Courts and Legal Services Bill [H.L.]

HL Deb 23 January 1990 vol 514 cc1008-47

8.40 p.m.

House again in Committee.

Clause 8 [Representation in small claims and certain other cases]:

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 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 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 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 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).

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 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 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.

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 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 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 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 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.

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, 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 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 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 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 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 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 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 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 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.

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 "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 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 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.

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 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 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 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 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 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,

1. "(a) has failed to appear; or
2. (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.

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 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 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.

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.

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 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 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 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 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 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 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 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 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 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.