble friend Lord Hutchinson of Lullington had gone to the trouble to inquire of the Bar how long it took. He informed the House that so far from it being a month of judicial time it was at the most eight hours. I am happy to say that this Chamber refused to accept the amendment thereby underlining how important it was that the House should consider any attempt to remove access to the Court of Appeal.
I know that it will be said, "Ah, but the Court of Appeal is merely being given the right to consider whether it should grant leave". I am not happy about that situation at all, for this reason. When the suggestion arose in Clause 43 the Master of the Rolls

973
was under great pressure with backlogs of lists. That pressure could have been eased by Clause 43, or it could have been eased, at it was, by the supply of more judges. However, the supply of more judges cost more money. One can always anticipate resistance from the Treasury when more facilities are required.
The Committee will remember our debate last Tuesday with regard to Clause 1. Although my noble and learned friend the Lord Chancellor was anxious that Part I be passed in order to reduce cost and delay by transfer into the county court it was pointed out by many, and by my noble and learned friend Lord Hailsham in particular, that if that transfer occurred now there would be a fearful shambles in the court and that it was a question which could only be dealt with in years, not months.
Since that debate I have received a letter from a very experienced and much respected QC who appears frequently before your Lordships' appellate committee. Like most senior barristers, at considerable cost to his practice, he gives up time to sit as a recorder. His letter is pertinent to the amendment. He says:
"I have just completed two weeks of sitting in the Inner London Crown Court as Recorder. Before I did so, I tried to sit for a further couple of weeks in February or March. However, the circuit administrator"—
the civil servant—
"informed my clerk that there were no available sittings during those two months.
I therefore enquired when I came to Inner London as to why it was so difficult to be able to sit. I discovered that two courts are being closed throughout February and March solely because the Lord Chancellor's department has required three trained court clerks from Inner London to be deployed to the County Courts. This is because they cannot recruit staff for the County Courts at present abysmal rates of pay and are therefore desperately having to redeploy staff from the Crown Court. This will leave only eight trained court clerks to service 15 courts, 13 during February and March.
During the five years in which I have been sitting in Inner London I have witnessed the obvious decline in the availability of trained court staff and the consequences for the public including the defendant. The effect of this latest move will undoubtedly be to deprive defendants of their liberty for longer periods than is necessary".
That quite indefensible robbery of Peter to pay Paul is relevant in regard to the proposal because if, despite his undoubted powers of persuasion, my noble and learned friend the Lord Chancellor is still unable to ensure that proper facilities are provided to service the courts, the Court of Appeal suffers more and more delays as a result. These rules exist and when my noble and learned friend the Master of the Rolls says, "I must have more judges, more courts and more staff", the answer will be, "You must exercise your discretion and refuse, as you are entitled to do, more appeals to your court".
Some judges take the view —I do not share it —that matrimonial matters are barely justiciable. Other judges take the view that, without hearing anyone, they can discern immediately what the inevitable outcome of the case will be. Under the pressure that would exist in those circumstances it is easy to see how the public's right of access to justice, which my noble and learned friend is so anxious to improve under the Bill, might have the reverse effect. That is
974
why I support the proposal to remove the entire clause.
Lord Mishcon: Perhaps I may say, first, how delighted I am to be able to agree with the noble and learned Lord, Lord Ackner, and how much I appreciate the comparatively moderate tones in which he spoke. I am sure that that moderation will apply whichever part of the Bill we discuss.
I wish to leave the perfectly proper Treasury point raised by the noble and learned Lord. I wish to emphasise that my support for the amendment is based upon the public view —a very proper view —of their rights to go to our courts, to obtain a decision and, where appropriate and on advice, to be able to appeal against a decision which they regard as wrong.
Perhaps I may go off at a tangent. although the point is relevant, to tell the Committee how difficult it is for members of the profession to explain to the lay client our rules in regard to rights of appeal. Some noble Lords may not know that when a court of first instance, with all the learning of a High Court judge, makes a decision that goes to the Court of Appeal which then reverses the decision, the leave of the Court of Appeal or the House of Lords must be obtained before the citizen may have his appeal heard, the appeal being that the judge of first instance was right and the Court of Appeal was wrong.
It is difficult enough for the layman to have explained to him that he must obtain the leave of the Court of Appeal or the House of Lords when a judge of first instance found in his favour. It is impossible to explain to the layman that the House of Lords has on occasion —quite a few occasions —refused leave to appeal to the litigant who was successful before one of the High Court judges who delivered his judgment in accordance with the law as he saw it. There have been such cases. It is difficult enough to explain that to the layman, but, even after the explanation, he is left with a sense of righteous wrong.
We are dealing here with a highly dangerous proposal which seeks to limit, by the rules of the Supreme Court or by statutory instrument, people's right to go to the Court of Appeal. Cases regarding the liberty of the subject and immigration cases may be involved. As noble Lords have heard, custody of children may be involved. Possibly the most precious and sensitive cases involve individuals' rights to be with their own children. As a result of possible arguments about pressure on the Court of Appeal, those cases may require leave to appeal where no such leave is now required.
The case for that being done by primary legislation alone, with the due consideration of Parliament, is unanswerable if we consider the phrase so often used in regard to the Bill —the true interests of justice. We must also consider, as was so often mentioned on Second Reading and on the first day of Committee proceedings, the fact that the public must be assured of their right to enter our courts of justice when they feel that their civil rights have been wronged.
The doors of the Court of Appeal should also be open unless, after due consideration, Parliament

975
otherwise dictates. There are safeguards. In legal aid cases a legal aid certificate will not be granted unless the legal aid committee considers that there is an arguable and proper case to go to the Court of Appeal. In cases which are not legally aided, the practitioner will always point out the sanction of an order being made for costs against the person whose appeal was in any way reckless. It would be ordered automatically if the appellant were unsuccessful.
We should not pass the clause; indeed, we dare not pass the clause.
Lord Campbell of Alloway: In view of what has been said by noble Lords, perhaps I may respectfully ask my noble and learned friend the Lord Chancellor whether, in order to avoid a Division, he will consider taking the clause back for consideration, given that there is general concern throughout the Chamber.
6.30 p.m.
Lord Donaldson of Lymington: I sincerely hope that my noble and learned friend the Lord Chancellor will do no such thing. If this is a convenient moment, I hope that I may express my views.
It was for the first time in October 1984, when I gave the second annual report on the work of the Civil Division of the Court of Appeal, that I raised the question of whether there should be some further and perhaps better restrictions on the rights of appeal to the Court of Appeal. Since then in, I think, every annual report and certainly most of them I have pleaded for that restriction. I was considerably surprised to see the amendment in the name of the noble and learned Lord, Lord Ackner, and even more surprised to be told for the first time yesterday that my noble and learned friend the Lord Chief Justice was opposed to the proposal. I had thought that it was widely supported among those concerned with the work.
I appreciated before the debate, and appreciate still more tonight, that the reasons we want the restrictions are widely misunderstood. We do not seek them for the convenience of the judges, nor for the administrative convenience of the court or the court staff. The primary reason we seek them is to prevent the tear-jerking hardship —it is frightening to see it —suffered by litigants who, no doubt despite the advice that they are given by their lawyers, persist in arguing cases which are wholly and completely unarguable. They beggar themselves and their families in the belief that no stone must be left unturned and no share, property or savings unrealised in order to redress what they consider to be an injustice but which is in fact a completely unappealable case.
It is said that the decision on who should be allowed an unfettered right and who should be allowed a fettered right of appeal —because no one is suggesting that these people should be denied a right of appeal —or the choice between unfettered and fettered rights should be enshrined in primary legislation. As I shall tell the Committee very briefly
976
in a minute, this is an extremely complex subject and unsuited to primary legislation. However, the point that I wish to make is that at the moment it is not contained in primary legislation. At the moment the position is that by far and away the largest number of appeals for which leave to appeal is required comes within the category which depends entirely on a unilateral decision by the Lord Chancellor for the time being. He is empowered under Section 77 of the County Courts Act 1984 to prescribe those categories of case in which leave to appeal is required either from the trial judge or from the Court of Appeal.
I think that it was my noble and learned friend Lord Hailsham who did it but it may be that the present noble and learned Lord the Lord Chancellor has added to it. The current position is that, if anybody claims more than half the monetary jurisdiction of the county court or, if it is an appeal from a county court judge who himself has heard an appeal from a registrar, leave to appeal is required. There are plenty of wily litigants who, knowing that they have a claim which is worth a good deal less than half the value of the county court jurisdiction, up their claim, thereby knowing that they will have an unfettered right to go to the Court of Appeal regardless of the merits.
The next source again depends on subordinate legislation because, although my noble and learned friend Lord Ackner no doubt was thinking of the fact that Section 18 refers to rights of appeal in relation to interlocutory decisions, he did not tell the Committee how one can detect an interlocutory decision, and that itself is subject to subordinate legislation. That has proved so difficult that the Rules Committee has now produced a general rule, which is subject to no fewer than 40 exceptions, that can be found in the annual practice. Subject to the special provisions of paragraph (f) of Section 18(1), it is whether an order is an interlocutory or a final order that governs whether there shall be leave to appeal. In fact it is only in relation to paragraph (f) of that section that primary legislation wholly rules. It provides —and I am delighted to hear that the noble and learned Lord the Lord Chancellor will override it if he has the power —that one can only appeal to the Court of Appeal from a costs order where the costs are in the discretion of the learned judge or from a consent order if the judge concerned agrees.
There is no power in the Court of Appeal to give leave at all. I think that that must have been thought to have been so undesirable that by a decision —which I have great difficulty in explaining but which of course I loyally apply —in the Scherer v. Counting Instruments case we are given the opportunity of ignoring wholly Section 18 and granting a right of appeal if it can be said that the judge failed to act judicially at all. I do not seek to explain it: I merely mention it as one of the complications of life which would go if the Lord Chancellor in the Rules Committee —not by himself; the Lord Chancellor is a member of the Rules Committee —is allowed to provide detailed rules.
Let us not forget that the Rules Committee consists of the Lord Chancellor, the Lord Chief Justice, the

977
Master of the Rolls, the President of the Family Division, the Vice-Chancellor, one or two (I forget which Lords Justices, certainly two other High Court judges, two barristers and two solicitors. If the Executive ever wanted to hijack the courts, I strongly advise it not to try to do it through the Rules Committee.
The objection to the present system is its total complexity in so far as it is in primary legislation —and relatively little of it is —its total inflexibility and sometimes, perhaps I may say, its plain stupidity. That stupidity is included in Section 18. On one occasion I was enraged to find a gentleman knocking at the door of the Court of Appeal saying that he had an extremely urgent appeal on which he had an unfettered right to appeal to the Court of Appeal. It arose because he had gone to the judge in chambers on an emergency application. The respondent was British Telecom or its predecessor. He wanted a telephone fitted that afternoon. British Telecom's answer was that he had four lines already which had been ceased for non-payment of the bill. Not surprisingly the learned judge in chambers threw it out. Within half an hour he was in the Court of Appeal, as I said. In retrospect I am a little ashamed of it but in fact it seemed easier to hear him at once than to throw it out again. However, he should not have been allowed at all to take up the time of the Court of Appeal.
I regret to say that some appeals are truly unarguable. It may be that the decision of this Chamber in a judicial capacity in G v. G is wrong. But in my view we simply have to follow it. In the light of that decision so many discretionary decisions taken by judges in matrimonial cases are simply unappealable. I would defend the decision to this extent: in those terrible situations which arise in the matrimonial field it would be a bold man who could say that there is a right decision. The plain answer is that the judge has to do his best and no one can say that there is another answer which would be better. However, families throw themselves financially and emotionally into these contests and can ruin themselves in so doing.
Some provisions are already subject to a filter but at a lower level. Judicial review is an example. At the risk of boring the Committee and extending the debate (but I happen to know what I am talking about) perhaps I may just mention judicial review. It works as follows. One goes to a High Court judge with an application for leave to be allowed to bring judicial review proceedings. The judge has a look at it and in some cases, particularly if he thinks it urgent, he may grant leave as being a fairly sensible way of bringing the respondent to the court to find out what the case is all about. Having granted leave and gone through the matter very thoroughly he says that the case is totally unarguable. As things are the unsuccessful party then has an unfettered right to go to the Court of Appeal, although there was a filter at an earlier stage which he managed to by-pass but which the same judge, having gone carefully into the matter, in effect says, "Had I known the facts, I would never have granted leave". That is something at which the Rules Committee would want to look.
978
I am not suggesting that necessarily it should be altered but certainly it should be looked at.
The existing system works well but it applies to only about one quarter of all appeals. That is not a subjective opinion; I can prove it objectively. The success rate where the appeals are subject to leave was 34 per cent. in the past year and 37 per cent. in the year before. The success rate where appeals are not subject to leave in both 1988 and 1989 was 21 per cent. That shows quite clearly that the provision is filtering out some of the more hopeless appeals.
Furthermore, anticipating the assault of my noble and learned friend Lord Ackner, an assault based on Mr. Justice Megarry's remarks about open and shut cases, I mention that in the past two months of November and December, the Court of Appeal has been conducting a pilot experiment which works as follows. We took all the appeals in which leave to appeal was not required and every judge was asked, when he first looked at the papers and before the appeal was argued, to fill in a form which asked: Do you notionally grant leave or do you notionally refuse leave? There were 111 appeals dealt with in that way. In 97 of them leave to appeal was notionally granted. Of course the parties did not know that; they were not involved in any way.
However, just on the papers, in 97 out of the 111 cases leave to appeal was granted. The success rate in those cases was the success rate that one would expect; namely 34 per cent. —almost the same as in the ordinary run of cases where leave is required. Leave was refused in 14 cases. Of course those appeals were duly heard because the refusal was purely notional. One only of those succeeded. I was very bothered that there should be even one that succeeded, so I asked the judges who had been concerned what had happened. It was a matrimonial case in which, after they had reached their notional decision not to grant leave to appeal, the husband had been guilty of a vicious assault on the wife which, if it had occurred earlier, would have made all the difference because they were concerned with the custody of a child. One really cannot tailor a system to cope with the situation where events change after the time when you have to make a decision.
Perhaps I may just mention that it is not only the appellant who is affected by unarguable appeals. So is what one might describe as the victim, the respondent to the appeal. He is the one who, when all is said and done, is being denied the benefit of his judgment; he is being denied any benefit of peace of mind.
In anticipation of this debate and when I heard that my noble and learned friend the Lord Chief Justice was going to oppose it, I called a meeting this morning of all the Lords Justices who were available, and that was most of them. I am authorised by them to say that the proposal put forward by the Government has their support subject to two caveats.
The first caveat is that they would like to be consulted about the particular categories of case which would be subject to leave or not subject to leave under the Rules of the Supreme Court. I do

979
not doubt for one moment that they would be very fully consulted, if not by the Lord Chancellor. After all, I am myself a member of the Rules Committee, and I am perfectly capable of consulting my own colleagues.
The second caveat was that they would like consideration given to amending this Bill to enable two judges to sit together to consider a leave to appeal. It is thought that that would be an improvement. By a quirk of drafting it is not possible under the existing Act. It has to be one judge or three judges under that Act. Some of them think it would be better to have two. I quite see that if there were any doubt about it it might be a comfort to any single Lord Justice who wondered, "Am I really right to put my own judgment on the line to the extent of shutting somebody out?" It might be a comfort to him and a help if he had somebody else to consult.
The final point I should like to make concerns the view of my noble and learned friend Lord Ackner that if the going got tough, if government money was tight and resources were inadequate, my noble and learned friend the Lord Chancellor would be on the telephone to me saying, "Master of the Rolls, will you please tighten up on the number of cases in which the court is giving leave to appeal?" I think I can assure my noble and learned friend Lord Ackner —I doubt whether the Lord Chancellor needs any such assurance —that he would get an extremely dusty answer.
Lord Griffiths: I find this clause entirely satisfactory as it stands in the Bill. I should like to take the opportunity to remind your Lordships of the nature of the body that is responsible for making the Rules of the Supreme Court, because the noble Lord, Lord Meston, referred to leaving the matter to the mercy of some rule-making committee. In fact, those responsible for the Rules of the Supreme Court are the Lord Chancellor, together with any four or more of the following persons: the Lord Chief Justice, the Master of the Rolls, the President of the Family Division, the Vice-Chancellor, three other judges of the Supreme Court, two practising barristers, one of whom has to be nominated by the chairman of the Senate and Inns of Court of the Bar, and two practising solicitors. We have a truly independent legal profession in this country and it is unthinkable that the Lord Chancellor would have any opportunity of choosing either the barristers or the solicitors just to appoint yes-men and make them four of the rule-making committee. Indeed, the vigilance of the Senate of the Bar and of the Law Society would ensure that that could not take place.
I can think of no more informed or wiser body to consider this very delicate decision as to which appeal should be as of right and which should require leave. For my part, I am perfectly content to leave it in their hands. I am confident that you would get a very much more closely informed decision from them than if it were just left to the emotions of a parliamentary debate.
6.45 p.m.
Lord Bridge of Harwich: I entirely agree with what has just fallen from my noble and learned friend Lord Griffiths, subject to the fact that I am not wholly happy with the drafting of the clause.
As I understand it, my noble and learned friend the Lord Chancellor has assured us that the intention of the clause is that, whenever leave is required in relation to a category of cases in virtue of an exercise of this power, the applicant for leave will never be denied the opportunity to pursue his application to the Court of Appeal and to the full court if it is denied to him at any lower stage. Subject to that caveat, I am entirely happy with the clause, and I enthusiastically support it.
To describe a clause which has that effect as giving power by delegated legislation to deny access to justice —cases such as liberty of the subject, family orders, custody of children and the like —is quite misconceived. Take the present position in relation to somebody who is convicted of murder and sentenced to imprisonment for life, or who is convicted and sentenced for any other crime. Such a person, unless he has a point of law, requires the leave of the Court of Appeal in order to appeal. He seeks leave of the single judge. If he does not get it he goes to the full court and argues his case for leave. In a sense, when leave is required in civil cases, not only does the necessity for the applicant for leave to go and argue his case before the Court of Appeal and get leave if he has an arguable case confer an advantage on the respondent, who is not brought to the court at unnecessary cost, but also, if he has any means, it confers a positive advantage on the applicant for leave to be told at an early stage that his case is quite hopeless and unarguable, having had a full opportunity to argue it. He is thereby saved the waste of any further funds in his hopeless endeavour.
Lord Roskill: Perhaps I may support what has fallen from both my noble and learned friends who have just spoken. In view of what has been said about the Rules Committee of the Supreme Court, perhaps I should disclose an interest because for almost all my eight and a half years as a member of the Court of Appeal I was the Court of Appeal member of that committee. No committee on which I have ever sat has been more careful or more scrupulous in ensuring that the powers conferred upon it by statute are exercised so as to secure just results from the exercise of those powers.
The second point I wish to make is that anybody who has sat in the Court of Appeal over a long period knows that for many years there has been an indefensible dichotomy between cases where there is an appeal as of right and those where there is no appeal except by leave. As I am sure my noble and learned friend the Master of the Rolls knows, what is an interlocutory appeal has never been susceptible of accurate definition.
My third point is that which my noble and learned friend the Master of the Rolls made last. During Committee we have heard many emotional appeals about the position of would-be appellants. I wonder how many Members of the Committee have watched

981
the reactions of respondents who have been successful in the court below as they are dragged through an appellate system when to any rational person looking at the matter objectively the case is wholly unarguable. The inevitable disturbance of family life caused by some unhappy dispute over custody or access is protracted rather than simplified and brought to an end.
Finally, the noble Lord, Lord Mishcon, mentioned the difficulties in explaining the reasons why a client of his or of anybody else who has succeeded at first instance but failed in the Court of Appeal is unable to obtain leave to appeal before your Lordships' House. I believe that the restriction was introduced in 1933 at about the time that I was called to the Bar. It was introduced in order to meet endless complaints that people were being dragged up through the hierarchy of tribunals in order finally to meet their Waterloos in your Lordships' House. I now recall that the reform was greeted with almost unanimous approval.
Lord Mishcon: We were all impressed by the experience of the noble and learned Lord the Master of the Rolls who has our great respect. We emphasised, as did another of his colleagues, the way in which the Rules Committee acts and the personnel involved. Can he inform the Committee how often the Rules Committee meets and is it a fact that it has not met for two years?
Lord Donaldson of Lymington: One of the things that always charms me about the noble Lord, Lord Mishcon, is that he is so able an advocate. In particular, he obeys rule 1; that is, never ask a question unless you know the answer. It is true that the committee has not met for about two years. On the whole, that has been to the profit not only of the committee but of its deliberations, which are conducted on paper. Its members are busy people.
The department produces suggestions which have been stimulated by the Supreme Court Rules Committee and other people. I am not averse to submitting written suggestions, as my noble and learned friend will confirm. The suggestions are circulated for comments and we take it from there. It is a possible criticism that there might be one or two cases in which it would have been better to have met, but we did not. I am sure that, in the light of the noble Lord's intervention, if the clause stands part of the Bill and we come to deal with anything as important, the members of that committee will not only circulate their views but, having cleared their minds, will meet in person.
Lord Mishcon: Will the noble and learned Lord accept from my presumption that I should not have obtained leave to appeal from him had I tried and, secondly, that I knew the answer to the question which is why I asked it?
Lord Carlisle of Bucklow: I confess that I was worried about the clause when I first saw it and I should like to ask my noble and learned friend one question. Is it his intention that any rules which may be prescribed that require leave of appeal to
982
the Court of Appeal will make clear, first, that the individual has the right to apply to the Court of Appeal for leave and, secondly, if necessary, to apply to the full court? If that is so, the clause appears to be unexceptionable.
As has been said, the position then would be similar to that of the Court of Appeal (Criminal Division). No one can seriously say that the need to obtain leave is in any way a complete fetter on people because they always have the right to argue the application for leave to appeal to the full court. If that is the intention of the clause as regards civil matters it appears to be unexceptionable and should be passed.
Lord Rippon of Hexham: I too have been racked by doubt as the debate has proceeded. I began from the point of view that the clause was too wide and made proposals which should be dealt with by primary legislation. Of course one must be impressed by the weight of the arguments put forward by the noble and learned Lord the Master of the Rolls and other noble and learned Lords. It may be that the practicality of the matter is with them but, as a layman and one who has had political experience in the other place, I believe that we would be most unwise not to give great weight to the comments of the noble and learned Lord the Lord Chief Justice.
The matter is one of great sensitivity especially at the present time. In dealing with the matters which affect children, the liberty of the subject, immigration and so forth we must be particularly sensitive and careful. We would be unwise to reach any definite conclusion on the matter this evening. It would be wise to read and think about what has been said; at least that is what I should like to do.
Law reform is always difficult. It is almost impossible to carry out satisfactorily without consent. When we have to consider a difference of opinion between the noble and learned Lords the Lord Chief Justice and the Master of the Rolls, we would be wise to reflect on the position most carefully.
7 p.m.
The Lord Chancellor: As my noble and learned friend the Master of the Rolls has said, the point has been raised in almost every annual report that he has submitted since 1984. Indeed, since I have been in office as Lord Chancellor I have been extremely conscious of it.
I had to consider carefully the submissions contained in the annual report, particularly those in the last report. I do not hesitate to read the contents of the 1989 annual report because it is an important matter. My noble friend Lord Rippon of Hexham has suggested that Members should consider the matter and, therefore, I wish to put the considerations fully before the Committee. It states:
"The justification for the present system whereby some categories of appeal —most interlocutory appeals and some appeals from the County Courts —can only be brought by leave of the trial judge or of the Court of Appeal self, is threefold:—
1. It is no kindness to alow a litigant who is unsuccessful in the trial court to incur costs protesting at this result, if the decision is demonstrably correct or, which is alas all too often the case particularly in matrimonial disputes, if there is no 'right' answer

983
and the trial judge, doing the best that he can, must inevitably be the final arbiter.
2. Allowing such appeals to proceed causes grave injustices to the successful party, who is denied the benefit of the judgment in his favour pending the outcome of the appeal and almost always incurs irrecoverable costs resisting the appeal.
3. The employment of the resources of the Court and the hearing of such appeals inevitably postpones the hearing of other appeals where there is a real issue to be decided".
That is my answer to the access to justice question referred to by my noble and learned friend Lord Ackner. I had to consider, as must Members of the Committee, access to justice for everyone. It is an important reason for the present restrictions on rights of appeal that those who have a real point should be able to get on with it rather than have to wait unduly while completely hopeless appeals occupy the time and resources of the court.
I quoted from paragraph 5 which describes the present position and justification for the rules. The report continues:
"It is to be hoped that in the context of forthcoming legislation arising out of the recommendations of the Civil Justice Review, consideration will be given to extending the requirement for leave to appeal across the board, both because there is no justification for allowing any appeal to proceed if it has no prospect of success and because the present dividing line between those in which leave is required and those in which it is not, is quite illogical".
The report then goes on to illustrate some of those cases to which my noble and learned friend the Master of the Rolls referred.
Against that request, it seemed to me that consideration should be given to this matter. When I considered it, I felt that this was not a matter in which one would be wise to go right across the board without detailed consideration of individual cases, including their timing. I take especially into consideration what my noble and learned friend the Lord Chief Justice has said. There may be a time and tide in the affairs of man to which one should look. One may have to be careful in relation to the work which is going down and has gone down to the county court, as to precisely which types of cases may be subject to that requirement.
Personally, I cannot think of a more powerful committee to decide that than the Supreme Court Rule Committee. The noble Lord, Lord Mishcon, from a sedentary position, points out, as the Master of the Rolls said, that it does not meet. I believe that some of the most effective committees proceed best upon paper. It is necessary for the individuals to sign the result. When I ultimately make a rule, I do so after the others have signed. Therefore, perhaps one avoids the difficulty of designing a horse which some committees create, and in this particular case, one has, in effect a document in which each of the members of the committee approve the rule in question. I believe that that is an extremely good way of doing that where it is possible to reach some degree of agreement in principle. If there was a dispute in principle about the matter, of course a meeting might be convenient.
However, the Supreme Court Procedure Committee makes recommendations about changes which are required, and of course they come from individual members of the court. The Master of the
984
Rolls, the Lord Chief Justice and many others have suggestions for improvements in the Supreme Court rules. That is an extremely powerful committee and Members of the Committee may think it unlikely that it would very readily allow interference with the course of justice. I submit to Members of the Committee that this matter should be considered in detail by reference to particular types of cases by that committee.
I make it plain that I intend to put into the primary legislation by amendment that leave can always be given by the Court of Appeal. I shall consider the point made by the Lords Justices this morning that it may be necessary to consider whether a two-judge court would be appropriate in some circumstances. That is something which I shall consider further. Normally, there would be either a single judge or the Court of Appeal itself. However, I shall certainly consider that matter because there are provisions which allow for a two-judge Court of Appeal in certain circumstances at present.
Certainly I make it clear that the leave of the Court of Appeal will always be open to be applied for even if, in addition, one can obtain leave from the lower court. I believe that to be the right way forward. I believe that that will also enable us to take proper account of timing because I hope that this Bill will last for some considerable time. I should expect that process to be careful and deliberate and properly adjusted in terms of time.
Personally, I feel that it would be quite wrong for me as Lord Chancellor to refuse to give consideration to what the Master of the Rolls, with the support, as he has told us, of the Lords Justices who were available, has asked us to do. As I say, I cannot think of a better committee to look at that.
There is one thing my noble and learned friend Lord Ackner said which I feel I should not let pass without challenge; that is, the suggestion that if leave to appeal were to be required and if resources were scarce, the Lord Chancellor would either himself or through his officials direct or indicate to the judges how they should discharge their judicial functions. I regard it as one of the fundamental responsibilities of the Lord Chancellor to safeguard the independence of the judiciary in the exercise of its judicial functions and to safeguard the independence of the judical process. That is one of the aims of the Lord Chancellor's Department as set out in our departmental strategy.
I personally would not for a moment tolerate myself doing such a thing. I never contemplate the idea of telling anyone how to exercise a judicial function. Of course, the Court of Appeal is entitled to direct people at lower levels as to how they should carry out their judicial functions and those at lower levels have a duty to obey those instructions. However, I am talking about the Lord Chancellor, not sitting in any appellate court, in a situation where resources are scarce, directing that leave to appeal should be granted in fewer cases. That would be utterly wrong. I would not think of doing that myself and I would not tolerate that being done by any official on my behalf. Certainly as far as I know that has never been attempted. I should take very

985
strong action if it were ever suggested to me that that had been done.
The judges and the judges alone would have responsibility for deciding whether or not to grant leave. As my noble and learned friend the Master of the Rolls made plain, the only criterion for granting leave would be whether there was any real prospect that the case would be successful. That would be the only consideration. If the case was hopeless, leave would not be granted. If the case had some prospect of success, leave would be granted. I understand that to be the criterion. I commend this clause to the Committee, subject to the undertaking which I gave to bring forward an amendment on the lines which I indicated at the next stage of the Bill.
Lord Hailsham of Saint Marylebone: As the matter has been referred to, I should like to endorse what my noble and learned friend has just said about the function of the Lord Chancellor. Not only do I accept from him that he would never act in the way suggested but I assure the Chamber that I never so acted; nor has anybody with my permission ever so acted. I can also say with confidence that my father, who was twice Lord Chancellor, would never have acted in that way; nor has any other Lord Chancellor to my knowledge.
Clause 7 agreed to.
Lord Rippon of Hexham Lord Rippon of Hexham moved Amendment No.50A:
Before Clause 8, insert the following new clause:
("The Construction Division
—(1) There shall be created an additional division of the High Court ofJustice to be known as the Construction Division.
(2) The Construction Division shall consist of judges nominated under section 68(1)(a) of the Supreme Court 1981, to deal full-time with official referees' business in London.
(3) Judges of the Construction Division shall be known as Construction Judges.
(4) Schedule 1 to the Supreme Court Act 1981 (which deals with distribution of business in the High Court) shall be amended by adding at the end —
"Construction Division
4. To the Construction Division are assigned all causes and matters constituting "official referees' business" within section 68(1) of the Supreme Court Act 1981, which are commenced in or transferred to the Division."").
The noble Lord said: This amendment relates to the role and status of official referees. Official referees' courts form a special group of courts within the High Court. They have their own registry in which all steps in actions, from issues of writs and originating summonses to enforcement proceedings, can be taken and court records are kept. They are manned by six London official referees who are assisted by 16 official referee recorders and, from time to time, by visiting judges. I am told on most days there are nine or ten official referee courts sitting.
The official referees' courts are concerned, as the Committee may know, mainly but not exclusively with cases relating to the construction industry, which is, by most criteria, the largest industry in the United Kingdom. Of course, it undertakes much work abroad.
The volume of work undertaken by official referees has grown continually since the early 1970s and in most recent years has increased by about 15 per cent. a year. The cases tried in length, complexity and in the amounts of money involved are among the largest dealt with by the High Court. In addition, official referees hear applications for leave to appeal and appeals from arbitrators in construction cases; they also sit as arbitrators.
I suggest that at the present time the position of the official referees' courts is wholly anomalous. Although they form a de facto division of the High Court, they are not legally recognised as such. Their registry is theoretically composed of parts of the Chancery Division's registry and the Queen's Bench Division central office. Their judges, although selected direct from the Bar to be London official referees and forming a special category for the purposes of judicial salaries, in law are circuit judges. Therefore the official referees feel —my noble and learned friend the Lord Chancellor may be aware of this—that there is a tendency for the official referees' courts to be either overlooked or ignored. They are of course proud of their history. The description "official referee"' dates from 1873, but it really gives to the layman (and many lawyers themselves) no indication of the nature of the work which is performed by the official referees' courts.
I understand that the Official Referees' Users' Committee, which consists of representatives of the professions and bodies engaged in the construction industry, as well as of official referees, the Official Referees' Bar Association and solicitors, included in their proposals for the Civil Justice Review that the official referees' courts should be made a separate division or a specialist court within the Queen's Bench Division. I understand —and this is on the record —that the Civil Justice Review final report, although it recognised the official referees' courts as specialist courts within which proceedings should be commenced initially, did not make any specific proposals in answer to the representations made.
The amendment which I propose would provide proper legal status for the courts consistent with their importance, particularly to the construction industry, though not exclusively. I am also informed that adoption of the amendment would not involve any public expenditure. I hope therefore that my noble and learned friend the Lord Chancellor will carefully consider the views of the official referees, even if he cannot give a final answer today.
There may well also be a better name for a new division than "Construction Division", though that is one they themselves suggest. However, since the creation of a new division of this kind would require primary legislation, this seems to be the only time when it is appropriate to put forward these views and suggestions. I beg to move.
7.15 p.m.
Lord Hacking: Through no fault of the noble Lord, Lord Rippon, or myself, the noble and learned Lord has had a very short time in which to consider this amendment as part of the Bill. It was tabled only towards the end of last week. Not only is the noble

987
and learned Lord in that difficulty; as already identified by the noble Lord, Lord Rippon, the Civil Justice Review, while recognising the specialist role of the official referees' court in paragraphs 105 and 118, did not give detailed consideration to that court. The Civil Justice Review, for example, gave detailed assessment and review of the Commercial Court in chapter 11, paragraphs 754 to 817. That is not to criticise the Civil Justice Review, whose task was almost endless, but to state the fact that the noble and learned Lord is not assisted in this matter by the Civil Justice Review.
In the circumstances therefore I ask the noble and learned Lord if he will kindly listen to this debate, as I am sure he will because he always carefully listens to our debates, listen to the contributions which are made and give himself an opportunity to see some of the written representations which have been made to his department. For example, a long letter of some eight pages in length was written to his department by the then senior official referee, Judge Lewis Hawser, on 23rd July 1987. More recently, and since the publication of the Civil Justice Review, a discussion paper has been prepared by a working group of the Official Referees' Users' Committee on 29th July 1988. If the noble and learned Lord will give himself that opportunity to consider both what is said in this debate and the written representations, perhaps he will then kindly give the matter further consideration and defer reaching any decision during the debate this evening.
As the noble Lord, Lord Rippon, told the Committee, the official referees' court represents one of the specialist functions of the High Court. Indeed, as identified in the Civil Justice Review in paragraph 105 there is generally a movement in the High Court to provide specialist courts: for example, judicial review, special appeals in revenue cases, Admiralty cases, commercial cases and intellectual property. Indeed, it could be said that most of the work of the Chancery Division of the High Court of Justice is highly specialised work. A point made in the Civil Justice Review is that this is perhaps a feature which distinguishes the High Court from the county court.
Of those courts which have had particular success in their specialist role there can be named the Divisional Court —judicial review through the Crown Office List —the Commercial Court, in which the noble and learned Lord, Lord Donaldson, played a significant role when he was the senior judge in that court, and the court to which I particularly draw the Committee's attention, the subject of this amendment, the official referees' court.
As the noble Lord, Lord Rippon, has already told the Committee, the official referees' court takes virtually all the construction industry disputes which are heard in the High Court. It has therefore become de facto a construction specialist division sitting in the High Court in its new premises in St. Dunstan's House, Fetter Lane. Again, as the noble Lord told the Committee, this court deals with very large sums of money, almost invariably six-figure claims. The litigation cases before the official referees' court are
988
also very complex and lengthy. This comparison is not in any way scoring points because the virtue of efficiency of the Commercial Court is widely recognised but the caseload of the official referees' court is, I am told (I see that the noble and learned Lord is frowning at me) marginally more than the caseload of the Commercial Court.
Lord Donaldson of Lymington: Although it is not on my own front, perhaps I may ask a question. Unlike the noble Lord, Lord Mishcon, I do not know the answer. I understood that the official referees wanted to become High Court judges. I understand though that that raises all sorts of issues. However, this amendment would leave them as circuit judges because Section 68(1)(a) of the Supreme Court Act refers to "Circuit judges". If that is so, what is the point of the amendment?
Lord Hacking: If the noble and learned Lord will bear with me I will explain more of the reasons for the amendment. At this stage what is being sought in this amendment is that the official referees' court should be in a separate division within the High Court of Justice, though the presiding judiciary of it will remain circuit judges.
The further reasons which I advance for the proposition that a construction division of the High Court be created in this manner arises, as the Committee has heard, out of the great increase in the number of construction disputes which are heard in London. That has arisen out of the increase in negligence actions, in particular involving construction and engineering activities. More than that, certain reforms have taken place in the official referee's court which have made it a more attractive forum. It has had the ability since 1980 to award interim payments, and cases now to start in the official referee's court.
One of the features of the official referee's court, like the Commercial Court, is that it has been an innovative court. It has a users' committee as does the Commercial Court. It divides up actions and orders the trial of preliminary issues. Such practice is attractive to litigants as it isolates issues of law for determination. It has also been innovative in such matters as exchange of witness statements and the meeting of experts. With both those innovations the court took it upon itself to persuade the parties on a consensual basis: now it is included in the Rules of the Supreme Court.
The decisions of the official referee are widely reported in specialist law reports, journals and periodicals concerned with building and engineering law such as the Building Law Reports and the Construction Law Journal. As the Committee has heard, the court also performs the function of acting as arbitrators and takes appeals from arbitrators which are referred to it.
I hope that that gives the Committee an understanding of the role of the official referee's court and how it has become a de facto division of the High Court in construction matters. The role of the official referee's court has even been recognised by such bodies as the Review Body on Top Salaries which in its report of 1988 states:

989
"The work of the London Official Referees, normally six in number, is of a specialised nature. The cases concerned are usually lengthy and technical disputes concerning civil engineering contracts which involve the prolonged examination of documents and schedules, and the assessment of expert evidence.… The Official Referees are required to acquire and develop skills and experience in a highly specialised area of law dealing with issues involving complex technical evidence".
Notwithstanding that, for the reasons advanced by the noble Lord, Lord Rippon, they remain in this anomalous position where they do not have the status of a division of the High Court, nor the status of High Court judges. For all those reasons I ask the noble and learned Lord to give further consideration to the amendment. It has the support of the Law Society and of the Official Referees' Bar Association.
Lord Lane: I confess that I do not understand the objective of the proposal. No one doubts that the official referees do a wonderful job of work. They relieve the judges of the High Court of a number of cases which are extremely time consuming. That leaves the judges of the High Court free to do work that is possibly more intricate and more difficult. No one queries that the official referees have all the qualities that the noble Lord, Lord Hackling, has enumerated.
However, this proposal adds absolutely nothing to the present situation. The official referees are now heavily remunerated thanks to the Review Body on Top Salaries, much to the anger of a large number of other ordinary circuit judges. They are organised as though they were a division of the High Court. The official referees are not High Court judges. I now understand —I had misunderstood to begin with —that they do not intend that they should become High Court judges. They are organised under the aegis of their own supremo, Judge Lewis Hawser. They are under the charge of a High Court judge, Mr. Justice Garland, who is answerable to the Deputy Chief Justice and myself. To that extent they have all the resemblance of an ordinary division of the High Court.
Why this proposal is made I cannot understand. If it is to change the name from official referees to construction judges, then perhaps everyone might have saved themselves time.
The Lord Chancellor: I fully appreciate the work of the official referees. I had the honour of opening their refurbished premises at St. Dunstan's House. When I was in practice I used to do quite a lot of work in the area in which the official referees work in England, although mine was, generally speaking, in Scotland.
I say first to my noble friend Lord Rippon that primary legislation is not necessary for this purpose because there is power in the Supreme Court Act for Her Majesty on a recommendation of the judges mentioned —I shall come to them in a moment —to direct any increase or reduction in the number of divisions of the High Court. The judges are the Lord Chancellor, the Lord Chief Justice, the Master of the Rolls, the President of the Family Division and the Vice-Chancellor.
Secondly, I had not understood the amendment properly. I thought that the intention in subsection
990
(2) of the amendment was to make the present judges immediately judges of the High Court. In other words, the judges of the Construction Division of the High Court would be judges at presently nominated under Section 68(1). If that is not the purpose, as my noble friend the Lord Chief Justice has stated, I am not sure what this amendment Is intended to deal with. If it is to change the name to construction judges, I share the doubt of my noble friend Lord Rippon of Hexham as to whether a Construction Division of the High Court is a particularly attractive name for them. In view of the amount of new building that may be required, I believe that it is open to some misinterpretation. From that point of view, I doubt whether that is good.
I shall certainly consider further the arguments that have been put forward. However, I believe that the present situation is satisfactory. At the moment I can see no advantage in giving effect to the amendment.
Lord Rippon of Hexham: As we have heard this afternoon, the Master of the Rolls is expert in collecting voices. The voices that he collects have a spokesman in this Chamber. The official referees have done their best to collect the voices and have asked me to present their point of view to the Committee. It is clearly a matter of some interest and one would hope that brothers in law would understand their concern about their role and status. The amendment does not refer to their pay. As the Master of the Rolls suggests, it may be that they wish to be High Court judges. It may be, as he understands it, that that might be the right way of proceeding. My noble and learned friend has explained that primary legislation is not necessary, and has stated that he will consider the position. I therefore ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Viscount Ullswater: This may be a convenient time to break for dinner. I therefore beg to move that the House be resumed. In moving the Motion perhaps I may suggest that the Committee stage begins again at 8.30 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Co-operative Development Agency (Winding up and Dissolution) Order 1989
7.30 p.m.
The Earl of Strathmore and Kinghorne The Earl of Strathmore and Kinghorne rose to move, That the draft order laid before the House on 30th November 1989 be approved [2nd Report from the Joint Committee].
The noble Earl said: My Lords, the Co-operative Development Agency was established by the previous government under the Co-operative Development Agency Act 1978 with a wide remit,
"to promote the adoption and the better understanding of co-operative principles and to represent the interests of the co-operative movement".
This legislation followed upon the recommendations of a working group of representatives of co-operative interests. One of the recommendations of the working group's report was that the Government should bear the cost of setting up a co-operative development agency and running it for a period of three years, a cost which was expected to be £900,000. At the end of three years it was expected that the CDA should no longer be dependent on public funding and would rely upon contributions from the co-operative movement and income from charging fees. Despite the wide remit provided by the legislation, the board of the CDA, under the chairmanship of the noble Lord, Lord Oram, decided to concentrate on the worker co-operative sector, as strong sponsoring bodies already existed in the consumer, housing and agricultural sectors.
The CDA has had success both in promoting the co-operative concept and in encouraging the setting up of worker co-operatives, and of local advisory bodies to help them. Due to its efforts, and those of the other bodies involved, more than 1,500 co-operatives were created.
The previous Government's plans for the agency to become self-financing, however, were not borne out by experience. The present Government extended the life of the agency through the 1981 CDA order, which allowed the agency to take up the further £600,000 provided for under the 1978 Act. This limit was raised to £3 million under the Co-operative Development Agency and Industrial Development Act 1984. Through the 1984 legislation, the Government also gave the CDA new powers in the areas of training, joint ventures, and administering loans and grants. These new powers were intended to help the CDA to widen its role and cease its dependence on the public purse. But the CDA has been unable to establish self-sufficiency and has had to rely on government grant in every year since its inception.
With the ceiling of £3 million set in the 1984 Act due to be reached around the second half of 1990, the Government needed to decide whether to extend the life of the current CDA. In 1988 the then Minister with responsibility for small firms, Mr. John Cope, asked the chairman of the CDA to present proposals for the agency's future. The CDA's proposals suggested that there was no major continuing role in promoting co-operative development and that the agency might in future concentrate on employee participation and employee share ownership through ESOPS.
The Government considered the CDA's proposals very carefully. We accepted the case that the work of supporting and promoting co-ops could be carried out by other organisations at local level, but could not accept the argument that the CDA's role should extend to ESOPS. There is already considerable private sector activity in this area and we felt it would not be appropirate to give such responsibilities to a statutory body.
In January 1989 the Department of Employment issued a consultation letter to organisations in the co-operative movement with a proposal that the
992
CDA should be wound up. The responses showed a wide range of views on what support the Government should give to co-operatives, and were evenly divided on the question of continuing to support the CDA. Organisations which supported the proposal for closure were mainly in the worker co-operative sector. There was a general impression in these responses that the CDA had done its job, and that there was now a well-established network of local co-op support bodies. They therefore saw no continuing need for a statutory body to promote co-operative development.
We accordingly asked the CDA to prepare plans for its closure. These propose that the agency should cease functioning by the end of September of this year. Final closure, following a three-month winding up period, will be completed by the end of December 1990. The CDA has contacted organisations supporting co-operatives, setting out details of its current activities and seeking views on those which other organisations might want to take on after it closes. The CDA has chaired and provided the secretariat for the co-operative inter-sector forum and has been active in setting up a study group from within the forum to make recommendations on the continuation of a representative body for the movement as a whole. The Government have said that they are prepared to consider an application for financial support towards the costs of setting up and running such a body, provided that this funding is on a short-term, pump-priming basis and is at least matched by contributions from the co-operative movement.
I should like to record the Government's appreciation of the work of the board members of the CDA, in the early days under the leadership of the noble Lord, Lord Oram, and more recently his successor, Mr. Ralph Woolf. The board has been ably supported in its work by the two directors of the agency, Dennis Lawrence and George Jones, and their staff. The decision to wind up the CDA does not mean that the Government do not support the co-operative concept. Co-operatives have an important role in the Government's housing and agricultural policies, and co-operative ideas continue to be important in small firms and enterprise. We feel that co-operatives may have particular potential in carrying enterprise and business attitudes into some groups or areas as an alternative to conventional forms of business. The Minister of State has said that the Department of Employment is prepared to consider applications for support for innovative co-operative projects.
In conclusion, we are happy to support the co-operative concept and are prepared to contribute to the funding of a representative body and towards innovative co-operative projects. We do not, however, see a continuing need for a statutory body to promote co-operative development, and we propose that, having done its work, the Co-operative Development Agency should now be wound up. I beg to move.
Moved, That the draft order laid before the House on 30th November 1989 be approved [2nd Report from the Joint Committee]. —(The Earl of Strathmore and Kinghorne.)
Lord Graham of Edmonton: My Lords, tonight we all play an unworthy part in killing off the Co-operative Development Agency. In the totality of British life and in the management of the economy, we are used to talking in terms of millions of pounds and sometimes of billions of pounds. We are dealing here with the demise of a body which makes a call on the Exchequer of perhaps £200,000 or £300,000 and which, in all its 12 years of life, has made a call on the taxpayer of between £3 million and £4 million. That is pretty small beer. Some of us not only helped at its birth but connived to bring about its conception. We are entitled to be sad. Yes, I am even more mad than sad at the waste of good money and at the mindless vandalism which the destruction of the CDA epitomises.
Like the Minister tonight, I have read the account of proceedings in another place. I was impressed by the fairness of the Minister, Mr. Tim Eggar. He delivered the coup de grace to the CDA, sustained with a number of logical points which the noble Earl used in his speech tonight. I took some heart when I studied what he had left us with. I shall comment later on the positive points that the Minister made, and I acknowledge that we still have something left. It is not much, but beggars cannot be choosers.
The burden of my complaint is more the unfairness and even cynicism and hypocrisy of the Government when they deal such a savage blow to co-operative enterprise in the form of the Co-operative Development Agency while sustaining and supporting other forms of enterprise which use the co-operative ethic as a central pillar of their philosophy. The Government, the Minister tonight and his ministerial colleagues in another place have time after time lauded the co-operative idea and professed support for the co-operative sector, yet they demonstrate that support in a philistine way. It makes no sense to me or to thousands of others outside.
Funding for the CDA since its inception compares badly with what has been provided since 1967 for agricultural co-operatives. The co-operative development division of Food from Britain had an operating expenditure for 1987–88 of £559,508. This covered advisory and legal services. In that year the division formed seven marketing co-operatives and considered 78 grant applications. The cost of these to public funds was £819,000. Under European Community regulations, 15 agricultural projects were grant-aided to a total of £1,659,366. EC grants worth £373,000 were also made to forage groups. Moreover, 26 grants to fruit and vegetable producer organisations were made for launch aid totalling £678,135.
No one wishes to see less aid for agricultural co-operatives, but there are large and powerful regional agricultural organisations of many years' standing in England by comparison with the small and relatively new workers' co-operatives which resulted from the formation of the CDA in 1979. I speak for many when I tell the Minister that we find it strange that a modestly funded body like the CDA is to be wound up while a well-established and financed body, under the wing of the Ministry of Agriculture, Fisheries and Food, is to continue.
994
When a Labour Government established the CDA in 1978, it was hailed by all parties as a significant measure. For far too long, this country poured its economic energy into two prime sectors; namely, the private sector and the public sector. In many countries, a third force was flourishing—the co-operative sector. Here in Britain a measure of support for the values enshrined in the co-operative idea resulted in the CDA receiving all-party support. It was never meant to be other than a catalyst for co-operative ideas, a body to stimulate and encourage others —that is, individuals, local authorities, trade unions and private businesses —to turn to co-operative solutions for answers to their problems. It worked, although perhaps too well for the liking of this Government.
The time of the 1980s substantially has been the decade of the CDA. Therefore, we must set its achievements alongside the circumstances and challenges of that time. On less than a shoestring, it has a remarkable record of positive achievement. It has an outstanding record in, for instance, establishing marketing co-operatives. Indeed, 63 groups had been formed by 1989, introducing the co-operative concept to traditional business and improving the competitiveness of small businesses, thus enabling them to compete internationally.
In 1989, 40 projects were at varying stages of development. They cover a wide range of industries including garment manufacture, printing, medical equipment supplies, ship repair and hotels and tourism. The CDA has worked up the concept of group marketing until it has succeeded in practice. What a splendid gift to British employers and employees. What a waste to condemn those innovators to the scrapheap of history!
As the Minister said, perhaps it has been in the sphere of working co-operatives that the CDA has had its most outstanding achievement. From virtually a standing start, more than 2,000 worker, neighbourhood, community and marketing co-ops were registered and actively trading in 1989. That is a record of which I am intensely proud. It fully justifies the pioneering work of many. The noble Lord, Lord Callaghan, must be grateful, for he was wholly behind the creation of the CDA. I can tell the Minister that when I discussed tonight's business with him, he was bitterly disappointed.
Sitting behind me today as I speak is my noble friend Lord Oram. He was the first chairman of the CDA. For over 30 years before it was established he inspired the concept by his writings. As I said, he was its first chairman and he will no doubt speak for himself. I venture to suggest that he will be as angry and dismayed as are the rest of us.
The Minister was right to pay full and generous tribute to other individuals. I refer to Mr. Ralph Woolf, who served for a long time as chairman. I should also refer to the inspired choice of George Jones as the director of the CDA. Together they gave the CDA status, stature and purpose. Much of what has been achieved must be owed to them and I am personally truly grateful.
Where do we go from here? No explanation has been forthcoming from Ministers, either in this

995
House or in another place, to justify the cruel, senseless murder of a fine initiative in the sphere of job creation and of economic regeneration. If ever an instrument earned the charge that it owes more to dogma than it does to realism, it is the order which we are debating this evening.
The Minister of State in another place, Mr. Eggar, has consulted widely on the way forward. I pay tribute to him and to those endeavours. We have to build upon them. In essence, having taken quite the wrong decision to abolish the CDA, and having made speeches in both Houses paying warm tributes both to past performance and to the future potential for co-operative expansion, Ministers wish to wash their hands of this distasteful third arm in our economy —that is, co-operative enterprise —as quickly and as cleanly as possible. The Co-operative Forum is to be the vehicle to take this forward. The scenario poses many questions. I believe that the House, and the wider co-operative movements, are entitled to some answers.
In cols. 1041 and 1056 of Hansard of 10th January the Minister of State said that funds to establish a new co-operative forum would be forthcoming from the Government, to match pound for pound funds assembled by the co-operative movement. That is an invitation which was repeated here tonight by the Minister. However, can we be told how much is in the Minister's mind? For example, are we talking about five, six or seven figures as a contribution from the Government towards this activity?
Both the columns I mentioned referred, as did the Minister here tonight, to a short-term pump-priming basis. How long is short? Are we thinking in terms of months or of years? Further, in both columns, and again tonight, Ministers said that they will support innovations. That comment is to be found in col. 1042 of Hansard of 10th January. What does the support of innovations mean? Does it mean funds to establish secretarial support for the forum and in addition moneys for projects proposed by the forum?
Throughout the speeches made by Ministers they have laid heavy stress on the role of TECs. It is said that they will be encouraged by Ministers to look at co-operative solutions to inner-city problems. The Minister in another place declined to lay a duty to do so, relying upon a word in the ear of the chairman of the TECs to encourage co-operatives. I should like to make a better suggestion to the Minister tonight. Why not ensure that co-operative solutions are positively examined and evaluated by putting men and women with strong co-operative links on to the governing board of every TEC? It is a simple but direct way of assuring doubters that the Minister says what he means and means what he says. In this connection I assure the Minister that names can be supplied very quickly.
Finally, will the Minister clarify the legislative status of the Co-operative Development Agency Act 1978? This order winds up the agency. Does that leave the 1978 Act on the statute book.
As I said, I am more sad than mad for I genuinely believe that a good idea has been throttled in pursuit of the Government's ideological dogma. There are
996
many ways in which co-operative solutions can resolve the problems of the marketplace and of the workplace. It is quite imcomprehensible that for the tiny sums involved the Government have thrown the onus for carrying these forward on to volunteers, initiatives by hard-pressed local authorities and other co-operative institutions, while at the same time funding co-operative activity in other spheres of our economic life with millions of pounds. It does no credit to the Government or to Ministers. They should both be thoroughly ashamed of this spiteful action.
7.45 p.m.
Lord Rochester: My Lords, from these Benches I should like to thank the Minister for the way in which he introduced the order. It is clear, whether we like it or not, that the Government are intent upon dissolving the Co-operative Development Agency. However, the support of my party has been so keen and prolonged, notably by my noble friend Lord Grimond, that I do not feel I can let this occasion pass without comment.
The Government stressed that in 1988 it was the CDA's view that the task of promoting and supporting co-operatives could be carried out at local level. They also claim that a factor which weighed heavily in their ultimate decision to wind up the agency is that the responses to the Department of Employment's consultative letter of January 1989 showed that those supporting the proposal for closure were largely in the co-operative sector.
I am in no position to question that. My concern is to ensure that in the dissolution of the CDA the bodies which are called upon to fulfil its functions are in a position to do so adequately. In that connection, when the order was introduced in another place last week, reference was made to the training and enterprise councils, which the noble Lord, Lord Graham of Edmonton, has mentioned, and to local CDAs; but local CDAs cannot be said to cover the whole country. Where they operate, they are largely dependent upon funding by local authority finances. How can we have confidence that that funding will continue?
As for TECs, they have yet to prove their worth, even in the matter of training. It remains to be seen how they will fill the role the Government seem now to be assigning to them of assisting in the formation of co-operatives. Led by employers in the private sector, how are they to secure the knowledge and advice needed to support co-operative ventures? Is there any reference in the TEC tender documentation to the need for development of co-operatives? Perhaps the Minister will respond to that question when he replies. The national CDA, as I understand it, is at present under an obligation to encourage co-operatives. Will that obligation be transferred to the TECs? Evidently not, for all the Government have been able to say so far is that the councils will be expected to assist in that way.
I do not want to speak at length, but those are some of the misgivings that we have about the forthcoming dissolution of the CDA. It is for the Minister to dispel them if he can.
Lord Oram: My Lords, I support my noble friend Lord Graham of Edmonton in his severe criticism of the order. Some 12 years ago he and I were happy to be in at the birth of the CDA. We are correspondingly sad this evening to be present at its death. It would be better if, instead of passing the order, we reversed the famous words of Mark Antony of old, saying, "We come not to bury the CDA but to praise it". I say that because, as was said by the Minister and my noble friend, I was privileged to be the first chairman of the CDA and to help launch it on a decade of constructive work for co-operative development.
In many ways there is great potential in this country for co-operative development —for the development of a third major sector of the economy, not the public sector, not the private sector, but co-operative activity. Of course we have already a powerful consumer-controlled movement in retailing, wholesaling, insurance and banking. We are just at the beginning of developing co-operatives in fields which have been neglected in this country, the country where co-operation was born. I refer to housing co-operatives, credit unions, farmers' co-operatives, workers' co-operatives and community co-operatives. In all those areas seeds have been sown throughout the past decade, partly,though not exclusively, under the influence of the CDA. Particularly successful has been the growth of workers' co-operatives, which have increased from some 200 when I became chairman to some 2,000 today. Much of that growth is to the credit of the Industrial Common Ownership Movement (ICOM), whose work will of course continue after the CDA is gone.
The sad thing about the Government's decision to bring in the order is that just when those seeds are showing signs of taking root they are being deprived of one of the organisations which can nurture them.
We have in this country a lopsided co-operative movement —powerful, as I said, in retailing, wholesaling, banking and insurance, but weak in those other areas of co-operative organisation that I have listed. Although they are weak, their potential is great. The effect of the order will be largely to deny them the fulfilment of that potential.
In other countries those other co-operative movements have not been neglected. If we look at Sweden we see a comprehensive co-operative movement, including successful and widespread housing co-operatives; if we look at North America, both the United States and Canada, we see the successful credit union movement, which provides credit for its members on terms far more favourable than are available by other means; if we look across the Channel to France, we find a large network of successful agricultural co-operatives. Workers' co-operatives in northern Spain are a well-known success story in the Mondragon complex; and in Italy workers' co-operatives, particularly in the construction industry, are major enterprises. Among their many achievements, they are helping to rescue Venice from the invading sea. Incidentally, even gondoliers have their co-operative society.
998
Faced by all those achievements by co-operators in other countries, we are entitled to ask: why are co-operatives in those other fields so weak in Britain? Secondly, we are entitled to ask: what should be done? In my view what ought not to be done is to wind up the CDA. Instead of being negative, as the order proposes, we should be positive. We should look for expansion rather than contraction. Unfortunately, it is now too late to ensure the continuation of the CDA; but, as my noble friend Lord Graham has said, we can welcome the Government's willingness, as indicated in another place, to consider providing money for a new institution —a forum in which the various sectors of the co-operative movement can be brought together as a kind of think-tank in which they can share experiences and co-ordinate their promotional efforts. The Minister has made it clear that that is conditional upon the movement providing matching funds. That I believe to be a wholly acceptable condition. I hope and believe that discussions can proceed whereby that condition can be fulfilled.
In order to help co-operatives achieve their potential in all the fields that I have mentioned, we need a new partnership —a partnership between the consumer-co-operative movement and the Government. Therefore the proposal for Government funds matched by co-operative funds is a welcome, though modest, compensation for the loss of the agency. I very much hope that early progress along these lines can be achieved and that the Minister will answer favourably the questions that my noble friend has asked.
8 p.m.
Lord Taylor of Gryfe: My Lords, I am moved to participate in the debate tonight for a variety of reasons. I had my first business experience as an employee of the co-operative movement. Like the noble Lord, Lord Graham of Edmonton, I was rewarded in due course with the highest honour that the co-operative movement can award. I became chairman of the Co-operative Congress. Therefore I share with the noble Lord, Lord Graham, a sense of dismay and disappointment at the proposals which are now before us. I understand that it is within the conventions of this House that we do not vote against the proposals, although I feel inclined to do so. In the House of Commons the vote on this proposal was 191 to 180, which suggests that we might be tempted to proceed with a vote in this House and give the House of Commons another opportunity to review its decision.
Like the noble Lord, Lord Oram, and others who have spoken, as a mixed economy man I am attracted to the idea that we ought to have some organisation which is committed neither to the capitalist ethic nor to the idea of large state enterprise. The contribution of the co-op gives the individual a role in society, whereas in the large organisations —be they state-run or the large industrial conglomerates —the individual plays little role in making decisions as a shareholder or an employee.
The co-op is designed to bring the owners, employees and customers of the business into the area of decision making and directing their own

999
affairs. I regret to say this to the noble Lord, Lord Graham of Edmonton, but it is a sad fact that the democratic basis of the co-op in this country, in the large co-operative societies, has somewhat diminished since the days when I was actively involved.
I am attracted by the Minister's offer to give us the opportunity of continuing this work at least on a transitional basis. I hope that the co-operative movement will respond to the idea of contributing to the forum. I hope it will embarrass the Government by the pound-for-pound subscription and thereby ensure a very substantial commitment by the Government to the new co-operative forum.
Perhaps I may make an appeal to all our friends who support the co-operative idea. The noble Lord, Lord Graham of Edmonton, has made the point that an all-party appeal is being made to the Government and I regret the exclusiveness of the co-operative as affiliated to the Labour Party. I recently wrote by invitation an article on trading policy in a co-op journal. The following week the editorial of the Co-operative News said that Lord Taylor had written on the matter of trading policy, "But we don't need any advice from Members of the SDP". Similarly, the noble Lord who spoke from the Liberal Benches has assured the House of the continuing interest of the Liberal Party in the affairs of co-operative development. I suggest to our co-operative friends in the Labour Party that in making their appeal for support they should not be isolationist.
There are two things which I hope for. I hope that we shall respond to the ideas of the forum. Further I hope that we shall show the Government that we mean what we say tonight in this House about our commitment and that we shall do so through our existing co-operative organisations. I feel slightly humiliated, I must confess, in asking the Government for handouts to support the co-operative idea. When I look at the resources of the co-operative movement, the total retail sales of co-ops last year in this country were £5,768 million. The assets of the retail societies were £944 million —nearly £1 billion of assets. At the pinnacle of all this the Co-operative Insurance Society had a premium income of £894 million and assets in excess of £3 billion.
I think that through our existing co-operative organisations we ought to say, "Yes, we believe in the co-operative idea. All right, the Government are withdrawing their support for the Co-operative Development Agency but we will show them, we will be proud, we will support and stimulate co-operative development by the establishment of funds to replace the Government's support, but from our own resources". I think that that would do us a lot of good and I hope that the co-op will feel able and be proud enough to respond in that way.
Baroness Nicol: My Lords, my noble friends on this side and others have made our feelings very clear regarding the dissolution of the CDA. I do not propose to go over the matter again except to say that I share their dismay and disappointment at the situation in which we find ourselves this evening.
1000
I have two questions to ask and two comments to make. Perhaps if I ask the questions first I may receive an answer. Can the Minister say how many jobs have been created by the activities of the Co-operative Development Agency? How much has each job cost the taxpayer? If the Government cannot give an answer it means that they have not even worked it out. If so, I fear that we must be even more convinced that the reasons behind this winding up are dogmatic rather than practical.
The two comments which I wish to make are, first, to remind your Lordships that worker co-operatives do not fail as often as small businesses. There is a very good reason for this, well known to most of us. The other point that I wish to make is that co-operatives are truly local. When there is a good, workable system of worker co-operatives in a society it brings stability to that industrial base, particularly in small communities, which is simply not available through any other means.
It is a great shame that we have reached this stage. The Co-operative Development Agency has been responsible directly and indirectly through local agencies for setting up some wonderful job opportunities in local communities. I am extraordinarily sad to see it go.
Lord Blease: My Lords, I wish to follow the example set by my noble friend Lady Nicol and put a question before I make my comments. Will the Minister provide information relative to the second paragraph of the preamble to the statutory instrument? It says:
"Whereas the Secretary of State has consulted with persons appearing to him to represent the interests of the co-operative movement and with such other persons appearing to him appropriate by virtue of section 1(3) of the Co-operative Development Agency Act 1978(b) … as required by section 3(5) of the 1984 Act".
Would the Minister care to provide the House with the information as to who those persons were and whom they represented?
I feel that this is an opportunity for me to say that in Northern Ireland I speak as a member of the board of management of the Northern Ireland Co-operative Development Agency. That body has been supported by the separate legislation provided for it. I realise that that legislation concerns Northern Ireland and is separate and distinct from what the Minister is to deal with tonight. That body has recently been supported by the Northern Ireland Department of Economic Development and by the international Irish fund. It was supported on the understanding that it would enable some developments to take place in Northern Ireland on a co-operative basis.
I wish to thank my noble friends Lord Graham and Lord Oram for the help and the advice that they have given and for the manner in which they participated in the founding of the Co-operative Development Agency in Northern Ireland. The agency has had its problems and its difficulties but it is proving itself in the Northern Ireland context in a manner which is perhaps difficult to understand in the context in which we are discussing the agency this evening. It is helping communities to come together and to build up relationships and values

1001
which have sadly been eroded over the past 20 and 30 years in Northern Ireland.
Another area for development arises out of the privatisation of transport. This has allowed community transport arrangements based on community development to be promoted. Other initiatives have been developed in broadcasting, the arts, drama, house repairs, entertainment and the theatre. Those are a number of areas where such developments were practically unknown at one point. Those initiatives have been developed on a community basis through the instrument of the Northern Ireland Co-operative Development Agency. I am not saying that great heights have been reached, but here is an example of something that is flourishing in the context of Northern Ireland. Sadly, however, the provision that we are discussing tonight will not give us any encouragement to take further steps. Finally, I wish to know who was consulted in this matter.
8.15 p.m.
The Earl of Strathmore and Kinghorne: My Lords, I have listened intently to the points which have been made. I shall now try to address the main concerns that have been raised. One of the questions that has been asked is why, if the CDA has done an acceptable job and if the Government have valued its services, is its life not being extended again. However, the situation now is not the one we had in 1984 when the CDA was allocated further public money to enable it to achieve the original hopes of its proposers that it would become self-reliant. After over a decade of trying, it was clear to us that the CDA would not achieve that aim. Thus the question arose of whether statutory functions would still be needed in the new decade and of where long-term support for CDA functions should come from. We are clear, as was the CDA board, that the central co-ordinating and representational work of the CDA should be funded by the well established bodies in the co-operative movement if they feel that they have common interests which ought to be represented by a new central body.
We are happy to consider initial assistance, should it be required. More generally, and with reference above all to the CDA's efforts to develop worker co-operatives, we have not changed our view that the existence of almost 100 local advisory bodies, together with enterprise agencies and the new training and enterprise councils, will enable help to be given on the ground where it is needed. There are also national non-statutory bodies with the expertise to give help where a national perspective is required. The advice network is developing to the extent that further funding for the CDA would compel it to duplicate work which could be done by others.
I shall move on to the points raised by noble Lords. The noble Lord, Lord Graham, asked why agricultural co-operatives were better provided for than worker co-operatives.
Lord Graham of Edmonton: My Lords, I did not ask why they were better provided for but why they
1002
were so miserably provided for in comparison with the support for agricultural co-operatives.
The Earl of Strathmore and Kinghorne: My Lords, I shall say a few brief words on agricultural co-operatives. I hope that will answer the noble Lord's point. Agricultural co-operatives are not treated much differently from those in other sectors of the economy other than in the availability of grants under the agricultural and horticultural co-operation scheme. Since the implementation of the common agricultural policy in the United Kingdom, agriculture and horticulture have had to compete with industries in other member states where co-operatives are well established. The agricultural and horticultural co-operation scheme has therefore been aimed at encouraging co-operation, particularly in marketing, so that the United Kingdom's industry could compete on equal terms.
As regards the second point of the noble Lord, Lord Graham, on pump priming, pump priming funds will be those needed in the first one or two years to help an innovative project get off the ground and become self-sufficient; for example, through charges or additional sponsorship. I hope that also answers the noble Lord's second point. We have no limit in mind for individual projects. The amounts notionally available are analogous to the annual sums which the Government might otherwise have spent in maintaining the CDA until 1993. Exact deployment under the industrial development legislation will depend on the number, cost and quality of the projects put forward.
As regards the third point of the noble Lord on legislation my answer is brief. Although the Government are not repealing the legislation, primary legislation would be needed to re-establish the CDA as it stands at present. The noble Lord, Lord Graham, also asked about men and women being put onto the boards of TECs. Members of training and enterprise councils are drawn from local business communities, local authorities, voluntary organisations and other sources. They come therefore from a wide sphere of society.
The noble Lord, Lord Graham, also asked what support for innovations meant. This would cover expenditure on a match-tapering basis on a new co-operative forum but also other innovative projects proposed by the forum or by others.
The noble Lord, Lord Rochester, suggested that certain functions of the CDA will be lost. The Department of Employment will continue to promote co-operatives as a form of enterprise within its general policy towards small firms, independent bodies such as ICOM, regional and local co-operative support organisations and local enterprise agencies best placed to continue the CDA's advisory services. There is also an important new development in the setting up of the training and enterprise councils. TECs will also decide whether support is needed for co-ops within their areas. Co-ops are of course able to take advantage of existing counselling and training available through the training agency. In addition the small firms service will route all inquiries to co-operative and other business organisations.

1003
I hope I understood the second point made by the noble Lord, Lord Rochester, which I believe concerned the funding for co-operative development after the dissolution of the CDA. The Government are always happy to consider support for innovative ideas as part of a general policy to promote enterprise. We are especially keen to promote new ventures which deal with genuine needs, for example, in the inner cities. Each proposed project would be assessed on its merits. We would not wish to give preferential treatment to co-operative enterprises over other forms of small business. We would not therefore consider re-introducing the statutory grants scheme as existed under the industrial common ownership legislation from 1976 to 1981 as no other small business sector has access to such a scheme.
The noble Lord, Lord Oram, asked about the forum. I hope that I can provide the answer that he requires. The Government acknowledge that the forum is a useful platform for the exchange of views and ideas between various sectors of the movement. We are waiting to hear proposals as to how it can be carried on. When the co-operative movement reaches agreement on the constitution of and funding provision for a new representative body we shall be prepared to consider a case for funding.
The noble Baroness, Lady Nicol, asked about job numbers. It is estimated that 1,500 co-operatives have started since 1978 and that 7,500 jobs have been created as a result. It is not possible to say for how many of those the CDA was responsible. There are now more than 100 local advisory bodies, plus ICOM and other national bodies.
The noble Lord, Lord Blease, asked a question in relation to Northern Ireland. The main co-operative bodies were consulted, including the Northern Ireland CDA. I believe that it would be unfair to individual bodies to say what their responses were.
We are changing the nature of our support to reflect the realities. Government support for co-operatives has not diminished in the slightest. Our future policy and support will be focused on developing innovative projects, particulary those with potential for special groups. We want to encourage co-operative means of developing people's talents and capacity for self help, especially for those currently without work. We firmly believe that our strategy will achieve that.
Lord Graham of Edmonton: My Lords, I appreciate the fullness of the noble Earl's replies, which have been helpful. However, does the Minister not understand that neither he nor the proposition has a friend in the House? Everyone who has spoken has spoken against the proposition and has done so with feeling and passion. Does the Minister understand that there are a great many unsolved mysteries as to the future against the background that the Government, as the Minister said in his closing words, profess full support for the co-operative idea?
In view of the blanket opposition to the order before the House tonight I invite the Minister to
1004
withdraw the order and bring it back when further proper consultation has taken place.
The Earl of Strathmore and Kinghorne: My Lords, I am afraid that I am unable to withdraw the order. I hope that I have answered all the questions. I commend the order to the House.
On Question, Motion agreed to.

European Communities (Privileges of the European School) Order 1990
8.23 p.m.
Lord Reay Lord Reay rose to move, That the draft order laid before the House on 21st November 1989 be approved [2nd Report from the Joint Committee].
The noble Lord said: My Lords, in moving the Motion it may be for the convenience of the House if I speak also to the European Communities (Definition of Treaties) (European School) Order 1990 also standing in my name on the Order Paper. I propose to move the second order formally once the first order has been dealt with. I should like to draw the attention of the House to the fact that the orders have been amended to read "1990" rather than "1989", which was the date when they were first laid.
The orders, when made, will enable the United Kingdom to grant to the European School at Culham in Oxfordshire and to its staff the same privileges as those enjoyed by the other European schools and their staff in other EC countries. Thus we can fulfil our obligations under European Community law and under the agreement between the Government of the United Kingdom and the board of governors of the European School signed at Brussels on 18th October 1988.
The European School at Culham was set up in 1978 and is one of nine such schools in Community countries. It educates the children of staff of the Joint European Torus project (JET) who have been seconded from the European Commission, other EC countries and other European centres.
The United Kingdom acceded to the statute of the European School and Protocol on 30th August 1972. Article 28 of the statute provides for the conclusion by the board of governors of the school of agreements governing the treatment of the school. It is in accordance with that provision that the headquarters agreement between the United Kingdom and the board of governors concerning the European School at Culham was concluded. That headquarters agreement is designed to ensure, in accordance with Article 28 of the statute, that the school can operate:
"in a favourable atmosphere under the best possible physical conditions".
The agreement serves the purpose of applying in detail the general provisions on establishment and government of European Schools which are included in the statute and the protocol. It is, therefore, ancillary to the statute and protocol (which are themselves regarded as pre-accession treaties) and therefore comes within the terms of Section 1(3) of the European Communities Act 1972.
It is therefore proposed that the first draft order before the House —that relating to the privileges of the European School —should be made under Section 1(2) of the 1972 Act specifying the privileges which the European School is to enjoy in the United Kingdom. The second order specifies the headquarters agreement under Section 1(3) of the 1972 Act as a Community treaty and provides the basis for the first order. The headquarters agreement sets out the privileges which the European School is to enjoy in the UK.
The principal privileges to be conferred are, firstly, for the European School itself: legal capacity; exemption from taxes on income and capital gains; relief from VAT; exemption from import duties. Secondly, for teachers seconded to the school by member states: exemption from social security legislation; "first arrival" customs privileges; exemption from income tax of earnings, limited in the case of staff seconded by the United Kingdom to the European supplement paid by the school.
Similar privileges have been granted by all other host governments. The locally recruited staff at the school do not benefit from these privileges. The House will note that no one is given any immunity. We are satisfied that the privileges accorded under the draft orders are necessary both to fulfil our obligations in including those reflected in the European Court judgment in the Hurd case and to enable the school at Culham to function effectively.
I commend the European Communities (Privileges of the European School) Order 1990 to the House. I beg to move.
Moved, That the draft order laid before the House on 21st November 1989 be approved [2nd Report from the Joint Committee]. —(Lord Reay.)
Lord Cledwyn of Penrhos: My Lords, we are grateful to the noble Lord for explaining both of the orders to us. The European School established at Culham 11 years ago has, I understand, been a success. I am advised that it has a good reputation and that the children who have attended it have done well.
It is worth noting that it is a fairly large school, with 825 pupils. As the noble Lord said, places are available to students who are not children of employees of the Joint European Torus project (the JET research project on thermo-nuclear fusion) for whom it was initially planned.
It is also noteworthy that the curriculum of the school is provided in five languages—Dutch, English, French, German and Italian. If it was established in Wales, Welsh would have to be added to that list. It should also be noted that there are nine similar schools throughout Europe and that the board of administration of each school has both teacher and parent representatives. I am sure that there are lessons to be learned by our own Department of Education and education authorities throughout the land from those schools as they have developed.
As the noble Lord has said, the draft European Communities (Definition of Treaties) (European School) Order 1990 designates the agreement
1006
between Her Majesty's Government and the board of governors at the European School as a Community treaty. The privileges order implements the agreement between the two parties with respect to income tax, customs charges, and capital gains and VAT on school equipment. Those are substantial privileges. Indeed, one feels rather regretful that the benefits that will flow to the school under the privileges order in terms of money released for equipment and resources are not also available to our state schools in this country.
The noble Lord will have noted that the Joint Committee on Statutory Instruments found some of the Government's replies with respect to the European School to be less than —I quote the word used in the second report —"illuminating". The committee noted that the Government took the view that the European School has the capacity to enter into an international treaty, but have not stated why they took that view. That is dealt with in paragraph 6 of the second report. Perhaps the noble Lord will enlighten us and confirm whether that is standard procedure when dealing with treaties.
Secondly, on the question of the other eight European Schools being given similar privileges and exemptions, will the noble Lord say how many British subjects attend them as students? Furthermore, will he advise the House of any representations that he has received from the governors of the school with respect to the proposed changes and how he thinks they will affect the running of the school? Will there be any significant change?
Finally, I regret to say that the joint committee criticised the statutory instruments as being defectively drafted. I was sorry to see that. Perhaps the Minister will say whether he thinks there is any validity in that criticism.
We agree that the school at Culham should be dealt with on a par with other schools and we wish the school every further success. I therefore hope that the noble Lord will not think that I am being unduly pernickety, but I think it proper to ensure that the criticisms are dealt with at this time.
Lord Stoddart of Swindon: My Lords, I too should like to say a few words about the statutory instruments. First, I concur with my noble friend Lord Cledwyn of Penrhos, the Leader of the Opposition, that it is a great pity that many of the sums of money and facilities available to the European School are not, alas, available in our own schools in England, Wales, Scotland and Northern Ireland. I hope that when the noble Lord replies to the debate he will deal seriously with the objections raised by the Joint Committee on Statutory Instruments in its second report, because these are two serious matters. They concern the competence of the European School to make a treaty. I sympathise with the committee's point of view. It also calls into account the validity of the orders. It would be sad if the House passed orders which were ultra vires after we had been advised by the joint committee that they were so.

1007
My second point concerns the privileges given to the school and its staff. It is not only members of foreign countries who will be accorded the privilege of not paying United Kingdom income tax; staff members seconded to the school by the United Kingdom Government will also be involved. In other words, they will be civil servants who will be exempt from United Kingdom income tax on salaries and emoluments paid to them by the school.
Some of us believe that the school is an elite institution which gives privileges to a small elite from the European Community similar to the kind of privileges which were given, and might still be given, in Eastern bloc countries to the Communist apparatchiks who have run those countries. Perhaps the noble Lord will tell us whether, in addition to being exempt from United Kingdom income tax on their salaries, staff members seconded to the school by the United Kingdom will be exempt from the poll tax. If so, the House will perhaps want to consider that matter. If they are so exempt, will their spouses also be exempt? That serious matter should be addressed by the Minister.
Finally, I regret that the orders have come before us at so late an hour. It almost appears as if the Government want to slip this kind of legislation through. I am sick and tired of European legislation of great note being slipped through when people are at dinner or doing other things, when they should be alert to what is happening and to the powers given to the EC or taken away from this Parliament, particularly the House of Commons. I hope that the Government will bring forward important orders of this kind at a more reasonable time when more people can embark upon the debate and scrutinise the legislation in the acute way in which it should be scrutinised.
Baroness David: My Lords, I wish to ask the Minister two questions. First, staff members seconded to the school by member states other than the United Kingdom are exempt from income tax in respect of salaries and emoluments paid to them by the school. We understand that a good many teachers come from member states to teach in our schools. Will they receive the same privileges? Secondly, what is the cost per pupil, what fees must be paid by those who go to the school and do any pupils go free?
Lord Reay: My Lords, I should like to thank the noble Lord, Lord Cledwyn of Penrhos, for his generally constructive approach to the orders. I have no doubt that his remarks about the school, which has a good reputation, will be appreciated. He asked me a number of questions of which he was kind enough to give me notice, although unfortunately not sufficient notice for me to be able yet to have found answers in all cases. He made a point, which was taken up by the noble Lord, Lord Stoddart of Swindon, about the defect in the original orders.
The orders were defectively drafted and, in the light of the criticisms made by the Statutory Instruments Committee, they were redrafted and
1008
relaid. The noble Lord also asked me how many British pupils there were in the other eight European Schools in other Community countries. I regret to say that I have not yet been able to find that out, but, when I do so, I shall write to him.
We all respect and enjoy listening to the views of the noble Lord, Lord Stoddart of Swindon, but there is no question of the orders being slipped through or being in any way ultra vires. It was open to anyone who wished to do so to take part in the debate. I shall consider the questions of the noble Baroness, Lady David, and reply to her in writing.
Lord Stoddart of Swindon: My Lords, perhaps I may repeat my question before the noble Lord sits down. I asked him whether British nationals seconded to the school, and their spouses, would be exempt from poll tax. I should like an answer to that question.
Lord Reay: My Lords, there is no provision in the headquarters agreement which will exempt those people from the community charge.
On Question, Motion agreed to.

European Communities (Definition of Treaties) (European School) Order 1990
8.39 p.m.
Lord Reay Lord Reay rose to move, That the draft order laid before the House on 6th December 1989 be approved [3rd Report from the Joint Committee].
The noble Lord said: My Lords, I have already spoken to the order. I beg to move.
Moved, That the draft order laid before the House on 6th December 1989 be approved [3rd Report from the Joint Committee]. —(Lord Reay.)
On Question, Motion agreed to.

Courts and Legal Services Bill [H.L.]
8.40 p.m.
House again in Committee.
Clause 8 [Representation in small claims and certain other cases]:
Lord Ackner Lord Ackner moved Amendment No. 51:
Page 8, line 16, after ("may") insert ("with the concurrence of the Lord Chief Justice").
The noble and learned Lord said: This amendment has been tabled in my name and that of the noble Lords, Lord Renton and Lord Hooson. It relates to Clause 8, which is a very odd clause. Clause 8 comes in Part I, which is designed essentially to move cases into the county court. Yet it is concerned with the legal representation or the non-legal representation. Part II has elaborate provisions, which no doubt will be debated at length from Thursday, as to the type of person and safeguards and the degree of consultation which is appropriate and necessary before non-lawyers and even those who do not practise

1009
consistently at the Bar appear in court. The process of consultation is laid out in great detail.
This is a rogue clause in a way because it gives the right to the Lord Chancellor, without even consulting any member of the judiciary, to say that,
"there shall be no restriction on the persons who may exercise rights of audience, or rights to conduct litigation, in relation to proceedings of such a kind as may be specified in the direction".
It then goes on to say that in relation to the county courts that power should only be exercised in certain specific cases. It leaves aside proceedings in other unspecified venues. I imagine that the magistrates' court would be one. I do not know what other courts may be in mind. For instance, I have not checked to find out whether in the Lands Tribunal it is necessary for the advocate to be a solicitor or a barrister, but I suspect that it would be.
So far as concerns the county courts, the current position —which I am told by the president of the council of circuit judges is deemed by them to be wholly satisfactory —enables them on a case by case basis to decide whether a non-lawyer (that is, neither a solicitor, a barrister, nor, I imagine, a legal executive in the cases where they have rights of audience) can, if appropriate, attend and conduct the case. The clause gives to the Lord Chancellor, without consulting any of the heads of the divisions, the county court judges or the chief of the metropolitan magistrates (assuming that the magistrates' courts may be one of them) power to decide what at first blush looks like categories of persons. I imagine that it will not be dealt with on a person by person basis. I assume that what is in mind is categories of persons who shall be entitled to conduct litigation and also have rights of audience. No indication is given as to what the Lord Chancellor must have regard to.
That seems, certainly in the view of the county court judges, a wholly unnecessary provision to insert. But there is a constitutional aspect because it relates to the discharge of the judicial function by the judges. A judge is dependent upon the proper presentation of a case. Also, although it may be a somewhat old-fashioned idea, he is in charge of his court. To be told that categories of persons over whom he has no specific control except in the limited nature set out in this clause should be there to conduct litigation before him seems constitutionally quite wrong. It involves, so to speak, a minister deciding on an aspect of the discharge of the judicial function; namely, the type of representation that he has to tolerate —that is what it comes to —if an order is so made.
I wish to make these points quite clear. Let us suppose that my noble and learned friend the Lord Chancellor states as a category that all professional debt collectors shall have a right of audience in the county court for the recovery of amounts due under contracts. Maybe he decrees that all probation officers shall have a right of audience in matters relating to proceedings to recover domestic premises, which I should have thought covers almost the entirety of Rent Act litigation —one of the most difficult fields of litigation in so far as it relates to domestic premises.
Such persons will ex hypothesi have no code of conduct; otherwise they would have qualified under Part II with all the protection that exists there. They will have no duty to the court because that duty arises out of the professional code which is imposed upon the members of the profession. There will be no disciplinary body to deal with any of their deficiencies. Moreover, since contingency fees on a limited basis are now to be the "in" forensic philosophy, what is to stop such a person going beyond the bounds of what my noble and learned friend the Lord Chancellor has in mind and involving himself in the American approach to contingency fees? What is to stop X saying to a plaintiff: "I am pretty glib. I am very good at debating and arguing. On the basis that I get 50 per cent. of anything you recover, I shall do the case for you. I am in fact a recognised debt collector or recognised whatever the category is that the Lord Chancellor mentions". Who is to discover that and, if it is discovered, what is to happen without any code or discipline at all? Why should a circuit judge, a county court judge, who will have any amount of additional burdens placed upon him in the trial, in the conduct of his cases, be landed with non-lawyers, save on a case by case basis which he can control?
My noble friend Lord Hooson has already said in Committee:
"A fear that I have heard expressed many times at the Bar and by judges is that the Lord Chancellor's Department is slowly but surely taking control not only of the Bar and of the solicitor's profession but of the judges as well". —[Official Report, 16/1/89: col. 555.]
That is the underlying fear. Here one leaves it essentially to the Minister —an overworked Minister who no doubt will rely heavily upon the Civil Service —to decide in this limited field the extent to which a judge is to be assisted (probably the reverse) in the conduct of litigation of complexity; namely, Rent Act litigation and, so far as subsection (2)(a) is concerned, contracts unlimited. The extended jurisdiction of the county court —by that I mean the jurisdiction by reference to pounds, shillings and pence —covering virtually all commercial cases, comes within this extraordinarily wide power.
I submit that some form of control should be put upon it in the form of judicial input. We are concerned with a judicial activity; namely, hearing and determining a case. I have suggested that the input should be the Lord Chief Justice for the very simple reason that, through his senior presiding judge and the presiding judges, he has contact throughout the whole of the circuits and can discover from circuit judges and registrars just what they want done in relation to extending the case by case system. Therefore the Lord Chief Justice will be in an admirable position to say, when the Lord Chancellor's Department or the Lord Chancellor suggests a category of person, "No, I have consulted with the county court judges and the registrars (as they used to be called until this Bill). They have said that this a most unsatisfactory arrangement and we do not want it". I beg to move.
Lord Renton: I find Clause 8 in its present form most unacceptable for the reasons given by the noble

1011
and learned Lord, Lord Ackner, but I should like to emphasise several defects in it before I come to the particular amendment which can to some extent rectify those defects, although not entirely.
The main trouble about the clause is that it impinges on Part II of the Bill but clearly has not been dovetailed with it. By the provisions of subsection (3) in particular it pre-empts decisions which will have to be made under Part II with regard to rights of audience and conduct of litigation. The whole tenor of the clause is to grant rights of audience to people who are unqualified in any sense. As the noble Lord has said, it will open the door to the malpractices —I am afraid there have often been malpractices —of people who are well known to be in the business of debt collecting. Frequently they have used very harsh methods, mainly against people who do not have great means. I hope that my noble and learned friend the Lord Chancellor will look most carefully at this clause because it is quite unacceptable in its present form.
The suggestion made by the noble and learned Lord, Lord Ackner, is that the Lord Chancellor, before giving a direction that there should be,
"no restriction on the persons who may exercise rights of audience, or rights to conduct litigation, in relation to proceedings",
which may be specified in the direction —again we do not know exactly what all those proceedings might be —should obtain the concurrence of the Lord Chief Justice. That is not an unreasonable suggestion bearing in mind the present responsibilities of the Lord Chief Justice with regard to the working of the courts. We should also bear in mind —later this evening we shall come to an amendment to be moved by the noble and learned Lord, Lord Simon of Glaisdale —that in this part of the Bill there are some things that the Lord Chancellor cannot do without the consent of the Treasury which he is required to do. If the Lord Chancellor agrees that there must be some things in the Bill that he cannot do without the consent of the Treasury, is it unreasonable for us to suggest that there are some things he should not do without the concurrence of the Lord Chief Justice?
I hope that my noble and learned friend —for whom, like others, I have the greatest regard but who has perhaps, in rather a hurry, landed himself with details in this Bill which on reflection he may not relish —will agree to the amendment in the light of what has been said and will take a very careful look at the clause as a whole.
Lord Meston: With respect, I share some of the misgivings which have been expressed about Clause 8, or Clause 8 as presently drafted. According to a side note to Clause 8 it applies to small claims —but it does not say anywhere how large or small a small claim is to be —and to certain other cases. In fact, as the noble and learned Lord, Lord Ackner, has said, those certain other cases could be very large and important. For example, a claim in a county court for the recovery of an amount due under a contract could provoke a massive counterclaim. Certainly under the rules as they now are the case
1012
would continue to proceed in the county court however complicated the counterclaim might be, for example, involving the sort of case which would normally be conducted in front of an official referee.
Clause 8 seems to provide a useful power on the face of it to allow for representation if the alternative is no representation at all, but the difficulty with Clause 8 is, first of all, the opening words which read:
"The Lord Chancellor may at any time direct that there shall be no restriction on the persons who may exercise rights of audience, or rights to conduct litigation".
That appears to be what I would describe as an all-or-nothing power, that is to say it does not say that the Lord Chancellor is to be empowered to impose certain restrictions on certain categories of person. So once the Lord Chancellor has in his wisdom given a direction under Clause 8(1) the doors are open to all sorts of people, be they struck-off lawyers or any other person, to conduct litigation in the county courts in these categories of case.
In my submission it is wrong that in that situation there should not be much closer control of the proceedings at the local county court level and of the way in which they are conducted. I do not want to anticipate the arguments which I shall develop in relation to Amendments Nos. 64 and 66. For the present I will simply support the amendment and the reasons behind it.
The Lord Chancellor: As I understand this clause —and so far as I am concerned it has not been prepared in any great hurry—its meaning is as the noble Lord, Lord Meston, said: I am empowered by this clause to direct that there should be no restrictions on persons who may exercise rights of audience. It does not empower selecting particular groups, as my noble and learned friend Lord Ackner suggested, but I may have misunderstood him. The purpose of this is to give effect to Recommendation 48 of the Civil Justice Review that:
"Litigants in small claims cases and in debt and housing cases which are proceeding in a County Court should have a statutory right to be assisted or represented by a lay representative of their choice, subject to the discretion of the court".
That is what I sought to give effect to in the clause. I have not gone the full length of making that provision directly because one would want to see how it worked and relate it to particular classes of proceedings.
The next point I make is that I think my noble and learned friend Lord Ackner is incorrect in suggesting that this could apply to anything except the specified proceedings in the county courts, because it says,
"The power to give a direction may only be exercised in relation to proceedings in county courts",
for these purposes.
9 p.m.
Lord Ackner: I am sorry to intervene. Clause 8(1) reads:
"in relation to proceedings of such a kind as may be specified in the direction".
The next subsection deals specifically and exclusively with the county courts. I derived my

1013
proposition from Clause 8(1), which is in no way limited. It is only in subsection (2) that there appears a restriction on a particular class of court.
The Lord Chancellor: With the greatest respect, I do not believe that that is the correct construction to put on the clause. It reads:
"in relation to proceedings of such a kind as may be specified in the direction".
Subsection (2) states:
"The power to give a direction may only be exercised in relation to proceedings in county courts",
and then lists the purposes. Therefore, there is no power to give direction other than in relation to the county courts and those particular proceedings.
Subsection (2) restricts the power to give directions to proceedings of that kind. Within proceedings of that kind the Lord Chancellor has power to select. When he does so that would be proceedings of a kind specified in the direction with a consequence of subsection (1). Therefore, the only proceedings that I intend to cover are those in the county court of the kind referred to in the direction.
The point considered carefully by the Civil Justice Review was the existing legislation, to which my noble and learned friend Lord Ackner has referred, allowing lay representatives to appear only with the leave of the court. The Civil Justice Review found that unsatisfactory because advice agencies offering representation services could not be certain whether their workers would be allowed to appear. The purpose of the provision is to give effect to that recommendation in cases of the kind described.
As I said in relation to Clause 1, it would be my purpose to consult widely before exercising any power under the Bill if it becomes an Act. In my submission, it would be important to have the views of all members of the senior judiciary—that is all the heads of division —and also those of the county court judges and others.
The provision in existing legislation dealing with such matters is Section 61 of the County Courts Act 1984, under which the Lord Chancellor already makes directions that certain categories of person in relevant legal employment may address the court in county court proceedings. No requirement of concurrence appears in that section and I am not persuaded that there is now any need for such concurrence.
My noble and learned friend referred to the Lord Chancellor as being a Minister, as of course he is. However, by statute he is also the President of the Supreme Court. In carrying out the duties of that office he would undoubtedly take account of the views of the senior judiciary in exercising the power.
Accordingly, I venture to suggest that this is not an appropriate place in which to insert a statutory need for the concurrence of the Lord Chief Justice. I hope that any directions I give will be in accordance with the views of the Lord Chief Justice. However, it is right that the statutory responsibility should rest with the Lord Chancellor and that the scope of his direction-making powers should be restricted as is the case in Clause 8(2).
1014
That is a different situation from that dealt with in Part II. As my noble and learned friend said, I have provided elaborate arrangements for concurrence by all the heads of division. I hope that in the light of that explanation my noble and learned friend will feel able to withdraw his amendment.
Lord Ackner: Before my noble and learned friend sits down, I wish to point out that he has mentioned whom, among others, he would certainly consult. In those circumstances, has he any objection to following the kind of phraseology used in Clause 1(5) provided that, before making any order under this section the Lord Chancellor shall consult with the heads of division and the senior presiding judge?
Secondly, having been supported sub silentio by my noble and learned friend Lord Wilberforce in my off-the-cuff interpretation, would he also be kind enough to undertake that the draftsmanship of the provision is reconsidered? I venture to think that he may wish it to be clarified in the sense that he has mentioned. I should be grateful for answers to those two points.
The Lord Chancellor: As regards the second point, I have the greatest respect for the opinions on construction of my noble and learned friends Lord Wilberforce and Lord Ackner. I have not yet seen the force of the opposite construction but undertake to put the views expressed and those which have been delivered sub silentio before the draftsman for his advice.
As regards the first point, I have no difficulty in accepting such a consultation provision if, on consideration, my noble and learned friend thinks it wise. The clauses were seen by my noble and learned friend the Lord Chief Justice and the other heads of division. My main reason for not including them here —and, with great respect, it may not be entirely appropriate to do so —is that the provision is concerned only with the county court. It follows the precedent in Section 61 of the Act which puts the responsibility on the Lord Chancellor. Where jurisdictions of the High Court are concerned, as they are in Clause 1(1), the situation may be different. However, I undertake to consider both matters in the light of what has been said.
The Earl of Onslow: Before the noble and learned Lord withdraws this amendment, I should like to say that, as a layman, it seems to me deeply unsatisfactory that we should be passing Acts of Parliament when three highly intelligent, articulate and well-trained lawyers are arguing over the meaning of one clause. That seems unsatisfactory to an ordinary citizen. I do not know whether the noble and learned Lord, Lord Ackner, or my noble and learned friend the Lord Chancellor is right. However, it seems to me deeply unsatisfactory that they cannot agree about the meaning of this point. We should not be passing legislation in that way. It should be plain to everybody. If two Law Lords are arguing about the meaning, it cannot be satisfactory.
The Lord Chancellor: I entirely accept that. However, for legislation to pass the test that all noble

1015
and learned Law Lords take the same view on it would be putting a fairly high standard on legislation because I am not a complete stranger to cases of statutory construction in which this House has divided three to two.
Nevertheless, if it is possible to avoid that, it is highly desirable; I accept that. I invite my noble friend to apply his own mind to this matter. He is just as able as any of us to appreciate these arguments. However, I certainly take his point and if possible I will try to make this matter plainer.
Lord Renton: In the further consideration which my noble and learned friend is going to give, he may care to consider making more sense of the last line and a half of subsection (1) and make it clear that it is limited by the terms of subsection (2) by adding at the end of the third line of the subsection such words as, "as mentioned in subsection (2)". That would make it clear that subsection (1) is limited by the terms of subsection (2).
The Lord Chancellor: I am grateful for that suggestion.
Lord Mishcon: I was going to raise this point under clause stand part. I am very grateful to the noble and learned Lords, Lord Ackner and Lord Wilberforce, for making the point and to the noble Lord, Lord Renton, for helping with some suggested phraseology.
So that we all know that this is a very serious point —and it looks to be an example of loose drafting —I ask the noble and learned Lord, who at first sight did not perhaps appreciate the argument, to look again at subsection (1). Anybody can read that perfectly intelligently as meaning:
"The Lord Chancellor may at any time direct that there shall be no restriction on the persons who may exercise rights of audience, or rights to conduct litigation",
full stop. One may then ask: what about subsection (2)? At first sight, subsection (2) reads as though there must be a limitation in the county court on that right to direct because it states:
"The power to give a direction" —
one only has to raise one's voice to get the meaning—
"may only be exercised in relation to proceedings in county courts".
There is the limitation. Therefore, without any further words or clarification, subsection (1) is of a general application and subsection (2) appears to be of a limited application in regard to the county court.
Having said that, I merely add my humble voice to those of noble and learned Lords who have spoken in regard to this matter. I make one final point in order to abbreviate any speech which I may make on a subsequent amendment. The noble and learned Lord may well consider that this is a matter at which Parliament should at least have a glance. Instead of his giving himself the power to make a direction without any further ado except possibly consulting certain of the high judicial offices, this matter should be subject to a statutory instrument. Therefore, where such powers are given —they are very
1016
important —Parliament at least has a chance to have a word about that. I believe he would find that that would be more generally acceptable. However, that is the subject matter of another amendment which I shall move, but the Committee has been saved a further speech by my making my point now.
Lord Hooson: Perhaps I may reinforce what has been said. I supported this amendment and added my name to it because I believed that the meaning was obscure. I thought that a safeguard was needed. That is why I supported the idea of adding the words:
"with the concurrence of the Lord Chief Justice".
So often in this Bill we have accepted the arguments of the Lord Chancellor because we accept his undertakings and we can see what he has in mind when he explains it. However, when we look at the wording of the Bill we so often find obscurities. Of course we know perfectly well that undertakings by the Lord Chancellor of what he intended cannot be relied upon in court when this matter comes eventually to be interpreted. We rely entirely on the wording of the clause or section as it becomes.
If I could have gleaned from this clause the restricted intention that the Lord Chancellor has explained today, I should have had doubts about whether this amendment was necessary. I am bound to say however, from my limited experience and knowledge that the interpretation by the noble and learned Lord, Lord Ackner, is certainly a possibility and I should have thought on a plain reading of Clause 8(1) is correct. There is no limitation on it and therefore this needs looking at again.
Lord Morris: Before we leave this amendment if the words "under this section" were included after the word "direction" in Clause 8(2), as in Clause 8(3), the position would be made a great deal clearer. Undoubtedly the observation of the noble Lord, Lord Mishcon, on Clause 82(1) makes it absolutely plain that any power to make orders or regulations conferred by this Act shall be exercisable by statutory instrument, and other than those mentioned will be subject to the negative resolution procedure of either House of Parliament. I may be completely wrong but I believe that that covers a direction under Clause 8.
9.15 p.m.
The Lord Chancellor: There are different types of action by the Lord Chancellor under the existing Acts and direction is one of them. Regulation-making power is different. This is intended to be a direction on the same lines as Section 61 of the County Courts Act.
I am happy to consider the question whether it should be done by statutory instrument, as the noble Lord, Lord Mishcon, suggested, because I agree that it is of some importance. On the other hand, the Civil Justice Review, which had a fair amount of acceptance generally, was supporting this in relation to all these types of case and therefore I thought I was adding an additional safeguard by having consultation before I actually made an order in respect of any particular class of proceedings. That was intended to give a further safeguard.

1017
I am perfectly content to consider the question to which the noble Lord, Lord Mishcon, referred. I do not think I want to carry the argument on construction further for the time being. My main argument is that the only power to give a direction is that which is limited by subsection (2).
Lord Ackner: My noble and learned friend has agreed to consider putting into the clause a reference at least to consulting some of the judiciary. I selected the Chief Justice because I did not think it was necessary to consult the heads of divisions. When one looks at Hansard one will find it was my noble and learned friend the Lord Chancellor who referred to the heads of divisions. The person who is essentially the conduit pipe for the consultation is the senior presiding judge who has at his fingertips the respective knowledge from the circuits. If my noble and learned friend will agree to consider including him, then I will wait and see what the amendment looks like.
I should finally like to say that my noble and learned friend the Lord Chancellor, of course in his most friendly manner, chided me for not appreciating that he was there to safeguard the independence of the judiciary. I notice that the Civil Justice Review made the recommendation —if I have the words correctly —"subject to the discretion of the court". That is exactly what I am trying to do. In so far as the Lord Chancellor is decreeing that this should be subject purely to his discretion, which is how the clause reads, he is making an inroad into the independence of the judiciary (albeit a small one) because it is on the independence of the judiciary that one relies for the competent control inter alia of its courts. In those circumstances I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mishcon Lord Mishcon moved Amendment No. 52:
Page 8, line 16, leave out ("at any time") and insert ("by order").
The noble Lord said: With this amendment are grouped Amendments Nos. 56, 59, 60 and 61. I have already spoken to this. The noble and learned Lord has been good enough to say he will consider including the words "by order" and in those circumstances I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mishcon Lord Mishcon moved Amendment No. 53:
Page 8, line 16, leave out ("there shall be no restriction on the persons who") and insert ("persons (in this section referred to as "authorised persons") who would not otherwise be entitled to do so").
The noble Lord said: With this amendment are grouped Amendments Nos. 63 and 67. The Committee has already heard that it appears there is no limitation here, the present clause being defective, I suggest, because there is no power to make a more limited order. Once a direction has been given there would be no power, for example, to stop a solicitor who had been struck off the rolls for dishonesty from setting up in business as a small
1018
claims advocate —a threat that I believe was mentioned in the course of a discussion on the previous amendment.
My noble friend Lord Prys-Davies, the noble Lord, Lord Macaulay of Bragar, and I seek to set out a series of qualifications to the order —the specification of categories, the imposing of restrictions and so on —that I hope the Committee and the noble and learned Lord will find useful. The new subsection would also widen the basis on which the court may refuse to hear someone. The present restrictions on the court are unruly behaviour and matters of that kind. However, I should have thought that we could properly add dishonest behaviour or gross incompetence and such matters. I hope that the noble and learned Lord will regard it as a useful amendment.
Lord Allen of Abbeydale: As a non-lawyer I venture with great trepidation into what has so far been an almost exclusively legal preserve. Perhaps I may begin by saying that I am very much in favour of this clause in general as implementing the relevant recommendations of the Civil Justice Review. In all humility, I have no difficulty on my own initiative in putting the same construction on the clause as the noble and learned Lord the Lord Chancellor.
My Amendment No. 54 has not been grouped with the amendments that we are now discussing. If I understand the amendments correctly, what I am suggesting seems aimed in part at the same problem. I should like to offer a short contribution at this stage.
Until I saw Amendment No. 67 and listened to the noble and learned Lord, Lord Ackner, I had not thought that there was any controversy or complication about individuals being represented by a friend, relative or advice worker. However, there seems some substance in the fear of the possibility of large corporate creditors using unqualified debt collecting agencies to bring cases to court. The reason that I speak to my amendment at this stage is that it is aimed at allowing the Lord Chancellor to distinguish between different parties. For instance, he could direct that individual defendant debtors could use lay representatives, while corporate creditor plaintiffs would be obliged to use qualified and properly regulated lawyers. I believe that that approach is preferable to the group of amendments to which the noble Lord, Lord Mishcon, has just spoken. I believe that it would be a mistake to go in for complex and excessive regulation in this area. The approach in Amendment No. 67 strikes me as being over-cautious and too hedged about with restrictions and conditions.
I should be opposed to the present amendments. However, if they fail —as I think that they should —I would hope for a better fate for my Amendment No. 54.
Lord Meston: I speak in support of the amendments of the noble Lord, Lord Mishcon. His Amendment No. 63 overlaps Amendments Nos. 64 and 66 which stand in my name.
The point that the noble Lord, Lord Allen of Abbeydale, has made is that Clause 8, as I said

1019
earlier, provides a useful power if the alternative is that there should be no representation at all. However, as I also said earlier, Clause 8(1) appears to give the Lord Chancellor what I describe as an all or nothing power. I understood him to agree with that. I agree with the noble Lord, Lord Mishcon, that that would seem to leave the door open to the conduct of litigation by a struck-off lawyer fresh out of prison. One asks the noble and learned Lord the Lord Chancellor why he does not allow himself in Clause 8(1) a measure of discretion to exclude certain categories of people. That is the purpose of Amendment No. 53, in the name of the noble Lord, Lord Mishcon. I entirely support him in that amendment.
Amendment No. 63 touches on the further limitation in Clause 8(4) regarding the power of a county court judge or registrar to control such a lay representative. It exists only if such a person behaves in an unruly manner. I suggest that the word "unruly" is too limited. It does not cover other forms of improper behaviour. In my amendment I seek to extend it to people who fail to show,
"appropriate standards of conduct or competence".
The lay representative may lack the necessary training or qualifications in advocacy or the other basic skills needed to present even a straightforward case in court. If the clause stands in its present form, that representative, however incompetent, provided he is not unruly, can continue.
I have some experience of this in industrial tribunals where there is no restriction on lay representation. A minority of people appearing as representatives behave quite improperly. They ask leading questions, they prompt witnesses and they withhold documents. Other categories of people appear to have learnt their skills in advocacy from American television programmes. They think the requirement is very loudly to shout "Objection" every three seconds. If such behaviour is to spread to the county court, the judge ought to have some ability to control it, particularly if it does not fall into the category of unruly behaviour. Accordingly, I support this batch of amendments to enable the judge to control the incompetent as well as the unruly. The incompetent can often do as much harm as good to the litigant he seeks to represent. We should certainly seek to broaden Clause 8 if it is to pass into law.
Lord Renton: This is a wide-ranging debate on a rather limited amendment. As I understand it, we are discussing Amendment No. 53. If I am wrong I shall no doubt be corrected. I wish to take up the point made by the noble Lord, Lord Allen of Abbeydale, in referring to his own amendment, Amendment No. 54. There seems to have been an assumption that anything in the Civil Justice Review should be acceptable. I do not think that we should necessarily make that assumption. It is relevant to our discussion to find what was said in the Civil Justice Review but we are not bound by it. If we find that when translated into legislation some of it appears to be unsatisfactory, we should depart from the Civil Justice Review.
1020
The noble Lord, Lord Allen, made a second point. He wants the Lord Chancellor, in giving a direction under subsection (1), to be able to give a direction as to the type of parties that come into the picture. He referred to large corporate debt collectors. It must be inferred from what he said that he does not relish the idea of their being parties. The small individual debt collector may be even more ruthless on some occasions. Indeed, I remember when I was serving for a constituency as a Member of another place that it sometimes came to my notice that that was so. Therefore, I am just a little doubtful as to whether the amendment tabled by the noble Lord, Lord Allen of Abbeydale, will deal effectively with the danger he has in mind.
9.30 p.m.
The Lord Chancellor: These amendments are designed to increase the powers of the Lord Chancellor under Clause 8. From that point of view, I do not think that much can be said against them. When the Bill was being drafted I felt that we should go for what I understood to be the thrust of the Civil Justice Review, which was to give the client the right to be assisted or represented by a lay representative of his choice. In some cases it could be a neighbour or someone of that kind who is requested. Therefore, if one were to specify too much the type of person required difficulties might arise. The discretion mentioned in the Civil Justice Review was one which would affect corrupt or unruly representatives. I have provided a power so far as concerns corrupt or unruly representatives later on in the clause.
As the noble Lord, Lord Allen of Abbeydale, said, the order-making power in Amendment No. 67 certainly indicates a tremendous amount of possible detail. But of course it is only possible. I would not perhaps think it right to exercise many of these powers. The existence of the powers does not in itself create any harm. I have also provided power to amend orders. It may be that in the light of experience some of those powers will prove to be of use.
Subject to any further remarks which Members of the Committee may wish to make, I am certainly prepared further to consider these powers. My opinion at present is that I would not be inclined to restrict the provision too much. I would tend to leave the matter very open and leave it to the parties to have their own representatives, the understanding being that these are small cases, the lowest type of cases, in the county court. Moreover, the proceedings which would actually be applied could be restricted within these categories. I believe that having an absolute right to choose one's representative, subject to their being reasonably ruly—I trust that that is the correct expression —is a valuable right for the client to have. Indeed, that was what the Civil Justice Review was really aiming at.
Lord Mishcon: If I may say so, I appreciate the fact that the noble and learned Lord thought we were trying by way of this amendment and the worthy speech of the noble Lord, Lord Meston, to help him overcome a difficulty in which he might otherwise find himself. As the noble Lord, Lord Meston, said,

1021
Clause 8(1)—and I thought that the noble and learned Lord agreed with him on a previous occasion in this connection —is an all-or-nothing direction. Therefore, to say, "Well, I am perfectly prepared to allow these persons the right to conduct litigation or to exercise rights of audience subject to the provisions contained in subsection (2)", may be a harmful exercise of power if there is not the permission to deal with the matter —and it is only permissive —within the qualifications set out in the amendment.
There is never any point in labouring something when the noble and learned Lord has been good enough to say that he has heard the arguments and that he will consider them to see whether there is such validity in them that he would like to come forward, perhaps not with an acceptance of the amendments—I say "the amendments" because I believe that the noble Lord, Lord Renton, thought we were dealing merely with Amendment No. 53, although I said that it was grouped with Amendments Nos. 63 and 67 —but an understanding that he will look at the matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Allen of Abbeydale Lord Allen of Abbeydale moved Amendment No. 54:
Page 8, line 18, after second ("to") insert ("parties or").
The noble Lord said: I do not propose to pursue the amendment, but I hope that when the noble and learned Lord the Lord Chancellor comes to work out what may be done he will not make it too complicated and will not go in for powers which he thinks he may not need. I beg to move.
The Lord Chancellor: I am grateful for that indication. I feel myself to be between two extremes in this matter. I should like to be as accommodating as possible and to try to pick up the spirit of the Civil Justice Review. As I said earlier, many of those people may want a friend or neighbour to represent them. It is hard to make them a class, because if one does it by positive classes one may be in some difficulty. It may be correct to say, "anyone, subject to restrictions which may prove to be necessary after considering the matter". I take account of what the noble Lord has said. I shall have it in mind when I consider what to do. If I can meet everyone's wishes I shall be happy, but I suspect that I may not be able to do that completely.
Lord Allen of Abbeydale: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (Baroness Lockwood): I must draw the Committee's attention to the fact that if Amendment No. 55 is agreed to I cannot call Amendments Nos. 56 to 58 inclusive.
Lord Renton Lord Renton moved Amendment No. 55:
Page 8, line 20, leave out subsection (2).
The noble Lord said: There is no need for the Committee to worry. This is a probing amendment
1022
so that I may ask my noble and learned friend the Lord Chancellor whether he can give us some idea of the scope of the proceedings under subsection (2). In subsection (2)(a) we find:
"for the recovery of amounts due under contracts for the supply of goods or services".
That is a wide concept. Nearly everything that the normal person buys or the services that he requires are covered by such contracts. We understand that the provision is intended to deal with small traders. The side-note says, "certain other cases". Will my noble and learned friend give us some idea of what he considers to be the maximum amounts that could be claimed under subsection (2)(a)? That is my first question.
My second question relates to subsection (2)(b), which refers to "domestic premises" which are defined in subsection (6) as
"any premises which are wholly or mainly used as a private dwelling".
That provision would invoke the whole of the landlord and tenant legislation. One wishes to know whether my noble and learned friend has in mind any particular value or size of private dwelling which would come within the expression "domestic premises". I am not referring to subsection (2)(c) because I do not believe that much difficulty arises under that paragraph. It is merely an application of the small claims section of the County Courts Act.
The Lord Chancellor: As I tried to explain earlier, the purpose of subsection (2) is to limit the power which is available under this section. Recommendation 48 of the Civil Justice Review said that litigants in small claims cases —that is (c) —in debt cases —that is (a) —and in housing cases" —that is (b) —
"which are proceeding in a County Court should have a statutory right to be assisted or represented by a lay representative of their choice, subject to the discretion of the court".
That discretion is explained as relating to corrupt or unruly representatives. I have tried to reflect that. As the noble Lord says, the mere fact that the Civil Justice Review recommended it is not binding on us. On the other hand, the Civil Justice Review has been fairly generally accepted and it is a reasonable basis on which to proceed.
I have in mind that if I were making a direction under this clause, I would start pretty small and see how it worked. In other words I would go fairly low. As the noble Lord said, "small claim s" is pretty clear. Regarding housing and debt cases I have in mind starting with low figures and seeing how they worked. However, I should wish to consult about these matters before I came to any conclusion. I have tried to follow as nearly as I can the general description given by the Civil Justice Review. I hope that that answers my noble friend's question.
Lord Renton: I am grateful to my noble and learned friend for that explanation. If he is able to give us any further indication at Report stage I am sure it would be appreciated. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 56 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 57:
Page 8, line 24, at end insert ("or").
The noble and learned Lord said: This amendment is purely a drafting change to make it clear that the three circumstances in which the Lord Chancellor may direct that there shall be no restriction on the persons who may exercise rights of audience set out in Clause 8(2) may be exercised separately. I beg to move.
On Question, amendment agreed to.
Lord Allen of Abbeydale Lord Allen of Abbeydale moved Amendment No. 58:
Page 8, line 27, at end insert —
("(d) for the enforcement or non-enforcement of judgement debts;
(e) under the Consumer Credit Act 1974").
The noble Lord said: This is not an area in which I move with any great familiarity. I put the amendment down as it seemed to me that the clause did not go far enough in carrying out the conclusions of the Civil Justice Review as regards debt. I am encouraged by the support which the amendment has received. It is certainly not intended to be in any way controversial.
The review was particularly concerned that defendants should be entitled to be represented by friends, relatives and advice workers in debt cases before the county court. It had evidence that registrars had refused to hear, for example, money advisers. The purpose of the amendment is to ensure that Clause 8 applies to all the relevant debt work before the county court. Unless I have got it all wrong—which is quite conceivable—it seems to me that we need words such as those in the amendment to be sure that the power to give a direction under this clause as regards debt cases is sufficiently comprehensive. I beg to move.
Lord Prys-Davies: From these Benches we would very much like to support the amendment. It is also my impression that subsections (2)(a), (b) and (c) do not go far enough. Therefore we believe that the scope of Clause 8 ought to be widened so as to include the two categories of proceedings mentioned.
If we take the enforcement or non-enforcement of judgment debts, in the vast majority of cases the debtors do not go near the court when the judgment is entered. It is only when an application is made to the court for the party to be examined as to his means, or if the defendant wishes to suspend the execution, that he first seeks advice and goes to the door of the court. As legal aid is not available, we think it is extremely important that lay representation should be available to that person at the hearing of such proceedings.
I am not quite sure about the scope of the proceedings that come under the terms of the Consumer Credit Act 1974. However, it is my impression that the point at issue may not necessarily be the recovery of a specified sum, which would be dealt with under the terms of Clause 8(2)(a), but it could cover the right of the plaintiff to determine hire purchase, a credit agreement or the return of goods. In my part of the world people often buy
1024
under the terms of a catalogue agreement. Here again, if I have understood the provision correctly, it is important that a defendant should be able to put his case to the court through a relative, friend or advice agency if he requires their assistance. I wish to support the amendment.
9.45 p.m.
The Lord Chancellor: The headings that have been chosen for the amendment strike me as being entirely appropriate for this procedure. If the noble Lord will allow me, I shall take a chance further to consider this matter. I have the impression that some of the points may already be covered, but I should like to make sure of that. I shall make sure that the drafting is sufficiently wide to ensure that those points are covered.
Lord Allen of Abbeydale: I am much obliged to the noble and learned Lord. I shall not weary the Committee with examples of cases which seem to me to fall outside the Bill as it is drafted. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 59 to 63 not moved.]
Lord Meston Lord Meston moved Amendment No. 64:
Page 8, line 39, after ("manner") insert ("or is failing to show appropriate standards of conduct or competence").
The noble Lord said: Although I spoke to this amendment earlier in relation to Amendment No. 63 which was spoken to by the noble Lord, Lord Mishcon, I did not understand the noble and learned Lord the Lord Chancellor to deal with the point which both the noble Lord, Lord Mishcon, and I sought to make, which is that the court's powers under Clause 8(4) are too limited towards people who behave in an unruly manner. If you literally throw the book at a judge he can throw the book back and refuse to hear you. However, if you behave dishonestly or behave incompetently and withhold documents a judge is not given power under Clause 8(4) to refuse to hear such a representative. I suggest that it is proper, particularly in the context of opening the courts to wider lay representation, to give a judge or registrar proper powers to refuse to hear not just people who are unruly but also people who do not otherwise behave in a proper manner. I beg to move.
Lord Simon of Glaisdale: Are the powers under Clause 8(4) not inherent in the power of a judge to control the proceedings of his court? The situation may be slightly complicated by the law of contempt of court because possibly the county court is not a court of record. I should have thought that, apart from that case, any judge can control proceedings in his own court without the danger of writing in a provision too narrowly, as the noble Lord, Lord Meston, has suggested.
Lord Renton: I should like to support Amendment No. 64 moved by the noble Lord, Lord Meston. I stress that, if lay people are to be brought in who have uncertain qualifications or none at all, it is essential that the judge should be able to stop their

1025
appearance if they are wasting time through lack of the proper conduct or incompetence.
In Amendment No. 65 I proposed that subsection (5) be left out for the very reason given by the noble and learned Lord, Lord Simon of Glaisdale. Why should the court have to give reasons in those matters? I should have thought that that was a new departure and quite unnecessary. However, if we have to have something on the lines of subsection (5) then I believe that Amendment No. 66 in the names of the noble Lords, Lord Meston and Lord Hooson, and myself should be adopted, leaving out "conduct" and inserting "reasons".
Lord Byron: As a practising solicitor I should like to speak in support of what the noble Lord, Lord Meston, has said. Clause 8 as a whole gives very wide powers. It falls outside the whole structure of Part II of the Bill, which has a great many complicated safeguards that are designed to deal with new classes of advocate and new classes of people who will be conducting litigation. It comes under the heading of "Miscellaneous" and forms part of Part I of the Bill. To that extent it is anomalous.
When I first read the clause, and in particular subsection (4), it struck me that the draftsman had used inappropriate language in referring to "unruly" as the only limiting factor. I take what the noble and learned Lord, Lord Simon, said: it may be that the court has inherent power. However, if such wording is to be used in subsection (4) it seems to me that it should be extended. I therefore support the amendment.
Lord Mishcon: I too support the spirit of the amendment of the noble Lord, Lord Meston. We thought that paragraph (g) of Amendment No. 67—which I promise the Committee I shall not move—was rather more appropriate in that it allowed an order to be made specifying circumstances in which a county court may refuse to hear an authorised person. In that event the correct language can be used to cover all those matters.
I should be perfectly happy if on reconsideration of the matters mentioned in Amendment No. 67 the noble and learned Lord thought that the wording of the noble Lord, Lord Meston, specifying appropriate standards or conduct or competence in general terms was better.
The Lord Chancellor: I do not want to lose sight of the object of the clause, namely to allow parties in small litigation of this kind in the county court to choose their own representative.
What are appropriate standards of competence in such a situation? If I am a litigant I may feel that my neighbour speaks better than I do. I may feel that the neighbour should be brought along. The Civil Justice Review found that at present the court has a power to allow the neighbour to speak. However, one never knows whether or not the court would allow it. Therefore it is right to give the client a statutory right to have lay representation of his or her choice subject to the safeguard against corrupt or unruly representation.
1026
I find it very difficult to graft on to that concept the idea of appropriate standards of competence. Appropriate standards of conduct are covered by the idea of "unruly". The idea is that the judge says what is to happen; in other words, he rules. A person who is not prepared to accept his ruling, is considered unruly and the judge will have the right to put him out and to refuse to hear him further.
However, appropriate standards of competence seem to be out of this matter altogether. I do not think that the neighbour should have some legal qualification, for example. One wants most of all a degree of conciseness and articulation, but it is not possible to specify that in relation to lay people. We want to make it fairly flexible, with the court excluding people only if otherwise it would do positive harm. The client wants to be represented in that way. Generally speaking, he is entitled to represent himself but he may have no competence. A party is entitled to represent him. We may go too far by trying to regulate standards of competence in that way.
Lord Renton: The main point that noble Lords on both sides of the Committee have in mind is the fear that the county courts' time will be wasted by people who mean well but do not know what is relevant to the matter in hand. It would help a great deal if my noble and learned friend would consider inserting in the Bill a measure to stop timewasting.
The Lord Chancellor: When I suggested in the Green Papers the idea that timewasting in relation to advocates should be controlled by the court, I was told that it might affect the interests of justice because people were entitled to make their case without being restricted in that way. The word "unruly" covers that because the judge may say, "Now, come on, you have told us that already. You do not need to tell it us all over again". If the lay representative persisted in disobeying that ruling, he would be unruly. That is the kind of conduct covered by the word "unruly". That is what the Civil Justice Review had in mind. The judge makes the rules there and then and, if a person does not obey those reasonable rules, he quickly becomes unruly and the judge need not listen to him any further. Most of those dangers are covered by that generous expression.
Lord Simon of Glaisdale: My noble and learned friend used the words "corrupt or unruly". I do not think that the word "corrupt" is in the subsection. Obviously, that kind of conduct should be controlled. Is that not an argument for accepting the view of the noble Lord, Lord Meston, and for excising the clause and leaving the matter to the discretion of the judge in control of the proceedings?
Lord Ackner: It should be recalled how much of the average county judge's time is spent dealing with litigants in person. In this ivory tower we tend to forget the great strain for a judge to cope day in, day out with the litigant in person. If he has to cope with the barrack-room lawyer in person, it is a wholly excessive strain on his patience. The word

1027
"competence" does not mean competence in relation to a trained advocate but in relation to someone who can follow the questions, read, recognise the issue and put the defendant's or the plaintiffs case. If he cannot put the defendant's or the plaintiff's case better than the plaintiff or the defendant himself, he is incompetent and will not help the plaintiff, the defendant or the judge and the judge should be entitled to say so.
10 p.m.
Lord Mishcon: Very briefly I want to say that the noble and learned Lord, Lord Ackner, is absolutely right when he asks the Committee to be realistic. It is all very well to give rights of representation to various categories of people. I am all in favour of it if it will help people to have justice administered to them when they cannot speak for themselves and cannot afford other representation or do not find it suitable.
However, one cannot leave the judge naked in his court, if I may respectfully put it that way, having to listen to representatives because the noble and learned Lord has made a direction that he should do so and finding it impossible within this Act to relieve his court of people who first of all (the example was given) behave dishonestly by pretending that there are no documents when they exist, and so on, and then insist upon making long speeches of complete irrelevance, which may even be of a political nature and goodness knows what else in that connection. One cannot leave him absolutely naked, without the right written into this Act, where he honestly and justly feels that the person is not competent and has not behaved properly. I am not talking about unruly conduct, which is usually looked upon as physical conduct and not mental conduct or oral conduct (if I may use that term).
We have to look carefully at this matter. I thought that it had to be so carefully looked at that I put in my paragraph (g) such qualifications in regard to conduct and so on as the direction might contain. I left it therefore to general terms. However, this is a serious matter and if the county courts are to deal with a lot of work and we are anxious to speed that up, let us not, as the noble and learned Lord rightly said, sit here in an ivory tower and not take into account what many of us had in the early days of our professional life; namely, experience in the county court, when some of us wondered at the impatience of many judges but more of us marvelled at their patience.
Lord Grantchester: More often than most I have sat on tribunals and courts hearing not only litigants in person but representatives of litigants who are not qualified. In those circumstances it is the duty of the judge and the tribunal to assist as much as they can the litigants and their representatives because it is their duty to achieve justice. When there are incompetent people in front of you, you have to treat them kindly and point out the way in which they should conduct themselves and their case.
If we are to achieve justice in the county courts, as judges we must act in that way and not seek to
1028
exclude such people because they do not show the proper competence and the appropriate standards of conduct that one would expect from a member of the Bar or a solicitor. One has to help them. It is one's duty to get the right answer; it is one's job to listen to them and to guide them. I do not support this amendment.
Lord Donaldson of Lymington: I should like to say a few words about this matter. I have heard suggestions that we ought to be careful about disbarred barristers and solicitors who have been struck off. I agree. I hope that the noble and learned Lord the Lord Chancellor will also consider solicitors' clerks who, by statute, have been made subject to an order by the Law Society that they never be employed by a solicitor. That is a category at which I believe one should look.
Finally, there is what I believe to be the most terrifying category of all; namely, the ex-barrister, or worse, I suppose, the barrister, who is a vexatious litigant so found. They do exist. The prospect of such a person appearing as a representative of a litigant in the county court fills me with horror.
The Lord Chancellor: Certainly I take account of what has been said but I bear particularly in mind —and this is what the Civil Justice Review had in mind —the point made by the noble Lord, Lord Grantchester. The real point that needs to be affirmed is the right of a party in this kind of small case to have a lay representative of his choice. I want to give effect to that principle and I shall try to safeguard it as best I can. I rather think that your Lordships as a whole may want to do the same.
Lord Meston: Of course that is right. It is a question of making sure that the Bill carries that into effect. Like the noble and learned Lord, Lord Simon of Glaisdale, I should like to think that what I seek to introduce into the Bill is inherent in the powers of the county courts as they stand. If there is any doubt about that, the powers of the judge to control his court ought to be in the broadest possible terms. He should not have his hands tied by a limited statutory power.
I go back to what the noble and learned Lord, Lord Ackner, said at the beginning of the debate on Clause 8. At the heart of this is the judge's ability to control the proceedings in his own court. I venture to suggest that the word "unruly" is not wide enough. As has been pointed out, the noble and learned Lord the Lord Chancellor added to it by saying "unruly and corrupt conduct". Corrupt conduct is not necessarily unruly. If an advocate, be he a lay advocate or a professional advocate, lies to the court he is not necessarily being unruly. But he is certainly acting in a way which falls short of the appropriate standards of conduct and possibly of the appropriate standards of competence. That is the phraseology of the amendment.
As to competence, if the lay representative is simply mildly incompetent one would hope and

1029
expect that he would be treated in the kindly way in which the noble Lord, Lord Grantchester, suggested. If, however, there comes a point when there is clearly gross incompetence and the litigant who is meant to be helped by this clause is in fact having his case seriously hindered, the court ought to have the discretion to refuse to allow that person to go on to represent the lay party concerned.
1030
Obviously it is too late to press the matter any further. Nevertheless, it is a matter which perhaps needs to be looked at again. I hope that the noble and learned Lord will look at it again. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 65 to 67 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 68:
Page 8, line 44, at end insert—
("(7) Any direction given under this section may be varied or revoked by a further direction given by the Lord Chancellor.").
The noble and learned Lord said: Amendment No. 68 is intended to give power to vary or revoke a direction in the light of experience. If we go to the statutory instrument for doing this the same power would be appropriate. I beg to move.
On Question, amendment agreed to.
Clause 8, as amended, agreed to.
Clause 9 [Penalty for failure to warn that hearing will not be attended]:
Lord Meston Lord Meston moved Amendment No. 69:
Page 9, line 17, at end insert—
("( ) In deciding whether to impose a penalty and the amount thereof, the court shall give preference to compensation by an award of costs to the other parties to the proceedings.").
The noble Lord said: Perhaps I may be allowed to speak also to Amendments Nos. 70 and 71 because this is intended to be a coherent set of amendments to Clause 9.
Clause 9 gives the courts the right to penalise parties who either do not turn up or who do not give due warning that they will not be able to turn up at court for a hearing which has been fixed. On the face of it that is entirely laudable, and I hope that what I am seeking to do is not seen as an attempt to water it down. My only concern is to ensure that it is a power which is used in proper cases only and that when it is used the court has in mind certain priorities.
When a person fails to appear at court or fails to give due notice of his desire to cancel the hearing or of his inability to appear, the court's time is wasted. The clause allows the court to penalise that person or his legal representative if he is responsible. The other people whose cases might have been heard on that day had the court known that there would be an ineffective hearing also suffer but they cannot be compensated. The main victim of such behaviour is the other party to the litigation but the clause does not seek to compensate him or her. However, it is hoped that in such circumstances the court can and will grant an order for costs, probably on an indemnity basis, in order to compensate the main victim of the failure to attend.
I am concerned that, in operating the provisions of the clause, the court has in the forefront of its mind the priority that should be given to secure compensation for the other parties, particularly where the person in default is of limited means. In other words, where there is a choice between compensating the other party to the proceedings or penalising under the clause and securing compensation for the public purse, the other parties to the proceedings should get first bite.
Default may not be the fault of the person who fails to appear but that of the legal representative. He is covered, because Clause 9(2) provides for that. I do not seek to argue today that legal representatives
1032
should be exempt nor to deal with the vexed question of immunity. However, it should be borne in mind that professional advocates who fail to appear at court or to give the court notice of a cancellation are likely already to be in pretty hot water. They will be answerable to the court and to their clients. A barrister will be answerable to his chambers, a solicitor to his firm and both to their professional body.
I should like to see written into the Bill the requirement that the court should consider whether the person conducting the proceedings can be or has been disciplined by his professional body for his responsibility for the failure in question. In other words, the court should think at least once if not twice before deciding to impose any additional jeopardy on the professional representative. I hasten to repeat that I do not seek exemption for lawyers or other representatives.
The basic proposition contained in the series of amendments is to impose an order of priority. The intention is to ensure, first, that the compensation does not detract from the compensation in costs which should go to the other party to the proceedings and, secondly, that the court has in mind the fact that professional people who are at fault should not be exposed to more jeopardy than is absolutely necessary.
The wording of the amendments may be imperfect. It is my own but I have borrowed at least some of it from Section 35 of the Criminal Courts Act 1973. I beg to move.
10.15 p.m.
Lord Wilberforce: I find Clause 9 as it stands totally unacceptable. Here we are dealing with civil proceedings in civil courts. Those courts are open to everybody who wishes to bring a case or who wishes to defend a case. Of course, it you want to present yourself in a court you must abide by the rules. If you do not, you must expect certain consequences. If you do not turn up when the case is supposed to be heard, there is a risk of the case being dismissed or judgment being given against you. There is a risk of costs being ordered against you, and if you are a professional representative there is a risk of your being reported to your professional body—the Law Society or the Bar Council. All that goes without saying and does not require legislation.
In my submission, that is totally sufficient to deal with those cases of default and failure to appear. I find it quite inappropriate that those matters should also be sanctioned by fines; in other words, that there should be a criminal stigma on the person who fails to comply with a professional obligation. Moreover, I suggest that it is quite inappropriate to erect a whole system of summonses, bureaucracy, service of the summons, appearance to justify and bailiffs enforcing the fine in order to carry out that additional sanction.
The proposals made by the noble Lord, Lord Meston, are entirely appropriate. They signal the right remedies. The proper thing to do is to impose

1033
a sanction by way of costs or disciplinary proceedings, or by dismissing the case or giving judgment in default. That brings home the very point that the clause as drafted is quite inappropriate.
I suggest that, in any event, the clause is unnecessary and should be deleted. In that case, I support the noble Lord, Lord Coleraine, who intends to oppose the Question that Clause 9 shall stand part of the Bill. At the very least we must accept these amendments suggested by the noble Lord, Lord Meston. With them, I should perhaps reluctantly be willing to accept the existence of fines as a last remedy, very much in reserve. I dislike that. Without an emphasis on the ordinary civil remedies liable to be imposed on people who do not comply with their obligations, I find it quite impossible to accept this clause.
Lord Grantchester: I also support the objections to this clause. As I understand Clause 9(4), a person who is in contravention of the clause and fails to turn up at a hearing can be fined. I assume from that that in due course, if he does not pay the fine, he can be sent to prison. I believe that that goes one step too far. I understand that non-payment of fines results in an automatic prison sentence. I cannot see that that provision is at all justified.
Lord Coleraine: I put my name down as intending to oppose the Motion that Clause 9 stand part of the Bill. However, the amendments of the noble Lord, Lord Meston, have cut most of the ground from under the clause. The noble and learned Lord, Lord Wilberforce, and the noble Lord, Lord Grantchester, have completed that task. Nevertheless, I should like to make a few points about the principle.
First, there are two points on the drafting of the clause which concern me. Subsection (1) is expressed so as to apply the clause to any hearing in the High Court or county court. I am not quite clear what that is intended to mean. However, there are so many hearings before and after a trial or hearing of an action to which the clause could apply that I doubt whether that was the intention.
On Second Reading I drew attention to the fact that I had not been able to find that proposal in the unified list of recommendations of the Civil Justice Review. Subsequently my noble and learned friend very kindly wrote to me. He told me that, although it is not expressly recommended in the recommendations, such a penalty was suggested by the Civil Justice Review as part of its proposed system of court control of case progress. That is made clear in paragraph 225 of the report. Plaintiffs would be required to give the court notice of disposal by settlement or otherwise before the date when the case is set down for trial, subject to a fixed penalty for failing to give such notice.
I may be very much mistaken, but I make two points about the suggestion. To suggest that a party has to give the court notice before the date fixed for setting down does not seem to make sense. It certainly does not throw much light on the clause
1034
now before us. My noble and learned friend went on to suggest, to me at least, that his thinking is that this clause should only apply to the formal hearing or trial of the action. I hope that he will be able to throw light on that.
The second point which I find perplexing is also reflected in the drafting of Clause 9 and provides that where a party to proceedings,

"(a) has failed to appear; or

(b) has failed to give the court due notice of his desire to cancel the hearing or of his inability to appear at it",

he may be summoned.
I am always aware that the little words "or" and "and" when appearing in a list of options do not necessarily mean what they seem to mean. However, I should think that there are here shown two heads of the offence whereas there should be only one. An offence should combine failure to appear and failure to give the court due notice. The defence outlined in paragraph (b) of subsection (3) appears to relate only to the second head of the offence. For that reason I wonder whether I am perhaps right and this should be amalgamated as one offence.
At Second Reading I described the principle of this clause as authoritarian and the treatment that it would mete out to barristers, solicitors, parties in person and lay people who represent them as draconian. I drew attention to a number of other offences that are contained in the County Courts Act and which are treated as criminal offences. I do not propose to weary the Committee with them tonight, but they are very strange bedfellows indeed with this offence.
What has to be said about the clause is that the powers are really unnecessary. The courts already have powers to penalise parties who fail to turn up. A court can order the costs thrown away by non-appearance to be paid by the culpable party or it can proceed to adjudicate on the proceedings in the absence of the party who fails to attend.
Speaking as a solicitor, if it is a solicitor who is at fault he can be ordered to pay the costs under the inherent jurisdiction of the court and no doubt also under Clause 51 of the Supreme Court Act 1981. In this respect the provisions of this clause go far beyond what is necessary and far beyond the test established in the case of Myers v. Elman, which was recently confirmed in the Court of Appeal. This case established that before an order for costs can be made against a solicitor personally he must be guilty of serious dereliction of his duty to the court. The test implied in this clause is considerably lower than that. The clause is unnecessary and may well cause much more trouble than it is worth.
I have no doubt that there are noble Lords who will suggest that anything which disciplines those who come before the courts and fail in the duties which the courts expect has the effect of assisting other litigants to take their place in the court and have their hearings disposed of expeditiously. However, one can go too far. I believe that this goes too far. I believe that reform must be for the benefit of court users and not of court administrators. That is the exact point at which this clause falls down.
Lord Simon of Glaisdale: The Committee has heard powerful objections to the clause. My noble friend addressed the Committee with authority on the matter. I agree with all that has been said in objection to the clause. However, there is one further matter that ought to be noted before we pass from it. As it is so very late at night, I shall do no more than refer to subsection (4) which is a particularly heinous example of a Henry VIII clause.
None of the excuses that were put forward in respect of earlier, similar clauses applies to this. It cannot be said to be consequential on anything. It empowers a member of the Executive to impose what is a suitable penalty. It empowers him to do that by negative resolution. Whatever can be said in favour of the earlier Henry VIII clauses, there is absolutely nothing to be said in favour of the Executive altering a penalty which has been imposed by Parliament and claiming the right to do so by statutory instrument subject only to negative resolution.
I should like to mention one other matter in this connection. The report of Sir Robert Andrew recommends that parliamentary counsel should come under the aegis of the Law Officers. When that was rejected, the noble Lord the Leader of the House very kindly and courteously wrote to me explaining that of course every statute is examined by the Law Officers. I asked a question about that in relation to Clause 1. My noble and learned friend did not answer it. He had a great deal to answer on that clause. However, I ask him again: were the Law Officers consulted on this provision? Was their attention drawn to it? Was their attention drawn to the fact that it was subject only to negative resolution? I do not adopt the Westland approach and seek to know what advice the Law Officers gave. I merely ask, so that we can know what control there is, whether they were consulted and whether their attention was drawn to these matters.
Earl Russell: I should like very briefly to add my voice to what the noble and learned Lord, Lord Simon of Glaisdale, has said. I indicated last week that there is a place for Henry VIII clauses. I must apologise for having somewhat misled the Committee last week by quoting a precedent from memory. I quoted earlier legislation as having referred to the pricing of wines. It referred, in fact, to the import and export of wines and therefore had the effect of importing statute into an area previously governed solely by prerogative. So Henry VIII clauses are not necessarily arbitrary.
I agree entirely with what was said by the noble and learned Lord, Lord Simon of Glaisdale. The fixing of the penalties for a breach of an Act of Parliament is an entirely inappropriate area for Henry VIII clauses. This is something to do with political obligation. Most of us have had to explain to our children and no doubt to others why we are bound to obey the law. In the end, the argument has to be that we do so because we are consenting parties to it. We are consenting parties to penalties laid down by Parliament.
1036
However, as soon as the penalties are fixed by executive action we shall have people subjected to penalties to which they have not consented. Making the punishment fit the crime will lead future Lord Chancellors into temptation, to which the noble and learned Lord will, I am sure, be well able to stand up but to which I fear perhaps some successor of his might be susceptible. This casts grave doubt on the theories of political obligation which are at present accepted in this country. In Parliament of all places we ought to look on that subsection with grave misgivings.
10.30 p.m.
The Lord Chancellor: The Civil Justice Review was set up for the purpose of identifying the causes of, among other things, problems of delay in the courts and recommending action to alleviate them. One of the key approaches to that is set out in paragraph 225 of the report. It says:
"The court itself will require to have an effective case monitoring system, applied either at the commencement of the case or at the point where it becomes defended, and will require notice of the defendant's intention to defend. The court record will show the date by which the case is due to be set down. The court file should record setting down within the prescribed period if that takes place. Plaintiffs should also be required to give the court notice of disposal by settlement or otherwise before that date, subject to a fixed penalty for failing to give such notice, payable by the plaintiff's solicitor. Three months before the due date for setting down the court should issue reminder cards".
It is on that basis that the clause has been suggested. Having regard to the nature of the delays which the Civil Justice Review analysed and the cause of them, it is right that the court should have power itself to deal with a party who has failed to appear or has failed to give the court due notice of his desire to cancel the hearing or of his inability to appear at it.
It humbly seems to me that questions of costs are already in the discretion of the court. There is ample power to award costs, a point discussed earlier. The suggestion was made that I should not restrict the power to award costs at the court's discretion. The power to award costs is there. Costs would be awarded in respect of the costs incurred by the other party if that other party is incommoded. This clause does not deal with that point as it is satisfactorily dealt with already. It deals with the damage to the progress of litigation generally which the making of an appointment that is not kept does to the other litigant. People who are not parties to these proceedings may not directly be affected by the outcome of the proceedings but may well be affected by the delays which are unnecessarily caused to the court in that way.
Two parties may settle a case and then fail to give notice to the court that the case has been settled. It may have been booked for quite a long period. The court sets aside the time to deal with the case but the parties settle and do not give the court notice. That kind of situation is extremely damaging to the progress of litigation and is not dealt with by an award of costs against the parties, because both

1037
parties may be in the same position. Therefore, I strongly suggest to Members of the Committee that such a clause is highly appropriate in that situation.
I turn now to the point made by my noble and learned friend Lord Simon of Glaisdale. I think that in accordance with usual convention the question of whether the Law Officers have been specially consulted is not a matter which is normally disclosed without their consent. Therefore, it is right—
Lord Simon of Glaisdale: I trust that my noble and learned friend will allow me to intervene for a moment. I raised this point in relation to Clause 1. Has there been any attempt to obtain the Law Officers' consent to answer, not a question of what advice they gave, but whether they were consulted?
The Lord Chancellor: No, not as yet. The situation is that I take the responsibility for this particular provision. Moreover, I think it only right that I should take such responsibility.
So far as concerns Amendments Nos. 69 and 71, I must say that I do not regard them as necessary in the circumstances of this case. For example, as I said earlier, it may well be that the other parties to the proceedings have agreed with the party in question that the case should be settled. That may be the reason for there being no appearance or notice to the court about the matter.
These are only powers to the court. I have no reason to suppose that they will be exercised except in very necessary circumstances and with due regard to all the circumstances. I cannot believe that the court would use such power except in circumstances where it felt that damage had been done to the public interest. So far as concerns awarding costs to other parties, this would be a separate matter for separate consideration. It is a distinct issue from the one dealt with by an award of costs.
As my noble and learned friend Lord Wilberforce said, it is perfectly possible that the court may have other options. For example, if a plaintiff did not turn up early in the case he might lose it. One of the greatest dangers in this respect, referred to by the Civil Justice Review, is where the case has been settled without notice. That strikes me as a situation which ought to be dealt with, if the circumstances so justify, by the use of such a power.
Therefore, I submit to Members of the Committee that this is a proper power for the court to have. I certainly think that it would be very sparingly exercised; but it would give the court power to enforce a programme of court control which the Civil Justice Review found was most important if civil justice in this country is to progress at a reasonable rate and if unnecessary delays are to be avoided.
Baroness Elles: I have been most impressed by the legal arguments put forward both for and against this clause. However, no one has suggested that there could be a perfectly simple way of knowing when people have settled a case and knowing whether they will appear in court. We live in an age where there
1038
are telephones, computers, terminals and many other means of communication.
It seems to me that the courts could organise themselves in such a way that the onus would be on them to find out if a plaintiff, or defendant, and the relevant people attending to his case will appear in court. If the court does not receive a reply within, say, 48 hours, it should then assume that these people will not appear. It seems to me that the onus and the inertia have been on the wrong sides. It also seems that if the courts are to have better, quicker and more efficient justice—as is the purpose of the Bill—perhaps they should be looking at simple and practical means of overcoming what are clearly very difficult and delaying procedures.
The Lord Chancellor: My noble friend has made the point. With the best information that it has, the court has assigned a date, and then for reasons about which the court has not been informed—for example, negotiations between the parties which have settled the matter—the hearing is no longer needed, and time is lost. In extreme cases a whole day of a judge's time and a courtroom may be wasted.
The clause merely gives the court a power—we do not say that it should be exercised—to deal with such a matter. I entirely agree with my noble friend Lady Elles that every practical arrangement to avoid such an occurrence should be made. However, the fact is that whatever arrangement is made there is always the chance that something is agreed between the parties which they do not intimate to the court. That is the mischief at which the provision is aimed. The power is a reasonable one for the court to have to deal with such an eventuality.
Lord Grantchester: The trouble that arises from cases being settled normally arises because they are settled late. When a case is settled the day before the hearing or in the morning before going into court, the court may waste a day. I have never heard of the court's time being wasted through a settlement and a failure to inform the court thereof. I do not believe that that is a difficulty which is met in the courts. I have never met it. This provision is a sledgehammer to crack a nut.
The Lord Chancellor: As I said earlier, my noble and learned friend Lord Hailsham set up the inquiry which examined the matter carefully and made an important point about court control of delay. It is one of the recommendations in paragraph 225. Having regard to the general acceptance of the Civil Justice Review, it seems to me to be appropriate for the court to have the power. If the noble Lord, Lord Grantchester, is correct, the power will be seldom exercised. I am entirely in favour of that.
Lord Meston: The noble and learned Lord the Lord Chancellor has explained the mischief at which Clause 9 is directed. We all understand the mischief. But as several noble and learned Lords and noble Lords have pointed out, the mischief generally speaking is adequately dealt with under the court's existing power in relation to costs and the disciplinary powers of the professional bodies.

1039
With reference to the point mentioned by the noble Lord, Lord Coleraine, the court now has a wider power than hitherto to order solicitors to pay costs. Recent Court of Appeal decisions have indicated the width of the court's power to order a solicitor to pay costs. That is a position which is perfectly respectable if one seeks to oppose Clause 9. I do not seek to do that in my amendment; I merely seek to impose a requirement to apply a certain set of priorities. Whether or not the power under Clause 9 is to be exercised sparingly, the power to order costs and the power to impose a penalty are distinct. The same facts may bring about the court's desire not merely to impose an order for costs but to impose a penalty under the clause. They are distinct provisions. My intention, as I hope I have explained, was to give priority in the mind of the court to the other party to the litigation to ensure that he gets his costs and does not have to take second place to the penalty imposed under this new clause.
The noble and learned Lord reminded us of the one situation which can be the fault of both parties—when they settle and both omit to tell the court. I have looked at my amendments and I cannot see how they detract from the power of the court in that situation to impose a penalty on either party or both under Clause 9. The considerations in my amendments would be otiose. In any event my amendments do not seek to tie the hands of the court; they simply put forward certain considerations in certain circumstances.
Accordingly, I respectfully suggest that there is still some force in my amendments. I do not intend to press them at this stage of the night but I should like to think about the position, study the debate and possibly come back at a later stage. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 70 and 71 not moved.]
On Question, Whether Clause 9 shall stand part of the Bill?
10.45 p.m.
Lord Coleraine: I do not think that there is much more to say at this stage except that this is a case where my noble and learned friend has identified one particular point where the parties and their representatives can throw the court administration into confusion. I think that is the case where some time before the hearing date a settlement is reached and by some extraordinary oversight nobody tells the court. During the period—it may be a week or a month—between the settlement and the hearing date, the court could well fully use the two or three weeks which might have been set aside to deal with other litigants. In such a case the settlement may well have been in terms that the parties are to bear their own costs, so nobody has to come back to the court for an order for costs and it cannot be dealt with by way of costs. I should have thought that this was the only case in which such an offence should produce this result. I feel that there must be better ways of cracking the nut than with this sledgehammer.
1040
Having said that, there is the question of the case which is settled just before the hearing. It might be settled the night before but nobody tells the court. It may be that they should have told the court, but the court will find out pretty soon the next morning what has gone wrong: nobody is there and the case has been settled. Although proceedings will be slightly put back, the effect will not be very great. So the problem does not arise in cases where settlements take place immediately before the hearing date.
The final point is that I ask my noble and learned friend whether I am right in thinking that this clause is only intended to relate to formal hearings of the trials of actions and not to other interlocutory hearings.
The Lord Chancellor: The main matter is the one that I have mentioned. The possibility of occupying the time for appointments on an interlocutory basis can also arise. Since I have been in this office I have certainly come across many occasions in looking at the history of cases that have been brought to my attention by members of the other place, when somebody, having applied to set aside a judgment, has asked for an appointment, one has been made, nobody has turned up and no notice has been given to the court. That is very wasteful of the court's time and resources and I think it right that the court should have the power to deal in general with the situation described in Clause 9.
In considering the future, I shall certainly take into account all that has been said. In the meantime, I hope Members of the Committee will agree that Clause 9 should stand part of the Bill.
Clause 9 agreed to.
Clause 10 [Administration orders]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 72:
Page 10, line 25, leave out ("administration").
The noble and learned Lord said: Amendment No. 72 is a drafting amendment to new Section 112A(4). The proposed subsection (3) makes it clear that the proposed subsection (4), which prevents creditors from cutting off supplies of gas, electricity or water, is to apply in cases where either an administration order or an order restricting enforcement is in force. As presently drafted, however, the proposed subsection (4) refers only to administration orders, and this amendment clarifies that both sorts of orders are intended to be included. I beg to move.
On Question, amendment agreed to.
Clause 10, as amended, agreed to.
Clause 11 [Assessors]:
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 73 and 74:
Page 11, line 25, leave out ("whether or not").
Page 11, line 27, at end insert—
("(2B) In any proceedings prescribed for the purposes of this subsection a district judge may summon to his assistance one or more such persons even though no application has been made for him to do so.").
The noble and learned Lord said: Amendments Nos. 73 and 74 are drafting amendments in

1041
clarification. They make it clear that when rules of court permit district judges to sit with assessors the presumption will be, as for judges, that an application of the parties is required but that rules of court may go on to dispense with that requirement. I beg to move.
On Question, amendments agreed to.
Lord Renton Lord Renton moved Amendment No. 75:
Page 11, line 32, leave out ("with the consent of the Treasury").
The noble Lord said: The noble and learned Lord, Lord Simon of Glaisdale, has asked me to move his amendment because, quite frankly, he is feeling the lateness of the hour. The amendment seeks to leave out from page 11, line 32, the words:
"with the consent of the Treasury".
In Clause 11 we are amending the County Courts Act. When we come to subsection (3) of proposed new Section 63 of that Act, we find it states:
"For subsection (4) there shall be substituted—
(4) In such cases as may be specified by order made by the Lord Chancellor with the consent of the Treasury, the remuneration of any assessor summoned under this section shall be paid, at such rate as may be so specified, out of money provided by Parliament".
I find it strange that in a matter which really deals with the internal organisation of government we should find that the noble and learned Lord the Lord Chancellor has to obtain the consent of the Treasury. That does not mean necessarily the Chancellor of the Exchequer; it means really an officer of the department. It is all the more strange that it should be so in this context, because the subsection states:
"out of money provided by Parliament".
The Treasury will have asked Parliament to put estimates before another place before the money can be made available at all, as I understand it. It really is absurd that the noble and learned Lord the Lord Chancellor, who has expressed reluctance at being asked to get the consent of the noble and learned Lord the Lord Chief Justice, should be required in the circumstances I have described to have to get the consent of a Treasury official.
I should have thought that perhaps it might be said that he should consult the Treasury, but even that would concern the internal affairs of government administration. We do it a great deal at the behest of the Government, but it is a terrible waste of time to write into primary legislation matters which are not fit subjects for legislation but are concerned with the internal administration of government. I do not want to labour the point. It is abundantly clear. I beg to move.
Lord Grantchester: This is a fairly standard provision in Acts of Parliament in which people are called on for assistance and to sit with courts and tribunals. There are specified rates.
Lord Renton: To follow what the noble Lord, Lord Grantchester, has said, the statute book is already littered with that phrase and phrases like it. Sometimes it is "with the approval of the Treasury", sometimes "with the consent of the Treasury" and
1042
sometimes "with the concurrence of the Treasury". This nonsense has been going on for years. I am inviting the noble and learned Lord the Lord Chancellor to help to bring it to an end.
The Lord Chancellor: There are some things which the Lord Chancellor is prepared to help with and some which he would rather leave to others.
It is a consistent requirement, as the noble Lord, Lord Grantchester, has said, that where a question of remuneration is to be settled the consent of the Treasury should be required. It is not correct to say that that consent is obtained from an official of the Treasury. The normal procedure is that an order made under a clause such as this would be signed by the Lord Chancellor and a certificate would be signed by two Lords Commissioners of the Treasury as concurring.
It is important, particularly in these days when judicial review is a powerful remedy, that the distinct statutory responsibilities of Ministers should be recognised. I believe that it is right that the Treasury's responsibility in that area should be recognised and that the Lord Chancellor's powers in that situation are interlocked with those of the Treasury in such a way that there would be distinct responsibility for the two aspects of the matter.
I hope that with that explanation the noble Lord will feel able to withdraw the amendment. I am very sorry that my noble and learned friend Lord Simon of Glaisdale is not here. I am sure that he will read the report of the debate. I gave a very similar explanation to him in respect of a similar amendment in the past.
Lord Renton: I am most grateful to my noble and learned friend for his lucid explanation. I do not find it convincing. It would be perfectly satisfactory as part of the internal arrangements of the Government for it to be provided by direction from the Chancellor of the Exchequer that two Lords Commissioners of the Treasury should sign the document which the Lord Chancellor has passed over to them. It is totally unnecessary to write it into the statute book.
As the hour is late and as my noble and learned friend has given his explanation, however unconvincing, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 11, as amended, agreed to.
Clause 12 agreed to.
Clause 13 [County court rules]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 76:
Page 12, line 16, after ("rules") insert—
("Rules made by virtue of this subsection applying any provisions may apply them as amended from time to time."").
The noble and learned Lord said: Amendment No. 76 makes it clear that the application by county court rules of other rules of court includes later amendments made to those rules. I beg to move.
On Question, amendment agreed to.
Clause 13, as amended, agreed to.
11 p.m.
Lord Hacking Lord Hacking moved Amendment No. 77:
After Clause 13, insert the following new clause:
("Standards of performance and service.
—(1) In discharging their functions under sections 27 and 28 of the Courts Act 1971, the Lord Chancellor, the Minister for the Civil Service, the Secretary of State for the Environment, and the Treasury shall ensure that reasonable standards are met and can be maintained for the unified administrative courts service with a view to promoting efficiency and avoiding delays in the work of the Supreme Court and county courts.
(2) The standards referred to in subsection (1) above are standards of performance and service including targets for the time within which any functions or duties will be discharged.").
The noble Lord said: It seems to be my lot to move the final amendments at a rather later hour of each night of the Committee's sittings. I do not ask noble Lords again to address their attention to the amendment that I moved last Tuesday night, but I ask them to consider the two amendments standing in my name and those of the noble Lord, Lord Mishcon, and of two other noble Lords. We consider these to be important amendments.
Perhaps the noble and learned Lord the Lord Chancellor and the Leader of the House or his representatives on the Front Bench will give us some assistance. Perhaps the noble and learned Lord will tell us whether he is willing, between now and Report stage, to meet representatives of the Law Society, the Bar Council and other persons representing, for example, the consumer associations, which all have a deep and important interest in the amendments. If he did that, the kind of discussion that we would have had if there had been a greater attendance tonight might be had on a rather more informal basis.
The other assistance that I ask of the Government Front Bench is that, if the two amendments are tabled again on Report, they are discussed when there is a likelihood of a greater attendance in the Chamber so that they may be considered by a more representative Committee.
The Lord Chancellor: With regard to the first point raised by the noble Lord, I have made it plain to the Law Society, the Bar and all interested bodies that I am willing to meet them at any time to discuss any matters connected with my responsibilities which they wish to discuss. If someone wants to arrange a gathering such as the noble Lord suggested, I shall be happy to meet the people concerned.
Perhaps I should take this opportunity to say that I am considering introducing an amendment to deal with the subject covered by Amendment No. 78. As noble Lords know, a debate has been going on for quite a time between the Parliamentary Commissioner for Administration, successive Lord Chancellors—first my noble and learned friend Lord Hailsham and then me—and the committee in the other place which is responsible for the jurisdiction of the Parliamentary Commissioner for Administration in connection with actions by officials of the Lord Chancellor's Department who are made available to the courts for the administration of the courts. The wording of the Parliamentary Commissioner for Administration
1044
legislation under which he operates makes it difficult for me to agree that he has jurisdiction over those officials of the Lord Chancellor's Department who carry out administrative functions of the courts because his jurisdiction is limited to administrative acts which are administrative acts of the Lord Chancellor's Department. Unless the court were part of the Lord Chancellor's Department—and no one would like that—the jurisdiction is excluded.
I have never wished to exclude the Parliamentary Commissioner for Administration from any consideration of what my officials may or may not have done. I do not in any circumstances seek to protect them from examination of their actions in a suitable case, but I consider it necessary from the point of view of the independence of the courts and the judicial process to ensure that I did not in any way allow the Parliamentary Commissioner to deal, with my consent, with matters outside his jurisdiction in that area.
Having considered the matter, I think it may be possible to make a provision enlarging the jurisdiction of the Parliamentary Commissioner for Administration but still securing the independence of the judiciary, judicial activities and the judicial process. I therefore hope—and this is as far as I can go at the moment—to bring forward at Report stage an amendment that noble Lords will feel might solve this rather difficult problem. It is not an easy area in which to get a satisfactory boundary but I hope that we shall be able to do so. That may be of interest to the noble Lord.
So far as concerns the other question about the timing of the consideration of a particular amendment, the noble Lord dealt with the time at which it was tabled. I support that primarily the time at which it is considered will be in question. I do not think that I can do more than undertake to bring his desire to the attention of my colleagues who are part of that wonderful mechanism known as the usual channels in the hope that the noble Lord's wishes at least to some extent may be fulfilled if he deals with the matter at Report stage. It may well be that we shall be able to achieve some agreed position on this matter by that time.
Lord Renton: Before the noble Lord replies, perhaps I may briefly mention that when we come to Clause 19 the noble Lord, Lord Meston, and I will move an amendment to make the Lord Chancellor's Department or any official of it subject to the jurisdiction (if that is the right word) of the ombudsman. I feel, and I think that probably the noble Lord, Lord Meston, also feels, that it would be far more appropriate if the Parliamentary Commissioner for Administration were to have that responsibility. I mention this point simply because from the most interesting and acceptable statement just made by my noble and learned friend, I am not quite sure whether when he considers this matter and brings a proposal forward at Report stage, there will be anything said in what he proposes about the administration of his own department. I think that it would be helpful to know that at this stage.
The Lord Chancellor: The administration of my department is already subject to the Parliamentary Commissioner for Administration. As I said earlier, the only difficulty is that the jurisdiction is directed in this area at the administration of my department. Even though officials of mine support the judges in the court, the administration of the court that they carry out is not part of the administration of the administration of my department. But there are some areas that they cover which it may be appropriate for him to examine. The question is whether we can find in this difficult area a suitable formulation to define what is proper, as it were, for the judges and their instructions on the one hand and what it is proper for the Parliamentary Commissioner to look at on the other hand. That is the problem.
I entirely agree with the view that it would probably be more appropriate, if anyone is to oversee this area, for it to be the Parliamentary Commissioner for Administration, who acts on requests by Members of the other place, rather than the legal services ombudsman.
Lord Mishcon: Far be it for me to call anybody to order. I suppose that I am usually a sinner myself. But I understand that Amendment No. 78 has not yet been called and Amendment No. 77 alone has been called. I rise to say that by arrangement with the noble Lord, Lord Hacking, I was due to move Amendment No. 78. Therefore I have been waiting for an opportunity to do so. Obviously I have listened to what the noble and learned Lord said. The last thing that I want to do is to extend the debate on this amendment. I have heard what the noble and learned Lord has said with distinct pleasure. Maybe it would be very helpful if when Amendment No. 78 is called I could utter one sentence which might assist him.
The Lord Chancellor: I am extremely grateful for any assistance. I certainly did not intend any discourtesy to the noble Lord. I think in moving Amendment No. 77 the noble Lord, Lord Hacking, referred to Amendment No. 78. It was for that reason that I thought to give that information. But I shall be delighted to hear the noble Lord at the appropriate time.
Lord Grantchester: I had wished to speak to Amendment No. 78, so should I wait until the noble Lord, Lord Mishcon, has moved the amendment? I was about to speak in case he failed to move it.
Lord Hacking: Perhaps I may wind up the discussion on Amendment No. 77 and say that, in view of the helpful answers of the noble and learned Lord and his expressed willingness to discuss both Amendments Nos. 77 and 78, and in view of his further kindness—he has much greater access to the usual channels than I do—in offering to send an appropriate message down the usual channels, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mishcon Lord Mishcon moved Amendment No. 78:
After Clause 13, insert the following new clause—
("Investigations by Parliamentary Commissioner for Administration
. Notwithstanding the provisions of section 5 of and paragraph 6 of Schedule 3 to the Parliamentary Commissioner Act 1967, the discharge of all or any functions or duties of any kind whatsoever by officers and other staff appointed under section 27 of the Courts Act 1971 shall be subject to investigation by the Parliamentary Commissioner for Administration.").
The noble Lord said: I am going to suggest, if I may—and the suggestion is made most respectfully to the noble Lord, Lord Grantchester, as well—that having regard to the importance of this amendment we do not move it at this stage, especially as the noble and learned Lord has said that there will be an amendment at Report stage brought before us. I would have thought at this hour, having regard to the importance of the matter, I should not move the amendment.
The Lord Chancellor: Before the noble Lord sits down, could I make it clear that I said that is my intention. I hope I shall be able to carry it out. I do not give a full undertaking because we have not yet completely solved the difficult question, but I certainly have every intention of bringing forward an amendment if I possibly can in time for Report.
Lord Mishcon: That is good enough for me.
Lord Grantchester: I understood that the noble Lord, Lord Mischon, was going to move Amendment No. 78 so I could say something. He has now not moved it. If I am out of order I can only create trouble later on.
Lord Mishcon: The last thing in the world I want is to create trouble for the Committee or to be a party to it. I beg to move.
Lord Grantchester: I wanted to make one observation, and I thank the noble Lord, Lord Mishcon, for allowing me to do so.
The suggestion of dealing with maladministration within the court system applies equally to the tribunal system, some tribunals being under the control of the Lord Chancellor's Department and some not. As a result of that, some tribunals now recompense litigants where there has been maladministration, but those under the Lord Chancellor's Department do not, as I understand it. I hope that the whole problem of maladministration within the courts and tribunals system can be looked at and that this will not be confined purely to the county courts.
The Lord Chancellor: I shall certainly have that in mind. I do not think the question of whether compensation is paid is precisely the same question, but they are obviously related.
Lord Mishcon: On that basis and at this stage, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Viscount Ullswater: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

United Medical and Dental Schools Bill [H.L.]
Returned from the Commons agreed to with amendments; the amendments considered and agreed to.
House adjourned at a quarter past eleven o'clock.