Courts and Legal Services Bill [H.L.]

HL Deb 23 January 1990 vol 514 cc927-90

3.9 p.m.

The Lord Chancellor (Lord Mackay of Clashfern)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee. —(The Lord Chancellor.)

Lord Simon of Glaisdale

My Lords, before your Lordships go into Committee on this Bill, perhaps I may ask my noble and learned friend or the noble Lord the Leader of the House how many days it is proposed to give for discussion in Committee; and what hours will your Lordships be expected to sit? I ask that question because the original allotment was four days. One day has now been added, though it was put on the Order Paper only yesterday; and, as your Lordships will understand, that is a grossly inadequate time for the discussion of such a Bill.

As for the length of sittings, I was assured that the Committee would sit normal hours. Evidently, that means sitting at the latest until 10.30 p.m. or 10.45 p.m. The noble Lord the Chief Whip, who was kind enough to speak to me about the matter, did however warn that, if we fell badly behind, the Committee might have to sit longer hours. I see that we were at one, even though over the telephone.

We have so far had only one day in Committee and noble Lords were required on that occasion to sit until 10.45 p.m. After only one day in Committee, I saw on the Cross-Benchers' notice, which has the authority of the noble Lord the Chief Whip, a warning that on the third day of Committee— on Thursday—noble Lords may be required to sit late or very late. "Late" clearly means after 10.45 p.m. and "very late" must be considerably worse than that, probably after midnight.

In determining what is a reasonable period for discussion, one can compare this Bill with the Children Bill of the last Session, for which my noble and learned friend was responsible. Six days were given for discussion in Committee. But that Bill was quite uncontroversial. It was based on wide consultation and commanded general agreement. This Bill, on the other hand, stands in important regards in contradiction of the recommendations of a recent Royal Commission. It is of high constitutional importance, as the noble Lord, Lord Beloff, an eminent constitutional historian, pointed out at Second Reading.

There is another peculiar aspect of the Bill's discussion in Committee. At Second Reading a great number of noble Lords put their names down to speak. My noble and learned friend, very naturally and properly if I may say so, did not adopt the usual course of explaining each clause in succession in amplification of the explanatory memorandum. As a result we are bound to be a little slower than usual in ascertaining the effect and meaning of each clause.

Moreover, last Tuesday we discussed the very important matter of the resources that would be available to make Part I work at all. It soon became clear that the financial part of the explanatory memorandum bore no relationship to what was actually involved. My noble and learned friend understandably could not give figures in pounds, shillings and pence because Part I of the Bill is not to have effect until 1991–92. He gave a number of starting figures which require considerable working out and probing. In all parts of the Committee it was felt essential to try to clarify what resources should be available.

If ever a Bill required longer time in Committee than the Children Bill, it it this Bill. If ever a Bill of high constitutional importance was unsuitable for hustling through this House hugger-mugger, it is this Bill.

Lord Belstead

My Lords, I understand the concern of the noble and learned Lord that this important Bill should be considered properly in Committee. That is our constitutional duty. We are all agreed that it is something which we are determined to see done. I should like to give an assurance that there is no question of the Government trying to hustle the Bill through. However, it is the practice of the House, when we have a substantial Committee stage on our hands, that progress should be reviewed as the Bill goes along. I promise that we shall do that through the usual channels.

The noble and learned Lord was good enough to make the point that an additional day, making five days in Committee, as proposed at the moment, has been allocated on the Order Paper. However, perhaps I may add one point to what I have said. It must surely be for the convenience of every noble Lord to know where we shall reach at the end of the day so that we know what will be the business on the Bill on the next sitting day. If we are obviously falling short of reasonable targets for the different days, we shall have to face the prospect of having to sit rather later on certain days.

Lord Mishcon

My Lords, the noble and learned Lord, Lord Simon of Glaisdale, has the respect and affection of every Member of the House. I am sure that he will not think me discourteous if I say that one possible reason for the delay in getting through the provisions of the Bill is speeches of the length of the noble and learned Lord's speech on the mere subject of how much time we are taking. I say that with deep respect.

It is vital that this important Bill has the definite consideration of the Committee but that does not mean that one has to make a long speech to make a point on an amendment. It is rather sad that we did not make more progress on the first Committee day. Part II is an important part of the Bill—possibly, many Members of the Committee may think, the most important part. We are dealing today with a part of Part I, having completed a small part of it on the last occasion. I plead with the Committee and with the Leader of the House that we aim at completing Part I today, whatever time we have to sit to, in order that on the next occasion we may with certainty reach Part II and aim to complete the Bill in the five days allocated to it.

Lord Belstead

My Lords, the noble Lord is absolutely right. It was because the House took some time in getting started on the first day—we discussed only Clause 1—that it was agreed through the usual channels that there should be an extra day. I assure the noble and learned Lord, Lord Simon, that we shall keep looking at the matter as we go along. The noble Lord, Lord Mishcon, has made my point better than I did. It is essential that noble Lords should know where we shall reach at the end of the day. I join the noble Lord in expressing the hope that we reach the end of Part I today so that we can start Part II on Thursday.

Lord Renton

My Lords, I feel that we should finish Part I today. We should have no difficulty in doing so at a reasonable hour provided that we do not make our speeches too long. When my noble friend says that we shall finish in five days, I assume that he means five days starting from today, which would mean six days altogether.

Lord Belstead

My Lords, for the avoidance of doubt, no, I did not mean that.

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

Clause 2 [Transfer of proceedings between courts]:

Lord Hacking moved Amendment No. 19: Page 3, line 17, at end insert ("to the parties").

The noble Lord said: In moving this amendment I shall, with leave, also address Members of the Committee on Amendment No. 20, tabled in the name of the noble Lord, Lord Mishcon, and three other noble Lords.

Clause 2(1) substitutes Section 40 of the County Courts Act 1984 concerning the transfer of proceedings from the High Court to the county court. When the High Court makes the decision to transfer proceedings from that court to the county court, the authorities must consider to which county court the proceedings should be sent. The test provided under Section 40(4) of the County Courts Act is that the High Court in making its decision on the choice of county court should consider the convenience of the parties. Such matters as where the parties live, the distances to be travelled by witnesses, and so on, need to be considered.

The provision in the new proposed Section 40(4) omits the consideration of the convenience of the parties. Presumably the noble and learned Lord has omitted that provision because he is concerned that there should be efficient use of court resources, of continuous trial centres and perhaps, after computerisation, of a central computer records system which will indicate to those transferring cases from the High Court which county courts can most conveniently and expeditiously take a particular case. No doubt circumstances could arise where certain courts have less business than others and therefore those with less business would be ready and able to take a transferred case more quickly.

While it is important—and I recognise that fact in moving this amendment—for the courts to have freedom to consider the choice of court on the basis just described, in my submission it should not override the interests of the parties. There are two alternative provisions before the Committee designed to tackle the problem. It may well be that my amendment, which sticks entirely to the wording currently contained in the County Courts Act, is, or could be, a little inhibiting on the High Court. It may be that the amendment about to be moved by the noble Lord, Lord Mishcon, gives greater flexibility to the court. If Members of the Committee feel that way, I shall be happy to withdraw my amendment and tread—as I have already done and, I imagine, I shall do so again—in the footsteps of the noble Lord, Lord Mishcon. I beg to move.

Lord Mishcon

I agree with every word said by the noble Lord, Lord Hacking. I prefer the wording of my amendment for the very reason which he gives. I shall move Amendment No. 20 when my turn arises.

Lord Renton

I also agree. The method proposed by the noble Lord, Lord Hacking, for amending this provision seems to me to be preferable to that contained in the amendment to which I have put my name.

Lord Campbell of Alloway

I support this amendment. However, in considering them both I prefer that put forward by the noble Lord, Lord Mishcon, for the reasons that have already been given. It is crucial that one or other of these amendments should be introduced to ensure that administrative convenience shall not defeat the convenience of the parties. As some noble Lords will remember, Lord Atkin once had something to say about administrative convenience not being on speaking terms with the due administration of justice. Of course, that is really what this is all about.

The Lord Chancellor

The noble Lord, Lord Hacking, is right in saying that the reason we altered the wording is to make it possible for the court to take account of convenience generally. Of course the convenience of the parties is included in that consideration. However, I did not wish to restrict it to the convenience of the parties because, for example, if it was convenient for certain parties to have a long case in a particular court it may be very inconvenient from the point of view of other litigants wishing to litigate in that place. In seeking to dispense justice to all litigants, the High Court would want to take account generally of convenience.

I think therefore that there is very little between the amendment tabled in the name of the noble Lord, Lord Mishcon, and what I wish to achieve. If the noble Lord is willing to leave the matter with me I shall see that it is reconsidered. I intended to include the convenience of parties along with the convenience of all others who might have recourse to the court. These are matters for the High Court to consider in making such a transfer.

Lord Mishcon

Having regard to what the noble and learned Lord just said, and in the circumstances, I wonder whether he could simply accept the amendment I propose. I would hope that he do so and thereby the first acceptance by the Government of an amendment could be recorded. It would make the Government appear in a very reasonable light if, having agreed with everything said in regard to this amendment, the noble and learned Lord accepted it.

The Lord Chancellor

I have a moment to consider the amendment before it is formally moved.

Lord Hacking

In view of my preference for the second of these two amendments, the best course for me to take now is to withdraw the amendment. I leave it to the noble Lord, Lord Mishcon, to press the matter if he wishes to do so with Amendment No. 20. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Mishcon moved Amendment No. 20: Page 3, line 17, at end insert— ("having taken into account the convenience of the parties").

The Lord Chancellor

I think that it would be perfectly reasonable for me to accept the amendment. It may be that on consideration parliamentary counsel will wish to finish it in some way because the phraseology is perhaps not the most expedient. However, in order to make progress, I shall accept the amendment.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 21: Page 3, line 20, leave out from ("transfer") to end of line 22.

The noble and learned Lord said: In moving this amendment I shall speak also to Amendment No. 26. These two amendments make parallel provisions relating to transfers from the High Court to the county courts and to transfers from the county courts to the High Court.

Amendment No. 21 omits that part of the provision which provides that a transfer of a case from the High Court to the county courts does not prevent the enforcement in the High Court of any judgment or order made in that case before the transfer. These words were appropriate in the old Section 40 of the County Courts Act 1984—which is being replaced here in an amended form—because the question of transfer of enforcement proceedings was dealt with in a separate section; namely, Section 106. In this Bill, however, Section 106 is repealed and subsumed within the general transfer arrangements under this clause. Although this is a desirable simplification of the County Courts Act, it has the effect of making these words inappropriate. Clearly, when enforcement proceedings are ordered to be transferred from the High Court the intention is to prevent the judgment from which they arise being enforced in the High Court. That is the point of such a transfer.

Amendment No. 26, as I said, parallels this amendment but relates to transfers of cases from the county courts to the High Court. Exactly similar considerations apply. Noble Lords will remember that I sought to explain last week what I had in mind generally in this connection. I beg to move.

Lord Renton

It seems to me that the amendment proposed by my noble and learned friend undoubtedly represents better drafting than that which appears in the Bill. He has explained why there is this difference between the powers of the High Court and those of the county court as a result of this amendment. However, the reason is technical and results from what is contained elsewhere in the Bill. Therefore, I think that we should all support these amendments.

On Question, amendment agreed to.

3.30 p.m.

The Lord Chancellor moved Amendment No. 22: Page 3, line 33, leave out paragraphs (a) to (c) and insert—

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

The noble and learned Lord said: I should like to speak also to Amendment No. 27. The amendments are essentially drafting amendments. Amendment No. 27 seeks to change the way in which the old Section 106(2) of the County Courts Act 1984 has been incorporated into new Section 42 of that Act. The aim continues to be that when a judgment is transferred for enforcement, the court from which it is transferred remains responsible for it for the purpose of revision and appeal; in other words, if it is a High Court judgment transferred for enforcement, the High Court will be responsible.

The amendment makes it clear, however, that when a county court judgment is transferred to the High Court for those purposes, the High Court as well as the county court will be responsible for revision. That is because the High Court always exercises a supervisory jurisdiction over the county courts.

Amendment No. 22 merely ensures consistency in the drafting of the equivalent provision governing transfers from the High Court to the county courts. I believe that this is a drafting improvement. I beg to move.

Baroness Phillips

I shall not delay the Committee, but I am mystified as to why the noble and learned Lord has to bring forward so many amendments when this is the first time that the Bill has come into either place. We presumably employ skilful, and, I imagine, expensive legal experts to draft Bills. As far as I can count, there are about 20 of these amendments. They are straightforward, and one wonders why we have to change the Bill at this stage. Why was it not correct before it came to us?

The Lord Chancellor

I believe that it is fair to say that it is right to deal with these matters with a fairly open mind. If someone makes a suggestion which would improve what we have, we should try to make use of that suggestion. That is what I have done. Bills are generally drafted within government. When the Bill is open to public scrutiny, many people make suggestions. I have always taken the view that it is my job to do my best to get the Bill right in the light of all the considerations available. The amendments that we are discussing, and later ones, are intended to take account of that process. That is why I always listen carefully to what Members of this place say in the hope that I may be able to improve Bills still further.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 23: Page 4, line 9, leave out ("Act or) and insert ("County Courts Act").

The noble and learned Lord said: This is a drafting change to the reference to the County Courts Act 1984 in subsection (2) of the clause to achieve consistency. I beg to move.

On Question, amendment agreed to.

Lord Renton had given notice of his intention to move Amendment No. 24: Page 4, line 20, leave out ("by any procedure provision").

The noble Lord said: I shall not move Amendment No. 24, but I see that it is grouped with Amendment No. 25, which it is suggested has already been debated. That is an amendment tabled by my noble and learned friend. I was not aware that it had been debated and therefore it should have been grouped separately on the list.

The Lord Chancellor

My impression is that the amendment was debated with Amendments Nos. 17 and 18. It was debated in connection with the amendment moved by the noble Lord, Lord Hacking, to delete the court's power to strike out when an action was brought in contravention of a procedure provision. All the amendment does is add a requirement that, if the striking power is to be used, it can be used only in the event described in the amendment. We tended to assume that the court would not use the power except in those circumstances but, having regard to the amendment moved by the noble Lord, Lord Hacking, it was thought better to incorporate it. It is an example of the procedure that I described to the noble Baroness, Lady Phillips.

Lord Renton

I am grateful to my noble and learned friend. I am sure that he is right.

[Amendment No. 24 not moved.]

The Lord Chancellor moved Amendment No. 25: Page 4, line 24, after ["(b)") insert ("if the court is satisfied that the person bringing the proceedings knew, or ought to have known, of that requirement,").

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

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 26: Page 4, line 33, leave out from ("transfer") to end of line 35.

The noble and learned Lord said: I spoke to the amendment with Amendment No. 21. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 27: Page 5, line 1, leave out paragraphs (a) to (c) and insert—

1. ("(a) the powers of any court to set aside, correct, vary or quash a judgment or order of a county court, and the 935 enactments relating to appeals from such a judgment or order, shall continue to apply; and
2. (b) the powers of any court to set aside, correct, vary or quash a judgment or order of the High Court, and the enactments relating to appeals from such a judgment or order, shall not apply.").

The noble and learned Lord said: I spoke to the amendment with Amendment No. 22. I beg to move.

On Question, amendment agreed to.

[Amendment No. 28 not moved.]

Lord Prys-Davies moved Amendment No. 29: Page 5, leave out lines 23 to 26, and insert— ("(b) prescribing the circumstances in which a registrar or clerk may decide to transfer proceedings from one court to another after giving the parties an opportunity to make representations, and the procedure consequent upon any such transfer.").

The noble Lord said: The amendment seeks to achieve two things: first, that the decision to transfer proceedings from one court to another is taken by a registrar or clerk. As the clause stands, that important decision can be taken by any "officer of the court". Any "officer of the court" is widely defined in Section 147 of the County Courts Act 1984 to include, along with the registrar and the clerk, any bailiff, usher or messenger in the service of the court".

Given the importance of the decision, it is surprising that the Bill does not restrict the decision-making to an officer with the necessary experience, knowledge and wisdom. That would be a registrar or clerk. Secondly, the amendment would ensure that the parties to the proceedings are given an opportunity to make representations.

It is pointed out in the Notes on Clauses that the power of transfer is important if the courts are to ensure that judicial time is to be saved. The Notes on Clauses indicate that it is envisaged that the power will be used to transfer a case from a county court with a long waiting list to a county court with spare capacity. Clearly, we agree with that objective. Court resources are not to be wasted. It is a fair objective. Here again, however, it is important that regard should be had to the views of the parties. The system should be seen to be facilitating co-operation with the parties. It may be said by the noble and learned Lord that the parties are consulted in the vast majority of cases. That may be so, but we believe that that practice should be acknowledged in the Bill and converted into a duty. I beg to move.

Lord Renton

One effect of the amendment would be that the expression "officer of the court" which is in the Bill at line 24 on page 5 would disappear and be replaced by the expression "registrar or clerk". I am trying to find whether the expression "officer of the court" is defined in the Bill. It does not seem to be. If it is not and what is meant is a registrar or clerk, then it would be better to express it so.

Lord Hacking

Perhaps I may help the Committee. The term is defined in the County Courts Act. I shall look up the correct section. The term includes people such as ushers and messengers of the court.

The Lord Chancellor

As the noble Lord, Lord Prys-Davies, has said, the phrase "officer of the court" is defined in the statute into which the provision is being put. In that respect it has an advantage over the word "clerk" because "clerk" has no such definition. I should like to remind the Committee of the context in which the phrase applies. It is a power given to the county court rule committee to make arrangements. The Committee may take it that the county court rule committee would make appropriate arrangements to deal with the matter. As it is a matter of procedure, I suggest that it is right to leave it to the county court rule committee to prescribe the circumstances in which proceedings may be transferred by the decision of any officer of the court, whose identity is for the Committee to specify, from one court to another, and the procedure consequent upon any such transfer.

I have no doubt that the county court rule committee would think it right to enable the matters affecting the parties to be properly taken into account before a decision is made. I venture to suggest to Members of the Committee that these matters are best left to the county court rule committee, the statutory body with responsibility in the area.

Lord Mishcon

I tried to make this point on the first day in Committee and perhaps the Committee will bear with me if I make it again. This part of the Bill has been heralded as a way of making our procedures in court and our trials shorter in duration, quicker to come on and more economical in the course of the trial procedure. The noble and learned Lord deserves the thanks and praise of all of us for attempting to do that.

It has also been heralded therefore as something which exists for the convenience of the parties. Perhaps I may quote the previous amendment which was agreed to. It should be ostensibly and clearly on the face of the Bill, and I think that it would help if we made that intention quite plain. It does not stop the rule committee from borrowing or altering this wording, but the intent ought to be clear on the face of the Bill that the parties will be heard in regard to such matters of transfer. I feel that in the circumstances the noble and learned Lord may, on reconsideration, agree to the amendment.

The Lord Chancellor

I did not wish to take technical matters, but one of the consequences of the Bill under a later clause is to substitute a new name for the registrar. I shall consider what has been said but I do not wish to go further than that at present. I shall consider whether some alteration to what is in the Bill should be made in the light of what Members of the Committee have said. It is a matter for the rule committees. They are likely to wish to give opportunities to parties on a lot of matters where that is not expressly stated. It is one of their obligations to make sure that the procedure is fair. However, I shall consider what the noble Lord said.

Lord Mishcon

On matters of principle such as this I consider that the Committee should state its view. I say with the deepest respect that where the principle is right, unless there is a good reason to the contrary the Government ought to accept the amendment.

The principle is clear, and therefore if the noble and learned Lord cannot give an undertaking that these words or similar words will be incorporated in the Bill at Report stage he leaves me no alternative but to divide the Committee. I do not wish to do so. If the noble and learned Lord will say that he will favourably consider the amendment, I shall withdraw my proposal.

The Lord Chancellor

I am perfectly prepared to do that. I shall consider with favour any representation that the noble Lord has made, and this one perhaps with more favour than others.

Lord Mishcon

In the circumstances, I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 2, as amended, shall stand part of the Bill?

Lord Simon of Glaisdale

This clause and subsequent clauses amend by reference the County Courts Act and in some cases the Supreme Court Act. I think we are bound nowadays to accept legislation by such a reference but we have to consider the matter—as my noble and learned friend Lord Hailsham will remember—in relation to the Housing Act 1985. What was in question then was consolidation, or, as an alternative, reprinting the amended statute in the statutes in force. My noble and learned friend then managed to achieve both: first, the reprint and subsequently a massive consolidation.

I do not know whether my noble and learned friend the Lord Chancellor can say anything about the prospects of consolidation. Unless that is imminent, what is his view about the reprint of the statutes in force, which are very valuable to practitioners? If there is to be a reprint, there is no reason to wait until the Bill has passed into law. The editor of the statutes in force can perfectly well set machinery in motion at this stage. With that in view, perhaps my noble and learned friend the Lord Chancellor will say, if the editor has not already been approached, whether he will immediately be approached.

3.45 p.m.

The Lord Chancellor

I consider that the best way to deal with such amendments is by textual amendment of the basic statute—in this case the County Courts Act. For my part, if the Bill becomes law I should wish to pursue the question of consolidation of these statutes. That would be intended as a structure for the High Court and the county courts for some time to come.

On the question of seeking to give instructions before the Bill becomes law, I do not know that that would be wise in this case. Consolidation is certainly a matter which I would very much wish to have in mind.

Lord Simon of Glaisdale

I am most grateful to my noble and learned friend. I thought I had made it clear that I do not quarrel with textual amendments of this kind. They seem to me to be inevitable. Consolidation takes a long time and my noble and learned friend understandably could not hold out any immediate prospect. What can be done immediately is the reprinting of the statutes in force. I ask my noble and learned friend to be rather more forthcoming about that because it is of urgent importance to practitioners.

Lord Chancellor

I indicated that I would consider that. It will be some time anyway before these matters are brought into force, for the reasons which I explained last time regarding this part of the Bill. I shall consider what my noble and learned friend said.

Clause 2, as amended, agreed to.

Clause 3 [Remedies available in county courts]:

The Lord Chancellor moved Amendment No. 30: Page 5, leave out line 36 and insert ("—

1. (a) absolute or conditional;
2. (b) final or interlocutory.").

The noble and learned Lord said: This is a purely drafting amendment to subsection (2) of the new Section 38 of the County Courts Act 1984 to make it clear that in line 36 of page 5 there are two pairs of alternatives. As drafted, the provision is open to misunderstanding. I beg to move.

On Question, amendment agreed to.

The Chairman of Committees (Lord Aberdare)

If Amendment No. 31 is agreed to, I cannot call Amendments Nos. 32 to 36 inclusive.

Lord Hacking moved Amendment No. 31: Page 5, leave out from beginning of line 37 to end of line 18 on page 6 and insert— ("(3) A county court shall not have power to order mandamus, certiorari or prohibition.").

The noble Lord said: Clause 3(1) seeks to substitute Sections 38 and 39 of the County Courts Act 1984 and deals with the remedies that are available to the county courts in the orders which they make.

In the proposed new subsection (3) of the new Section 38 of the County Courts Act there is a prohibition on the county courts exercising certain powers which are used exclusively in the High Court in matters of judicial review. Those are the powers of mandamus, certiorari or prohibition. The Committee may recall that the effect of agreeing that Clause 1 stand part of the Bill—in particular that Clause 1(6) stand part—is that matters of judicial review will therefore remain in the High Court and will not be taken in the county court.

Under subsection (3)(b) of the proposed new Section 38 of the County Courts Act it is specified that county courts shall not have power, to make any order of a prescribed kind". Prescribed kinds of orders will therefore be subject to subordinate legislation. There are certain orders that are currently used in the High Court, such as Mareva injunctions which freeze the assets of another party when there are good grounds for believing that those assets may be dissipated and hence the plaintiff be deprived of the use of them. There is another order currently used in the High Court, an Anton Piller order, which gives certain rights of searching and seizing when there are good grounds for believing that documents or assets will be destroyed.

As it is proposed to give county courts extensive further powers and extensive further jurisdiction within the terms of this Bill, two important points arise. First, the orders to which I have referred are of importance to the High Court. They are sparingly used but on the occasions when they are used they are of considerable importance. If the Committee transfers under the terms of the legislation considerable further powers to the county courts, litigants in the county courts will be at a disadvantage on the special occasions when there is a need for such orders. In those circumstances, although the trial judge may be willing to give the parties those orders their lawyers will have to seek a High Court judge, explain the issues afresh to him and by that means obtain the orders they are seeking. That will cause a rise in costs and, I suggest, will diminish the efficiency of the county courts.

Secondly, although there is an express provision under the proposed new Section 38(4)(b) for the transfer to the High Court of proceedings when it is thought by a trial judge in a county court that it may be necessary to use such orders, there are two disadvantages. First, speed is of the essence, particularly when an Anton Piller order is involved, and, secondly, there is the matter of cost. It is for those reasons that I urge this amendment upon the Committee.

As regards the deletion of the whole of subsection (4) of the proposed new Section 38, it concerns the regulations which would follow from giving power under the legislation under the terms of the proposed subsection (3)(b). Therefore, those regulations are no longer needed. I beg to move.

Lord Lloyd of Kilgerran

I wish to raise a matter about which there is considerable anxiety and which arises out of the terms of the recent Copyright, Designs and Patents Act 1988. Anxiety has been expressed by the Chartered Institute of Patent Agents as regards why it is printed at the bottom of page 115 of the Bill that Section 290 of the Copyright, Designs and Patents Act 1988 is to be repealed. Incidentally, I am speaking against the amendment. I may be entirely wrong in raising this matter at this stage, but there is anxiety as regards how far regulations which I believe the noble and learned Lord said would be produced to enforce the wish to have certain patents and intellectual property cases sent to the county courts in order to save time and expense will be affected by this proposed new section, which deals with the remedies available in county courts.

I am sure that the noble and learned Lord will be able to reassure me that there is no intention under the Bill in the clauses relating to amendments to the County Courts Act to take away the rights that were given under the Copyright, Designs and Patents Act 1988. Those rights were accepted with some enthusiasm by the Chartered Institute of Patent Agents. Perhaps the regulations which now apply under the Copyright, Designs and Patents Act 1988 would be covered by subsection (4) of the proposed new Section 38 of the County Courts Act 1984 which is to be amended.

The Lord Chancellor

The purpose of this part of the clause is to deal with the orders that a county court should have power to make. As there is an express statutory prohibition against a county court having judicial review jurisdiction, paragraph (a) of the proposed subsection (3) is clearly correct. The noble Lord, Lord Hacking, does not wish to remove that.

As regards the point raised by the noble Lord, Lord Lloyd of Kilgerran, it is not my intention to cut down any existing powers of county courts in relation to patents and other matters covered in the recent legislation. However, under the terms of paragraph (b) of the proposed subsection (3) orders which are of a somewhat delicate kind—some people may call them draconian—will be used only in the High Court. The two types of orders that are principally in question are those that the noble Lord, Lord Hacking, mentioned—the Mareva injunction and the Anton Piller order. Neither of those is a particularly defined order. Both describe a group of orders.

Perhaps there are some circumstances in which it would be right for county courts to have power to grant some kinds of Mareva injunctions. The purpose of this clause is to enable us to consider these matters and to define the power of county courts by reference to such considerations. Before any power of this kind were exercised, considerable consultation would have to be carried out. However, these orders are quite difficult to define. To attempt to do so in a primary provision would have the effect that if one got the matter wrong one might create difficulties that would last for a considerable time. The present method of tackling the matter seems to me to give an opportunity for a proper definition and for a proper consideration of the circumstances. In these circumstances I believe that it would be right to leave in what this amendment seeks to take out.

I am aware that Mareva injunctions of a certain kind are quite commonly sought in matrimonial proceedings in county courts. One would have to consider whether it was appropriate to accept matrimonial proceedings if one was making a rule that Mareva injunctions generally were not available. I believe this is an appropriate provision to make in the circumstances.

Obviously one could reconsider the matter in the light of experience and of the development in county court procedures which I hope we shall see under the Bill if and when it takes effect. I hope that in the light of those considerations the noble Lord will feel able to withdraw the amendment.

Lord Hacking

In view of what the noble and learned Lord has said and the assurances that he has given the Committee, I am content at this stage to withdraw the amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 32 not moved.]

[Amendment No. 33 had been replaced by Amendment No. 31.]

4 p.m.

The Lord Chancellor moved Amendment No. 34: Page 5, line 46, leave out ("relief") and insert ("an order").

The noble and learned Lord said: In speaking to Amendment No. 34 I should also like to speak to Amendment No. 35. They are purely drafting amendments turning a reference to "relief given" to a reference to "order made". I believe that that is a drafting improvement. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 35: Page 5, line 47, leave out ("given") and insert ("made").

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

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 36: Page 6, line 15, leave out subsection (2).

The noble and learned Lord said: The amendment coincides with one proposed by the noble Lord, Lord Hacking. It removes the repeal of Sections 50 and 51 of the County Courts Act 1984.

When the Bill was prepared I had intended to repeal those enabling powers in view of the new wide powers given to the county court by subsection (1) of the new Section 38. That subsection allows the county courts to make any orders which the High Court may presently make. On reflection, however, I feel that it would be advantageous to preserve separate rule-making powers for the High Court and the county courts so that if necessary the regimes providing provisional damages and interim damages in each forum can differ so as to match the procedures of each. The amendment therefore removes the repeal.

There will be a consequential amendment to the repeal schedule, Schedule 13, to which I shall speak later. I beg to move.

Lord Hacking

I am very happy to join with the noble and learned Lord the Lord Chancellor in what he has just said.

On Question, amendment agreed to.

On Question, Whether Clause 3, as amended, shall stand part of the Bill?

Lord Simon of Glaisdale

The Committee will not wish to depart from the clause without noting once again that it embodies a Henry VIII provision, which appears on page 5, line 4. Moreover, the order making the Henry VIII provision is subject only to negative resolution, as the Committee will see from paragraph 7 on line 13.

From what was said to me after last week's debate I do not believe that those of us who spoke on the Henry VIII clauses made it sufficiently clear what is the constitutional mischief of a Henry VIII clause. That was perhaps because we took as the background the Children Act and the Second Reading of this Bill.

At different times in our history there has been a struggle as to who should have legislative power, the Executive or Parliament. That struggle has surged backwards and forwards at times. Under the Lancastrian kings Parliament made a great advance and was recognised to have the initiative in legislative matters. Then came the high-handed Tudors. Henry VIII took part himself and legislated under the Statute of Proclamations. He could make new laws; he could alter existing law. Therefore it is a matter of very considerable constitutional importance. That power of the Executive was not reasserted for many decades after the Glorious Revolution. With the second surge of bureaucratic advance in the 1920s the Henry VIII provisions, as they were illuminatingly called, came increasingly into our statutes. They were reviewed by the Donoughmore Committee.

I have never taken the categoric view that the Henry VIII provisions should in no circumstances come into our legislation. However, up to and including last Session, I understood that it was accepted that what the Donoughmore Committee said on this matter of great constitutional importance was still recognised. The committee said that Henry VIII clauses should be used only in exceptional circumstances: they should be clearly explained by the Minister in charge of the Bill concerned, who should justify their use to the hilt.

The matter came up again for the first time since Donoughmore in three Bills last Session. Some of us had the opportunity of discussing the matter on what is now the Children Act. Lord Elwyn-Jones took the lead. I understood that my noble and learned friend, who was in charge of the Children Bill, accepted that it could be used only in exceptional circumstances. He hastened to accept an amendment to take out words referring to the repeal of an Act of Parliament on the part of the Executive. He readily accepted what was urged from all parts of your Lordships' Committee and subsequently by the House, that if a Henry VIII provision were included in a statute it should not only be explained but it should be subject to the affirmative resolution procedure so that at that stage too it should be explained to Parliament what was required.

It was suggested in debate that notwithstanding that the Donoughmore recommendations had stood for so many years—from the early 'thirties to the late 'eighties—they must nevertheless be regarded as out of date because of the press of legislation that this Chamber and the other place now have to undertake. That begs the question that was canvassed at Question Time today, whether we really need so much legislation and whether we are not in fact grossly over-governed.

When the matter came up on Clause 1 my noble and learned friend justified it on two grounds. The first was that the subsection in question, subsection (4), did not give any power to make an order. He said that no fewer than four times. He said it in answer to the noble Lord, Lord Renton, saying that the noble Lord was wrong. He said it twice to me, saying that I was incorrect, and he said it again a fourth time to the noble Lord, Lord Mishcon. I do not believe that anybody was convinced by that. The words of the subsection are absolutely plain. Indeed, an order under that subsection can only be made under that subsection and not, as my noble and learned friend asserted, under subsection (1).

My noble and learned friend had a more valid argument; namely, that the Henry VIII provision was consequential. On that ground I believe that it could be justified once it was explained. The same applies here. The provision is consequential on what goes earlier. I should not venture to take a rigid line on the matter, but merely note that it is quite inappropriate that it should be subject only to negative resolution.

The Committee will certainly not wish to leave the clause without noting that for the second time in the Bill—the second time in three clauses—there is a Henry VIII provision. There is another of a far more mischevious character later. I do not oppose the clause being made part of the Bill, but we should note where we are going constitutionally. I ask my noble and learned friend whether we were correct last Session in drawing the inference that he accepts what was said in the Donoughmore Report and that in future its limitations will be observed.

The Lord Chancellor

The situations in which provisions such as those in new Section 38(4)(d) are drawn up vary a great deal. The power in question in the Children Bill was a wide power to deal with the precise provisions that were then being made. This is a different situation altogether. The noble Lords, Lord Prys-Davies and Lord Mishcon, were directly involved as was the late and very respected Lord Elwyn-Jones. He was concerned not so much about the general question as about the possibility that the power in the Children Bill would be used to repeal provisions which he thought of importance.

The situation here is different. We are considering enlargement of the powers of the county court and saying that they should not be allowed to be enlarged completely freely. There should be a possibility of restriction. I sought to explain what that involves. It is perfectly reasonable that in a power of that kind there should be a consequential power to deal with any enactment with which it might be necessary to deal in consequence of the regulations and of the exercise of that power.

I shall not go back over Clause 1(4). As the noble and learned Lord said, I made my position on that clear four times and I remain of the same opinion. This is a very proper clause and I ask noble Lords to pass it.

Lord Rippon of Hexham

I do not want to go back over Clause 1, but I understood from the stand-part debate on that clause that my noble and learned friend was willing to look at the way in which subsections (1) and (4) of that clause had been drafted in order to make the position clear, not least in regard to whether affirmative or negative resolutions were required. I hope that he can now repeat that assurance. We might return on Report to the drafting of Clause 1 and perhaps to that of Clause 82 which deals with the making of orders.

I wish to emphasise how much I support the comments of my noble and learned friend Lord Simon of Glaisdale on the constitutional importance of the Henry VIII clause. Such clauses vary. We tried to make it clear that there were circumstances in which they might be proper. When we consider Clause 1(4) again on Report, one might say that it was necessary to deal only with the jurisdiction of the courts in primary legislation whereas practice or procedure might well be dealt with in the way suggested by my noble and learned friend. Such clauses vary in the mischief that they cause.

It is important that my noble and learned friend gives an answer to the question of my noble and learned friend Lord Simon of Glaisdale: are the Government prepared to accept the primary recommendation of the Donoughmore Committee; namely, that while it did not disapprove of the use of such clauses in all circumstances, it said that they should be severely restricted and should always be explained and justified in the memorandum to the Bill?

4.15 p.m.

The Lord Chancellor

I certainly take the view that the restricted amendment powers which are dealt with here are not in the same category as the open amendment powers which were dealt with and described as a Henry VIII clause in the Children Bill. Many things have happened since Donoughmore reported, including the great development of the powers of the court in judicial review and the right to apply in the exercise of powers the underlying intention of the statute as the court gathers it. I have sought to make it plain in the Bill that that is what we desire to do. The Government certainly take fully into account the Donoughmore Committee's recommendations and I have sought to have regard to them, but, as I said earlier, the circumstances vary according to whether the clauses are in effect Henry VIII clauses.

Lord Simon of Glaisdale

I am much obliged to my noble and learned friend. The exchanges that we have had are important. My noble and learned friend obviously accepts the generality of the Donoughmore recommendations. He says that judicial review is a supervening circumstance, but he did not explain why that should affect the Henry VIII clause. I cannot see that it does so in any way.

The question is quite simple: who legislates? Is Parliament to be short-circuited and the Executive given the power to legislate? My noble and learned friend is right to differentiate between the two classes of case. One was a clear breach of the spirit of Donoughmore in the Children Act and one is bound to ask how the provision came into the Act. What kind of supervision of legislation is there nowadays if that can occur? My noble and learned friend is right to say that, where a provision is consequential, it may be justified as long as it is shown to be justifiable. I do not quarrel with that. I do not quarrel with consequential provisions of that kind, but we shall shortly find a far more heinous provision of the Henry VIII character in the Bill.

Lord Coleraine

Before we leave Clause 3, perhaps I may raise one small drafting point. I wish to ask my noble and learned friend whether it is appropriate in new Section 38(4) of the County Courts Act to refer to what regulations under subsection (3) may provide when subsection (3) does not appear to be a regulation-making subsection.

The Lord Chancellor

Subsection (3) is a regulation-making subsection because it contains the power to prescribe the order. Subsection (4) is intended to deal with the conditions of the prescription that may be made in relation to the orders.

Lord Coleraine

Is my noble and learned friend saying that, if the county court does not have power to make orders of a prescribed kind—we are talking about orders, not regulations—the regulation gives him the right to prescribe the orders which the county court may not make?

The Lord Chancellor

The aim of the regulation-making power is to enable the nature of the order that the county court should not have power to grant to be prescribed.

Clause 3, as amended, agreed to.

Lord Mishcon moved Amendment No. 36A: After Clause 3, insert the following new clause:

("Appeals

.—(1) An applicant may appeal to the county court against any decision made by a local housing authority which is or should be notified to the applicant under s. 64 of the Housing Act 1985.

(2) An appeal under subsection (1) above shall require leave of the county court, which leave shall be granted only if the county court is satisfied that there are reasonable grounds for believing that the decision appealed against is wrong").

The noble Lord said: Perhaps the Committee will indulge me in making a rather longer speech than I normally do in support of this amendment. It deals with the least privileged of our fellow citizens and urges a reform which was discussed on the first day of Committee when we considered the question of judicial review in this connection. I would remind Members of the Committee that one is dealing with a provision of the Housing Act 1985 which imposes a duty on local housing authorities to provide accommodation for homeless people with a priority need provided that they are not intentionally homeless. The priority category includes families with children and the pregnant, elderly or mentally ill.

In regard to most, indeed all, of the major provisions which deal with the question of welfare, the Committee will find in our legislation that an appeal procedure is provided for. In this connection there is no appeal provision at all. The history is as follows. Until 1983 the people representing the homeless who felt aggrieved by a wrong decision of the local authority could go to the county court and obtain a declaration from it that the determination of the local authority was wrong. That power of the court to make such a declaration was questioned in the case of Cox v. Thanet. It was there held that the only available remedy was a judicial review. On the last occasion when we dealt with this matter the noble and learned Lord said very fairly that the whole question of appeals and judicial review had been noted in the Civil Justice Review. Possibly neither he nor the Committee will mind if I quote exactly what the Civil Justice Review said at page 141, paragraph 750: A significant number of respondents pressed for the creation of a cheap, accessible local method for challenging local authority decisions in cases involving homelessness. Preference was expressed for a right of appeal to a County Court in such cases rather than applications to the High Court for judicial review, the latter being seen as a complex, lengthy and expensive method by which to obtain reconsideration of a decision which needed, of its nature, to take place with the utmost urgency. The Review Body noted the concern expressed by respondents, including the Law Society, the Law Centres Federation, NACAB, the National Consumer Council, Shelter (the London Housing Aid Centre) and the Royal Institution of Chartered Surveyors. A formal recommendation to change the system would have involved an investigation of the substantive law of homelessness and the process of judicial review, neither of which was in the scope of the Review".

Perhaps I may say that a nod was as good as a wink. The Civil Justice Review was saying—I hope that the Committee think I am fair in my paraphrase—"One ought to look at this urgent social matter and the right of appeal. Within our terms of reference we cannot make a recommendation but we have thought it important enough to draw the attention of the community to this social need."

When we looked at the question of judicial review on the last occasion that we dealt with this matter it was on the basis of giving the county court jurisdiction to listen to judicial review cases which dealt with homelessness and certain other related social problems. When he dealt with that submission the noble and learned Lord felt that judicial review was not at all the job of the county court. I shall not go into those arguments. They were redoubtable, as are most of the arguments advanced by the noble and learned Lord. In the end we had to concede that the proper procedure in this case was not a judicial review in the county court but might well be a question of an appeal to the county court.

To use again the expression "a nod is as good as a wink", I thought—and other Members of the Committee might similarly feel—that I was entitled to take the words used by the noble and learned Lord on that occasion as an intimation that at all events the question of giving the county court such a jurisdiction, and indeed giving the homeless people that kind of right, was in his mind and, if I may use an expression that has been used today before, favourably in his mind.

We have now come forward with this amendment. The noble and learned Lord thought that there ought to be some kind of clear indication as to where the right of appeal should be exercised in the county court. I believe that this amendment has succeeded in doing that because, as the Committee will see, subsection (2) of the amendment states: An appeal under subsection (1) above shall require leave of the county court,"— so that there is not the question of a queue of hopeless and ridiculous cases coming to the county court— which leave shall be granted only if the county court is satisfied that there are reasonable grounds for believing that the decision appealed against is wrong". For those Members of the Committee who may not be as familiar with the atmosphere of the county court as possibly I am, let me give a picture of the county court in such a matter, were such a right to be given. In a completely informal way the homeless person would explain himself or through a representative to the judge why the appeal was urgent and why the county court should hear it. I am sure that the learned judge in an equally informal way would ascertain from that person why the decision of the local authority was being challenged. On seeing that there was a strong prima facie case, if I may put it that way, leave would be granted and the matter would be heard. As in so many cases where leave is dealt with, it may very well be that because of the urgency the whole of the matter would be dealt with on the application for leave.

This is something which was supported by all parts of the Chamber on the last occasion. It is a pleasure to find with my name on this amendment the names of the noble Lords, Lord Renton, Lord Meston and Lord Hacking. Members from all sides of the Committee are with me on this amendment. We now have an opportunity to do something for the very least privileged of our citizens. I am sure that my words, however inadequate, will fall upon fertile ground when the noble and learned Lord comes to answer. I beg to move.

4.30 p.m.

Lord Renton

I too hope that my noble and learned friend the Lord Chancellor will regard the amendment with great sympathy. The noble Lord, Lord Mishcon, said in moving it that he was necessarily going to have to do so pretty fully. Therefore there is no need for me to repeat his arguments, which I entirely support. I would simply add the following.

A clear case is made out in injustice occurring to people who are homeless and for whom Parliament has made other provision in order to overcome their problem; but, as the noble Lord, Lord Mishcon, has pointed out, there is a gap in our legislative arrangements because there is no right or opportunity of appeal from the decision of the housing committee, which may have been taken very hurriedly and perhaps at a low level. Surely it is right that when we have the Bill before us we should use the opportunity to fill that gap, more especially as in doing so we shall be increasing the jurisdiction of the county court, which is the broad purpose of the whole of Part I.

I think we should be failing were we not to deal with the suffering of the homeless in the ways that the noble Lord, Lord Mishcon, has mentioned.

Lord Morris

One aspect of the amendment concerns me slightly; as the amendment is drafted, if an applicant seeks leave from the county court to appeal against the decision that had been made by the local housing authority by virtue of Section 64 of the Housing Act 1985, the court is required to be—I quote from subsection (2)— satisfied that there are reasonable grounds for believing that the decision appealed against is wrong". Surely that asks the county court to consider the facts upon which the original hearing came to the decision that it did. That could create a can of worms whereby the request for leave to appeal would mean consideration of the facts before the court of first instance. I put that in as a consideration.

Lord Alexander of Weedon

I should like to support the amendment. When there is consideration of whether somebody should be housed by a local authority a fundamental right is being adjudicated upon. Those against whom the decisions may go are those who are possibly least equipped to employ the machinery—even though in some ways it is a swift machinery—of seeking judicial review in the High Court. As we are increasingly learning, many of them are psychiatrically ill and have been released from psychiatric homes. Therefore, being mentally ill, they come within the category of those who fall for consideration of housing, as the noble Lord, Lord Mishcon, described. I believe that we should supply that category of our citizens with a cheap and effective access to the courts.

With regard to the point made by my noble friend Lord Morris, as I understand it the purport of subsection (2) is to ensure the there is, as in some areas of the law, a preliminary filter which will ensure that the court is not clogged up by hopeless or frivolous cases. In my experience in other areas, this can be operated effectively and well. It can lead to speedier justice where it is used with good sense by lawyers, if there are lawyers, or other representatives of the parties concerned, and with the co-operation of the court. Therefore, I do not see subsection (2) as an obstacle to what I would urge upon your Lordships as an important and beneficial addition to the range of remedies in the county court.

Viscount Bledisloe

I should like to inquire of those moving the amendment whether they are perhaps not inadvertently making a change in the substantive rather than the procedural law. As I understand it—and I do not understand it—the procedure at present is that one can challenge such decisions only by judicial review. That means that one cannot challenge the merits of the decision; one can only say that procedurally it has gone wrong or that no reasonable housing committee could have come to the decision in question.

Here it is sought to substitute an appeal to the county court. Normally when one has an appeal to the county court, or to any court, within certain limits that court substitutes its own discretion or its own decision for the decision of the body below. I appreciate that in subsection (2) leave is granted for the appeal to be heard only if the county court is satisfied that there are reasonable grounds for perceiving that the decision is wrong. That may be nearly a judicial review test, but once that leave is given is it not the case that the county court is then embarking on a perfectly straight appeal and in effect substituting its own decision for that of the housing committee? Therefore, is one not giving a much wider ground of appeal than exists at present rather than merely allowing matters to be dealt with cheaply and conveniently in the county court?

The Lord Chancellor

Although that question is directed against those who moved and supported the amendment, perhaps I may be allowed to have the first shot at answering it. The answer is undoubtedly yes; it is an attempt to change the basis on which the local authorities proceed.

The noble Lord, Lord Mishcon, kindly read out recommendations from the Civil Justice Review. There was no recommendation on this point. One of the reasons for that was that it was considered that any adjudication on the matter would require a consideration of the substantive law.

The Government have recently published the findings of a careful and lengthy review of the homelessness legislation which included consideration of right of appeal. The Government concluded that no changes to the legislation were necessary; that it provided an adequate safety net for those in priority need, homeless through no fault of their own. However, following the review, the Government are anxious that the legislation shall, in future, be administered in a quicker, fairer and more consistent manner. The Government propose to issue a new code of guidance to local authorities in connection with homelessness provisions, and a draft of that new code will shortly be issued for consultation.

Reference was made to the Children Act in earlier exchanges. One of the matters dealt with in the Children Act, with help from your Lordships and particularly from noble Lords on the Front Bench opposite, was to develop the procedure in local authorities for review by them of their own decisions in relation to children in care. It appears to me that the best method of dealing with that sort of case is by a review mechanism within the local authority itself.

My noble friend Lord Renton indicated that decisions may be taken hurriedly and at a low level. One of the features that has come out of the review is that in about 30 per cent. of authorities there is an internal appeal system in order that the matter may be reviewed within the authority at an appropriately high level. I believe that the right way forward is to encourage the other 70 per cent. of local authorities which do not have such a mechanism to introduce one. I believe that the proper method of dealing with this question is for it to be in the hands of the locally elected representatives. It is a delicate matter to interfere with a local authority's decision in an area of this kind.

In relation to the review of homelessness legislation, the Association of District Councils said that any formal right of appeal to a third party would only hinder the processing of applications and make a call on already limited resources. It thought it important that applicants should feel that procedures were fair and had been adhered to. It therefore encouraged districts—they are the principal housing authorities generally—to set up internal appeals procedures for homeless applicants. Another representation also favoured setting up an internal appeal system for dealing with complaints brought by homeless applicants. Within the next month or so the Government hope to consult with local authorities in respect of a new code of guidance dealing with the matter.

The Civil Justice Review body appreciated that the matter was appropriately to be dealt with in connection with a review of the substantive law of homelessness with which the Bill is not concerned. The total number of applications turned down by local authorities in 1988—the last year for which we have a complete figure—was more than 120,000. I said recently that the total number of county court trials was approximately 10,000; so we are dealing with a high volume of business.

A filter mechanism has been included but, as the noble Lord, Lord Mishcon, pointed out, to appreciate properly whether it would work in such circumstances one would require to know the facts of the case. It is hard to see that in such a case the leave provision would make much difference from the substantive hearing. There are other cases in which the situation is different and no doubt we shall discuss them later. However, in this type of case it is essentially a matter of fact that is in issue.

Therefore, I believe that there is at least a risk that, instead of helping applicants who require an urgent decision (I understand that, according to the revised code of guidance, my colleagues in the Department of the Environment will be advising that all applications should be dealt with within 30 days) the threat of an appeal provision could mean that the local authority would find it necessary to take up longer and more detailed inquiries which would tell against the interests of the applicants.

Naturally one is sympathetic towards our fellow citizens in particular difficulties. However, giving a right of appeal to the county court, without prescription of the grounds of appeal or the way in which they should be considered, is not necessarily to help them. A better way forward is to seek to improve the local authorities' internal machinery for dealing with such matters and not to seek to introduce in the county courts a new and novel load of this kind, particularly at this juncture when we are seeking to ask them to carry out more work of a different character.

Lord Renton

Before my noble and learned friend sits down, can he elaborate on an important point that he made? It concerns the internal appeal within the local authorities. The Government's homelessness review was published in December. It contains no suggestion or indication of any discussion concerning the right of appeal in such cases. As regards the internal right of appeal to which my noble and learned friend has referred—it is presumably informal and not obligatory—can he say when it started, how far has it gone and what is his opinion of the likelihood of it becoming general?

The Lord Chancellor

As I have already said, at present 30 per cent. of authorities have an internal appeals procedure. Under their powers to issue a statutory code of guidance my colleagues in the Department of the Environment wish to recommend the procedure to the other authorities so that they also will embrace that best practice. I submit to the Committee that at this juncture, and in the present state of knowledge, that is the right way forward.

Baroness Faithfull

I wish to ask my noble and learned friend to clarify one matter. When dealing with the Children Bill we requested that the appeal procedure should lie in the chief executive's department and not in the department involved which was the social services department. If, in this case, there is an appeals procedure, will it lie with the chief executive and not with the housing department?

The Lord Chancellor

That is a matter for the local authorities. I have discussed it briefly with those who know more about it. I have been told that in some cases the intimated decision is called into question and is then referred to the chairman of the housing committee as the elected officer with responsibility. He reviews the cases. In some he grants the application; in others he does not. Therefore, the point about low level is taken up. I do not know whether that is the uniform method. Perhaps it is right that elected representatives at a senior level should take the responsibility. I know that that is one method of dealing with the matter. There may be others.

Lord Hooson

I know that my noble friend Lord Meston, for whom I have the greatest regard, signed the amendment, but I have always had doubts about it. I have always believed that the view of the Association of District Councils was correct. I found the comments of the noble and learned Lord the Lord Chancellor most convincing on that point.

I believe it is essential that decisions made under Section 64 should be reached speedily, as should the final decision. I believe that if we adopted the amendment we should be following the wrong route. Furthermore, the volume of cases available—that is, 120,000—is a practical reason against the amendment because experience shows the kind of applications that will be made.

4.45 p.m.

Lord Mishcon

I hope that Members of the Committee will not think it too dramatic if I say that an opportunity has been lost. How different is the reply given today by the noble and learned Lord from the speech that he made on the first day of Committee. Referring to the Civil Justice Review he said: At paragraph 120 it stated that all public law cases should be reserved to the High Court. On the other hand, the review body referred to the problem of a local method of challenging local authority decisions in that area. However, it was thinking primarily by way of appeal. Although it did not go into the matter in great detail, it is plain that the primary option was for an appeal. No doubt an appeal provision could indicate the criteria which the Appeal Court would have in mind and would not leave the issue open as is the case in respect of judicial review".—[Official Report, 16/1/90; col. 587.] What does that mean unless the following: first, that the bent of the Civil Justice Review was that it should be by way of an appeal to the county court; secondly, that the noble and learned Lord did not find such a suggestion unfavourable; and thirdly, that he hoped that when such a proposal came forward it would indicate the criteria which an appeal court such as the county court would have in mind and, would not leave the issue open as is the case in respect of judicial review"? I wonder what has happened since last week to cause the noble and learned Lord to have a completely different idea about what the Civil Justice Review may have had in mind and how practical he felt the right of appeal to be.

I should not be emphasising those points if it were not that the noble and learned Lord's alternative fills me with apprehension. I mentioned—and this is not controverted—that this is the only type of important welfare provision we make where there is no right of appeal. A right of appeal usually means an appeal to a body other than the one which made the decision. If it is a decision which is queried within that body, it is usually called a right of review.

That was the position until 1983 when it was found by pure chance, if I may put it that way, on a legal decision that the county courts which had previously entertained these matters on an application for a declaration did not have that jurisdiction and that it should only be a question of judicial review. As a rule, those cases went on the basis that the local authority had misdirected itself in law. There were some decisions which said, "On construing the statute as we do, we do not regard this as a priority case", or, "We do not regard this as meaning that the homeless person has not brought his own homelessness upon himself. On prima facie consideration we believe that that is wrong. Therefore, the homeless person has no right to this preferential treatment". It has also been found that many local authorities differed in their interpretation of the statute.

It is not sufficient to say that at some date in the future there may be some sort of review procedure by an executive in the local authority. We have the chance here and now to put that matter right. We can give the county court that jurisdiction with the right, as the noble Lord, Lord Alexander, very helpfully pointed out, of seeing that the queues are not too many, certainly in regard to hopeless cases, by the matter being quickly looked at by the judge when he gave leave or refused leave. On the last occasion when the noble and learned Lord turned down judicial review in the county court, I thought he was openly saying to everybody that what is needed here is an appeal procedure to the county court and that he would look favourably on that. Therefore, we brought forward this amendment with all-party support. If the noble and learned Lord cannot change the tune which he played today—and I say that with all deference—then I should ask which tune the Committee wishes to play.

The Lord Chancellor

My position today is entirely consistent with what I said on the last occasion. I was then dealing with what the Civil Justice Review appeared to have in mind. However, that said quite plainly that before anything of that sort could be dealt with, there would have to be a substantive review of the law on homelessness. As regards the position I take today, that is consistent with what I said last time and I am not in a position to change it.

Lord Mishcon

I appreciate the courtesy of the noble and learned Lord. I wish to see whether there is a sympathetic symphony which will now be played by the Committee.

5.33 p.m.

On Question, Whether the said amendment (No. 36A) shall be agreed to?

Their Lordships divided: Contents, 73; Not-Contents,159.

DIVISION NO. 1
CONTENTS
Airedale, L.	Kilbracken, L.
Alexander of Weedon, L.	Kirkhill, L.
Amherst, E.	Listowel, E.
Ardwick, L.	Longford, E.
Blease, L.	Lovell-Davis, L.
Bonham-Carter, L.	Marsh, L.
Bottomley, L.	Mason of Barnsley, L.
Brooks of Tremorfa, L.	Meston, L. [Teller.]
Bruce of Donington, L.	Milverton, L.
Byron, L.	Mishcon, L.
Callaghan of Cardiff, L.	Molloy, L.
Carmichael of Kelvingrove, L.	Murray of Epping Forest, L.
	Nicol, B.
Cawley, L.	Oram, L.
Cledwyn of Penrhos, L.	Parry, L.
Cocks of Hartcliffe, L.	Phillips, B.
David, B.	Pitt of Hampstead, L.
Donaldson of Kingsbridge, L.	Ponsonby of Shulbrede, L. [Teller.]
Dormand of Easington, L.
Ennals, L.	Prys-Davies, L.
Evans of Claughton, L.	Renton, L.
Ewart-Biggs, B.	Rippon of Hexham, L.
Falkland, V.	Seebohm, L.
Gallacher, L.	Sefton of Garston, L.
Galpern, L.	Simon of Glaisdale, L.
Gladwyn, L.	Stoddart of Swindon, L.
Glenamara, L.	Taylor of Blackburn, L.
Graham of Edmonton, L.	Thurlow, L.
Gregson, L.	Turner of Camden, B.
Grey, E.	White, B.
Hacking, L.	Williams of Elvel, L.
Harvington, L.	Willis, L.
Hughes, L.	Winchilsea and Nottingham, E.
Hunt, L.
Hutchinson of Lullington, L.	Winstanley, L.
Jay, L.	Winterbottom, L.
Jenkins of Putney, L.	Wynford, L.
John-Mackie, L.

NOT-CONTENTS
Abinger, L.	Alexander of Tunis, E.
Ackner, L.	Allen of Abbeydale, L.
Ailsa, M.	Allerton, L.

Ampthill, L.	Killearn, L.
Annaly, L.	Kilmarnock, L.
Atholl, D.	Kitchener, E.
Attlee, E.	Lane, L.
Aylestone, L.	Lauderdale, E.
Belhaven and Stenton, L.	Layton, L.
Belstead, L.	Lloyd of Hampstead, L.
Blatch, B.	Long, V.
Bledisloe, V.	Lyell, L.
Blyth, L.	Mackay of Clashfern, L.
Bolton, L.	Mackie of Benshie, L.
Boyd-Carpenter, L.	Manton, L.
Brain, L.	Margadale, L.
Bridge of Harwich, L.	Marshall of Leeds, L.
Broadbridge, L.	Melville, V.
Brookes, L.	Merrivale, L.
Brougham and Vaux, L.	Mersey, V.
Butterworth, L.	Middleton, L.
Caithness, E.	Monteagle of Brandon, L.
Campbell of Alloway, L.	Montgomery of Alamein, V.
Campbell of Croy, L.	Morris, L.
Carnegy of Lour, B.	Mountevans, L.
Carnock, L.	Mountgarret, V.
Clanwilliam, E.	Munster, E.
Coleraine, L.	Nelson, E.
Colnbrook, L.	Nelson of Stafford, L.
Cottesloe, L.	Newall, L.
Cowley, E.	Nugent of Guildford, L.
Darcy (de Knayth), B.	Orkney, E.
Davidson, V. [Teller.]	Orr-Ewing, L.
Denham, L. [Teller.]	Oxfuird, V.
Diamond, L.	Pender, L.
Dilhorne, V.	Peyton of Yeovil, L.
Donaldson of Lymington, L.	Platt of Writtle, B.
Downshire, M.	Portsmouth, E.
Eden of Winton, L.	Pym, L.
Elibank, L.	Quinton, L.
Ellenborough, L.	Rankeillour, L.
Elles, B.	Reay, L.
Elliott of Morpeth, L.	Rees, L.
Erroll of Hale, L.	Renwick, L.
Faithfull, B.	Romney, E.
Fanshawe of Richmond, L.	Roskill, L.
Ferrers, E.	Sainsbury, L.
Fisher, L.	St. Davids, V.
Fraser of Kilmorack, L.	Saint Oswald, L.
Gainford, L.	Saltoun of Abernethy, Ly.
Gardner of Parkes, B.	Sanderson of Bowden, L.
Geddes, L.	Selkirk, E.
Gisborough, L.	Shaughnessy, L.
Goodman, L.	Skelmersdale, L.
Goold, L.	Somers, L.
Grantchester, L.	Somerset, D.
Gray of Contin, L.	Stedman, B.
Gridley, L.	Stodart of Leaston, L.
Griffiths, L.	Strange, B.
Grimston of Westbury, L.	Strathcarron, L.
Hailsham of Saint Marylebone, L.	Strathclyde, L.
	Strathcona and Mount Royal, L.
Halsbury, E.
Hanworth, V.	Strathmore and Kinghorne, E.
Harmar-Nicholls, L.
Havers, L.	Swansea, L.
Hayter, L.	Taylor of Gryfe, L.
Henderson of Brompton, L.	Terrington, L.
Henley, L.	Teviot, L.
Hesketh, L.	Teynham, L.
Hives, L.	Thomas of Gwydir, L.
Home of the Hirsel, L.	Tranmire, L.
Hood, V.	Trefgarne, L.
Hooper, B.	Trumpington, B.
Hooson, L.	Tryon, L.
Hylton-Foster, B.	Ullswater, V.
Ilchester, E.	Walston, L.
Ingrow, L.	Whitelaw, V.
Johnston of Rockport, L.	Wise, L.
Joseph, L.	Young, B.
Kaberry of Adel, L.

Resolved in the negative, and amendment disagreed to accordingly.

Clause 4 [Costs]:

5.1 p.m.

The Deputy Chairman of Committees (Lord Nugent of Guildford)

Amendment No. 37 pre-empts Amendment No. 38. However, it appears that it may be convenient for the noble Lord to take the two amendments together.

Lord Mishcon moved Amendment No. 37: Page 6, line 41, leave out paragraphs (c) and (d) and insert — ("(c) he has provided financial support to a plaintiff who has commenced or continued proceedings in the outcome of which he has no substantial interest.").

The noble Lord said: If Members of the Committee will be good enough to look at Clause 4(4) of the Bill they will see that there is provision for the circumstances in which the court may make an award of costs against a party. Those circumstances are:

1. "(a) he is a party to the proceedings;
2. (b) he is the legal representative of such a party;
3. (c) he has supported the bringing of the proceedings, whether or not financially".

It is paragraph (c) to which this amendment is directed. I fail to understand in a statute what the words "whether or not financially" really mean in the context of a party supporting the bringing of proceedings.

For example, if I know a plaintiff and say to that plaintiff, "I am absolutely delighted; I understand you are issuing a writ tomorrow for libel against the Daily Whatsit. You certainly have my support. Good luck". In those circumstances is that somebody who has supported the bringing of proceedings "whether or not financially", on the basis of course that I have not helped the proposed plaintiff financially at all? To have such vague words in a statute struck me, if I may say so with due respect, as being quite remarkable. In order therefore to give some positive nature to the provision the amendment reads that, (c) he has provided financial support to a plaintiff who has commenced or continued proceedings in the outcome of which he has no substantial interest".

I am speaking, as was indicated, not only to Amendment No. 37, but also to Amendment No. 38. I beg to move.

Lord Simon of Glaisdale

I wish to speak only to the second of the amendments. Paragraph (d) reads: he has an interest in the outcome of the proceedings". Perhaps I may put a case to my noble and learned friend which is very frequent in probate and other proceedings. Take the case of an executor propounding a will. A later lost will is discovered and brought in by way of counterclaim generally. The beneficiary or executor under the lost will will want to bind by the judgment everybody interested under any earlier will or indeed under an intestacy; otherwise he may find a series of actions against the new-found will. What he does is to cite all those people to seek proceedings. They are not parties to the proceedings. They have an interest in them. If they want to intervene they can and then become parties. If they do not do so I cannot for myself see why they should be liable in costs.

The theory of costs in our legal system, although it is now largely in the rules, was worked out by the judges on the basis of justice; that no one should be prejudiced by having to bring an action as to which he has a right to succeed.

If I borrow £20 from my noble and learned friend, promising to repay it after a year and if after a year he asks for it back, I am bound to give it back to him. If I toss him into an expensive or even inexpensive law suit in order for him to get back his £20, he ought not to find himself to any extent out of pocket because I have disputed and contested his right to recover his debt. That is so with every type of case.

If a third party is merely cited to seek proceedings because has has an interest but has not intervened to make it more expensive for the citing party, why, in justice, should he be liable in costs? I should be grateful if my noble and learned friend would consider that type of case.

Lord Wilberforce

Perhaps I may raise another point before the noble and learned Lord replies. In principle the amendment seems very reasonable, but I should like to ask the mover of it why it should not apply equally to defendants. Why does this apply only to plaintiffs?

There may be some point I have overlooked, but there are cases—and everyone will know the recent one—in which a defendant is supported by someone who has no financial interest in the case. It would seem right in that sort of case to give power to the court—it does not have to exercise it—to make an order for costs against such a person. I suggest that that point ought to be considered.

The Lord Chancellor

So far as concerns the Supreme Court, the wording of the law has until now in general terms given the court discretion to award costs against anyone. The court is left to exercise that discretion.

Over the years the courts found it very difficult to believe that anyone could be saddled with costs. For example, if a passer-by were to be taken in and told, "You will pay the costs of the proceedings," it would be said that Parliament did not intend that. That would be right; Parliament did not intend that. But it intended the court to exercise discretion. It no doubt trusted the court to exercise its discretion in such a way that a passer-by would not be saddled with the costs of proceedings in which he had no interest.

However, it developed the implications in such a way that in the Aiden Shipping case it was found very difficult to do justice under the implied conditions that the court had put forward. It was a case in which arbitrations were back to back. A and B were arbitrating, and B and C were arbitrating. It was in A's interest that the dispute between B and C should be dealt with in a particular way and B was required in effect to react to the actions of A. But A was not a party to the dispute between B and C.

Mr. Justice Hirst was faced with the conundrum late on a Friday afternoon. He thought that common sense suggested in that case that although A was not a party, A should be obliged to deal with the costs. The result has been a review of the development of the law of costs. We have sought to try to cover all the possible cases that have been illustrated in the authorities, but not in a positive way.

My answer to my noble and learned friend Lord Simon of Glaisdale, is that the conditions specified here are conditions that must be satisfied if an award is made. Those are necessary conditions for the making of an award; they are not sufficient conditions. The court must decide whether or not to make such an award.

With regard to the last illustration of my noble and learned friend of lending me £20 —

Lord Simon of Glaisdale

It was the other way round.

The Lord Chancellor

—if, quite contrary to his normal character, at the end of the year he refused to repay and I took action, I would be a party to the proceedings and therefore the court could make me liable as a party to the proceedings. However, I hope that in that case I would not be made liable.

This provision is to apply in the county court at all levels. We are trying to give guidance about the kind of people who should be considered. It is not saying that the courts should grant —for example, in the case of the disputed will —costs against those who did not appear to dispute the will even if the party bringing the counter-claim in that case wanted to bind them. But the court would have a discretion. All these costs shall be in the discretion of the court. We have sought in the light of the development to indicate the classes of people against whom the court might make an award of costs without leaving it as open as the very early legislation did.

Lord Mishcon

Before the noble and learned Lord continues, the argument could be shortened if both parties agreed as to what was being said. As I understood the noble and learned Lord, he talked in terms of this being guidance. Is he aware that subsection (4) reads: The court may only make an award of costs"?

The Lord Chancellor

Indeed; and I am saying that it is a necessary condition that it should be satisfied, but not a sufficient condition. The court has a discretion as to whether or not to award costs against people answering this description. There is no discretion to award costs against people answering any other description. That is the purpose of the provision. The mere fact that a person is covered by that list does not mean that the court will make an award against him. That is the point. It is a restriction of the people against whom an award may be made in order to provide clear guidance to all the classes of cases of which I know in which such an award has been considered.

5.15 p.m.

Lord Roskill

Will the noble and learned Lord the Lord Chancellor allow me to raise two matters resulting from what he has said? Those of us who have in the past tried personal injury cases —my noble and learned friend Lord Griffiths has much longer experience of that than I have —know that at the end of an injury case where a defendant is successful the defendant's counsel will rise and say to the judge, "My Lord, I ask for costs". The trial judge then looks at counsel for the plaintiff, who says either, "My Lord, it is legally aided," or, "It is a trade union case". In the former case there would be no order for costs. In the latter case, in my experience, the trade union invariably pays the costs. But I have never heard of any order being made against the trade union.

The other case that occurs to me off the cuff is this. Sitting in the Commercial Court, one has two different types of cases. The first is an ordinary shipowner charterer case. The shipowner is supported by his P&I club, or his defence club. The defendant may equally be supported by his P&I club or cargo underwriters may be exercising rights of subrogation. In any of those cases the Pamp;I club, the defence club and the cargo underwriter are supporting the claim. I can only say that I have never heard —and so far as I know nobody else has —of any order for costs being made directly against the P&I club, a defence club or cargo underwriters.

The noble and learned Lord suggests that it is merely an empowering provision. But, with great respect, it surely goes against the principle that somebody who is only in the background should even be able, under rule of court or otherwise, to be made liable for costs.

Lord Simon of Glaisdale

I read the Aiden Shipping case with great interest and entire agreement. I notice that my noble and learned friend was a member of the Appellate Committee. However, he has not answered the case that I put to him of the party cited in C proceedings. Why should a person, merely because he has an interest in the proceedings, who has in no way put the other party to costs be even within the reach of a costs order? That is the point that I understood the noble Lord, Lord Mishcon, was making. It seems to me to be a valid one.

Lord Prys-Davies

In support of my noble friend, perhaps I may say that I also have read the shipping case. The decision was taken at 5.45 in the evening. Can the noble and learned Lord the Lord Chancellor tell us exactly what interests are covered by Clause (4) (d)? The term is extremely wide. It could cover a social, moral, financial or legal interest. Can the noble and learned Lord explain what interest one has in mind?

It may very properly be said in support of paragraphs (c) and (d) that we can rely on the courts to exercise this jurisdiction with reason and with justice. I am sure that in the vast majority of cases that would be the position. However, if and when problems arise it will be claimed that these two paragraphs have expressed the jurisdiction in very wide terms without any limitations. That causes us considerable concern.

The Lord Chancellor

It is necessary to review the provision against the background of the existing law. Section 51 of the Supreme Court Act 1981 states: Subject to the provisions of this or any other Act and to rules of court, the costs of and incidental to all proceedings in the civil division of the Court of Appeal and in the High Court, including the administration of estates and trusts, shall be in the discretion of the court, and the court shall have full power to determine by whom and to what extent the costs are to be paid". That is a completely open power. We are proposing that this section should now be used in the county court as well as in the High Court. I believe that it is desirable to indicate at least in broad terms the limits of that power. That is the purpose of the clause. But we are not in any sense saying that the power should be exercised.

My noble and learned friend Lord Roskill gave an example. If someone who has mastery or control over a litigation puts up as a person to run the litigation as the nominal plaintiff someone without funds, the court certainly has power —I could find some instances where it was exercised —to impose an order against the person referred to as the dominus litus in the litigation for the costs incurred in it by the unsuccessful defendant. I am not suggesting that this is more than a limitation of the generality which has previously existed in order that there should be no question of these restrictions being brought into account.

I certainly do not believe that it is necessary or wise to limit to financial support the support of the bringing of proceedings but the court would be very slow to make an order against someone who did not support the proceedings financially unless there was a good reason for doing so. This provision is a good deal narrower than the present legislation. The purpose is to lay these considerations before the court. It is of particular importance in the county court, because this will be the basis of the cost regime, where at the moment these matters are regulated primarily by rules of court.

Lord Mishcon

I say with deep respect that the noble and learned Lord might have been wiser merely to give the same wide discretion to the county court judges to make orders as to costs without limiting in this rather misleading way their powers in regard to orders against certain parties. We should have enough faith in the county court judges to give them an absolute discretion without telling them that they may only award costs against various people.

In regard to my amendment, the noble and learned Lord has given no example of what he would regard as support other than financial. Does the fact of someone saying, "I am glad that you have brought these proceedings. I shall turn up in court and back you and support you all I can", give a hint to the judge that he might make an award of costs against that person if it came out in evidence?

The noble and learned Lord, Lord Wilberforce, asked about the defendant. In looking at the provision in subsection (4) I took it for granted —I thought I understood the reason for it —that the only person against whom the court could make an award of costs in regard to support was someone who supported the bringing of proceedings or the continuance of them, which must mean the plaintiff. Anyone who said, "I am going to help you to defend this action because it is meritorious that you should defend it. It is an outrage that the plaintiff brought it against you", would not be subject to the court's discretion in regard to an order.

I have made it sufficiently clear that I think it would be wiser not to have his provision and to leave the matter to the court's discretion. However, if we are to include a provision, my amendment is necessary in order to limit it to financial support. I repeat that the noble and learned Lord, who most courteously answered this argument, has not given one example of what support would be covered by the words "whether or not financially". I do not know whether he cares to do so now.

The Lord Chancellor

There are a number of possibilities. One example is somebody who is prepared to give evidence in support of a case where that person is not acting in bona fide. I am not suggesting for a minute that the court would do more than have power to consider these matters. I do not see why the only support that should be considered is financial support. Sometimes bodies support a test case without actually giving financial support. It might be that the way the case was conducted and the nature of the costs incurred were affected by that support.

All I have sought to do is to analyse the cases and try to offer guidance of the kind that I mentioned, which is restricting the power to the cases cited in this situation. If the noble Lord thinks that it would be better to leave matters as they are, the result would be to leave a completely open discretion. I can certainly see that. I thought that we were being helpful in laying down in as much detail as we could the types of case in which the court might consider making an order without unduly restricting its discretion. The court's discretion is the ultimate buttress of justice in this matter. None of the examples that have been given appears to me to throw doubt on our proposed provisions.

Lord Ackner

On the face of it there is a completely open discretion, but decisions have shown the principles upon which that discretion should be exercised. Therefore to widen the apparent discretion by references as vague as this can only lead to confusion, and confusion when one is trying to simplify matters in courts that are to receive a large impact of extra work cannot be an advantage.

Lord Hailsham of Saint Marylebone

I should like to associate myself with the remarks of the noble and learned Lord, Lord Ackner. The rules relating to costs are fairly well understood by the profession and by the judiciary. To alter them in this way in a part of the Bill primarily concerned with transfers between the High Court and the county court is an imprudence and might lead to a good deal of confusion. Does my noble and learned friend consider it wise to include this clause in the Bill?

The Lord Chancellor

I am perfectly content to consider whether we should have subsection (4), which attempts a classification in the light of Aiden and subsequent cases. If my noble and learned friends believe that it imports confusion instead of help, that is the last thing I want to do. I am perfectly content to consider whether subsection (4) should be included. I would not be content to leave it in and leave out "whether or not financially".

Lord Mishcon

I am glad that we have had this debate. It has been extremely useful, as have the remarks of the noble and learned Lords, Lord Ackner and Lord Hailsham. I said that it might be sensible to leave discretion where it is, governed by the case law, to which the noble and learned Lord, Lord Ackner, referred. I was merely drawing attention to what appeared to be a dangerous provision. I observed that the only example given by the noble and learned Lord the Lord Chancellor was to my mind a highly dangerous one—where someone gives evidence which seems to support the plaintiff's case and which is given in bad faith, query the order for costs. This is a provision which talks about supporting the bringing of the proceedings, not supporting the proceedings at trial, whether or not financially. It appears that the whole of subsection (4) ought to be looked at again. The noble and learned Lord was gracious enough to say that he would reconsider the provision in the light of today's debate. In those circumstances, but with some pleasure that I brought the matter forward, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 38 not moved.]

5.30 p.m.

Lord Mishcon moved Amendment No. 39:

Page 6, line 44, at end insert: ("(4A) No trade union or trade or professional associations shall be liable to have an award of costs made against it by reason of having supported the bringing of proceedings —

1. (i) by a member for damages for personal injury or for breach of that member's contract of employment; or
2. (ii) by their dependents or personal representatives of a member for damages in respect of that member's death.").

The noble Lord said: I can deal with this amendment briefly. If subsection (4) is removed, there will be no need for the provision now put forward. On the other hand, if the subsection is not removed, it will be necessary to make clear that no trade union or trade or professional association should be liable to have an award of costs made against it on the basis of financial aid or otherwise.

The cases mentioned in subsections (1) and (2) are, if I may say so, the minimum requirement at this stage. It may well be that trade unions and trade associations would in the future be concerned in other proceedings which ought to fall within the provisions of this amendment.

I put this amendment forward as a precautionary, if not probing, amendment. However, in the light of the fact that the noble and learned Lord is minded to consider the whole question of subsection (4), I promise noble Lords not to extend the debate beyond making these remarks. I beg to move.

Lord Boyd-Carpenter

I hope that my noble and learned friend will not favourably consider this amendment. It proposes to give a separate and special immunity against an order for costs to two classes of people only; namely, trade unions and professional associations. It suggests that in cases where other people might be mulcted in costs, if the organisation concerned happens to be a trade union or a professional association then such a body would be immune. That seems wholly indefensible. I hope therefore that Members of the Committee will not accept the amendment.

The Lord Chancellor

I have already said that I shall reconsider the question of subsection (4). I understood the noble Lord to say that if the subsection were to be removed he would not wish this amendment to go forward. In the circumstances, perhaps he will feel able to withdraw his amendment today so as to enable me further to consider the position.

I should say that I certainly would not contemplate this amendment on its own, for the reasons given by my noble friend. It would not be appropriate. However, I can see that it may become dependent upon the existence of subsection (4) in that they are linked in this way.

Lord Mishcon

I intend to take the course which I previously indicated and which the noble and learned Lord correctly repeated. I say in answer to the noble Lord, Lord Boyd-Carpenter, that I was careful in the amendment to limit the immunity of trade unions or professional associations to cases which I should have thought would have met even with his approval; that is, where a trade union or professional association helps a member in respect of proceedings for personal injury, or for breach of contract of employment, and also where it assists dependents with a claim in regard to a member's death. I should have thought that with those limitations I would have received the support of the noble Lord's heart. However, I presume that his mind has overruled his heart on this occasion.

Lord Boyd-Carpenter

I thank the noble Lord for the gracious way he responded to my remarks. He has, with his usual skill, deliberately avoided the point. The point is that if any body other than a professional association or a trade union, in good heart, supports such pathetic cases to which he referred, it would still be at risk as regards costs. He proposes a very special immunity. Frankly, given the relationship between the trade union movement and the Labour Party, one fully understands why.

Lord Mishcon

It is not a relationship which covers all professional associations, although I wish that every one of them would support my party.

Having said that, if subsection (4) stands because the wisdom of the noble and learned Lord tells him that it should do so, some such amendment ought to go forward. Of course, I would have no objection to other proper bodies being added to the two bodies mentioned in the amendment. However, in the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Prys-Davies moved Amendment No. 40: Page 6, line 44, at end insert: ("( ) No award of costs may be made against any person without that person being given an opportunity to show cause why the award should not be made.").

The noble Lord said: We have seen that under subsection (4), as it stands, it will be possible for the court to make an award of costs against a person who is not a party to the proceedings; and, indeed, against a person who has probably not been served with notice of the proceedings. We have also noticed that the jurisdiction under subsection (4) is very wide. We believe that it may be too wide. If subsection (4) is to remain, it is our submission that it would be unjust to make an award of costs against a person without giving him a reasonable opportunity of showing cause as to why the award should not be made against him.

If the jurisdiction under subsection (4) is to stand, we feel sure that there will be borderline cases. There will be circumstances where it will be open to argument whether a person who is not a party should be ordered to pay the costs. If the amendment was accepted by the Committee, it would at least ensure that the whole picture is presented to the court before it decides to exercise its jurisdiction. However, if subsection (4) was abandoned, the need for this amendment would not arise. I beg to move.

Lord Campbell of Alloway

Leaving aside the question of whether subsection (4) is to stand, surely an order for costs is never made without giving the person affected an opportunity to make representations. Irrespective of what happens to subsection (4)—and, it may be a failure on my part to understand —I do not see the force or the sense of, nor the need for, this amendment.

Lord Meston

I support the amendment. As the noble Lord, Lord Campbell of Alloway, said, it ought to be inconceivable that an order for costs should be made without the party concerned having the opportunity of being heard. As I understand it, the provision suggested by this amendment is not only fair. It is also entirely consistent with the existing provision which is applicable when one applies for costs against the Legal Aid fund for a successful unassisted party.

Lord Donaldson of Lymington

I oppose the amendment for the very reason given by the noble Lord. It is wholly inconceivable that a court would act contrary to the proposed amendment. I find it slightly irksome for Parliament to be able to tell judges that they really must act in accordance with the principles of natural justice.

The Lord Chancellor

It seems to me, with the greatest respect, that that is a complete answer as to whether subsection (4) should stand. As I explained earlier, the present law gives power to award costs against persons who are not party to the case. However, as my noble and learned friend, my noble friend Lord Campbell of Alloway and the noble Lord, Lord Meston, said, no court would think of making an order against a person unless it was a special kind of order, like an Anton Piller order, without giving that person the opportunity to be heard.

Lord Prys-Davies

The amendment would place the matter beyond dispute. The noble and learned Lord the Lord Chancellor has referred to the Anton Piller procedure. That is an example of where an order can be made without the party having an opportunity to make representations. I shall not press the amendment, but we reserve the right to come back to it if Clause 4 remains part of the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees

In calling Amendment No. 41, perhaps I may say that the noble Lord, Lord Renton, may find it convenient to deal also with Amendments Nos. 42 and 43. Amendment No. 41 pre-empts Amendment No. 42.

Lord Renton had given notice of his intention to move Amendment No. 41: Page 7, leave out lines 3 to 13.

The noble Lord said: To save time and make progress I do not intend to move Amendment No. 41. Amendments Nos. 42 and 43 go with it. I can write to my noble and learned friend the Lord Chancellor on that point.

[Amendment No. 41 not moved.]

[Amendments Nos. 42 and 43 not moved.]

The Lord Chancellor moved Amendment No. 44:

Page 7, line 21, at end insert — ("(8A) The Lord Chancellor may by order amend subsection (8)(a) by substituting, for the percentage for the time being mentioned there, a different percentage. (8B) Any such order shall be made by statutory instrument and may make such transitional or incidental provision as the Lord Chancellor considers expedient.").

The noble and learned Lord said: The amendment allows the Lord Chancellor to amend by order the maximum amount by which costs may be reduced as a penalty for commencing in the High Court a case which should have been commenced in a county court.

The costs sanction has existed for a long time and is presently set out in Sections 19 and 20 of the County Courts Act 1984. That provision has been moved to its new place in Section 51 of the Supreme Court Act 1981 both because it assists consolidation of all the relevant enactments concerning costs and because the sanction applies to cases which have wrongly been brought in the High Court and is therefore more appropriately found in legislation about the Supreme Court than about the county courts. The power to alter the percentage is appropriate in the light of the type of power that is given to the costs sanction at present. I beg to move.

On Question, amendment agreed to.

Lord Prys-Davies moved Amendment No. 45: Page 7, line 25, at end insert — ("(10) Unless the legal representative has acted on behalf of a party without authority, an award of costs may only be made against a legal representative if the court is satisfied that there has been a serious dereliction of duty to the court by the legal representative.").

The noble Lord said: There must of course be circumstances where it is appropriate for the court to order the personal payment of costs by a legal representative. As I understand it, the only power of the court to award costs against a legal representative arises from the court's inherent jurisdiction over solicitors. I believe —I am subject to correction —that it can be said that that jurisdiction is exercised where the solicitor has been guilty of a serious dereliction of duty to the court or where he has acted without authority.

The amendment merely gives recognition to that principle or practice. If I have misunderstood the principle, I am sure that I shall be corrected. The purpose of the amendment is to ensure that the criteria which now apply will continue to apply after the Bill comes into force. The jurisdiction would of course be extended to apply to all legal representatives. I beg to move.

Lord Campbell of Alloway

I oppose the amendment. What is the purpose of it? It does little other than codify existing practice. Why on earth should it be supposed that the existing practice, which has continued for years and years, should in any way be changed by the passing of the Bill? It is a fetter on judicial discretion. As the noble and learned Lord the Master of the Rolls has said, surely one can leave the judges to exercise their own discretion, unfettered by Parliament.

Lord Prys-Davies

I said that in addition to reflecting the present position the amendment would extend the jurisdiction so that it applies to all other legal representatives and not merely to solicitors.

Lord Ackner

The best point of my noble friend Lord Prys-Davies, which he may have overlooked, is that when we look at Schedule 7 —all 20 pages of it —and see the extraordinary melange of people who in future may well be judges, it is perhaps desirable to spell out everything.

Lord Hailsham of Saint Marylebone

I agree with what the noble and learned Lord, Lord Ackner, has said, up to a point. However, if the Bill's full intentions are carried out, the expression "legal representative" will not be confined to members of the legal profession. A certain amount of redrafting will be necessary if that is intended.

Lord Havers

I have knowledge of a case in which a member of the Bar, who had improperly pleaded something he should not have done, was made to pay the costs.

5.45 p.m.

The Lord Chancellor

First, "legal representative" is defined in the clause as follows: in relation to a party to the proceedings [it] means any person exercising a right of audience or right to conduct litigation on his behalf". I should have thought that the correct rule would be to leave the matter to the court's discretion. I have no doubt that we shall have an opportunity to consider the point made by my noble and learned friend Lord Ackner in more detail at a more appropriate stage.

The amendment is unnecessary because one cannot be sure that one knows about all possible cases. This matter would be better left to the court's discretion.

Lord Prys-Davies

I am grateful for the support which the amendment has drawn, perhaps on grounds which I did not advance. I am not convinced that the amendment should be withdrawn; nevertheless, I shall withdraw it. We shall read carefully what has been said and consider whether the amendment should be brought back in a more perfected form so that the present principles will apply to all legal representatives. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 4, as amended, shall stand part of the Bill?

Lord Mishcon

Perhaps I may raise with the noble and learned Lord one question which puzzles me. It may be as a result of my ignorance, although I have looked at the Notes on Clauses and cannot find a solution to my problem. The point lies in subsection 8: Where, in complying with subsection (7), the responsible person reduces the amount which would otherwise be awarded to the person in question" — I am not on the English language point on those lines— the amount of that reduction shall not exceed 25 per cent.". Why 25 per cent.? Why a limit in an enactment of Parliament to that percentage which curtails the court's discretion? Who hit upon the figure of 25 per cent.? Is it drawn from some rule or provision which I have been unable to trace?

The Lord Chancellor

It is always difficult to get everything right. I thought that it was wise to limit the power in case people thought that it could be exercised in too draconian a manner. It seemed to me that a maximum of 25 per cent. was a reasonable figure to take.

Lord Wilberforce

With respect, whatever difficulties remain have been taken care of by Amendment No. 44 which gives the noble and learned Lord power to alter the figure. One has to start with something and give him power to alter it upwards or downwards. It is not left in an unsatisfactory position by a combination of those two subsections.

Lord Simon of Glaisdale

I too was puzzled by the point which the noble Lord, Lord Mishcon, raised. I should have thought that the figure ought to bear some relation to the comparative county court costs and the High Court costs. I assumed that 25 per cent. was such a comparative cost but apparently not. It is a figure which my noble and learned friend has snatched out of the air. It may be all the better for that, but it is difficult to justify, particularly in view of the point which my noble and learned friend Lord Wilberforce made that we now vouchsafe to my noble and learned friend perfect power to do what he likes with the figure.

Lord Mishcon

I should have thought that rather than putting a figure of this percentage in the clause and having to rely upon a statutory instrument —which not only takes the time of Parliament, if Parliament cares to discuss it, but incurs some other costs of a not minimal size —it would have been much more sensible to have left it again to the discretion of the court. I see no point in the minimum. However, having made the point during discussion on clause stand part, I ask the noble and learned Lord to be kind enough at least to consider it.

The Lord Chancellor

I shall certainly consider it. I indicated that we thought this was a good figure. I had regard to the present level of cost between the High Court and the county courts but it is impossible to justify such a figure in great detail. It seemed to me to be a reasonable figure. However, I shall consider whether the matter needs to be put in this way. So far as possible it mirrors the present situation in a slightly different way. We need something along the lines of subsection (8B) in order that that aspect should be considered. However, I am very happy to look at it again.

Clause 4, as amended, agreed to.

Clause 5 [Exchange of witness statements]:

The Lord Chancellor moved Amendments Nos. 46 to 50:

Page 7, line 28, leave out ("enabling the court to direct") and insert ("requiring, in specified circumstances,").

Page 7, line 31, after ("trial;") insert — ("(aa) enabling the court to direct any party to civil proceedings to serve such a statement on the other party;").

Page 7, line 32 after second ("a") insert ("requirement or").

Page 7, line 33, leave out ("the direction") and insert ("it").

Page 7, line 35, after second ("a") insert ("requirement or").

The noble and learned Lord said: If it is convenient to Members of the Committee, I should like to move Amendments Nos. 46 to 50 together. Clause 5 contains the power for rules of court to enable the courts to direct exchange of witness statements between the parties. This amendment would add a power for the rules themselves to require such exchange without an order of the court. In other words, it might be possible to do it generally, either for all cases or for classes of cases without an order. Ways are increasingly being sought of reducing the need for interlocutory hearings in cases where standard directions and orders can be made by rules of court setting out what is to happen in certain circumstances.

Since exchange of witness statements may become a standard order in many kinds of cases, it would be undesirable if it could only be ordered by the court and not standardised in rules. I beg to move these five amendments en bloc.

On Question, amendments agreed to.

On Question, Whether Clause 5, as amended, shall stand part of the Bill?

Lord Mishcon

I apologise for popping up again on clause stand part, but it strikes me that there is something a little misleading in the marginal note. The noble and learned Lord used the expression "exchange of witness statements". The clause provides that the court may direct any party to civil proceedings to serve on the other parties a written statement. One can well see that in certain circumstances the court may only order one party to do this. The marginal note again refers to "Exchange of witness statements" as though the order could only be made by way of exchange. In other words both parties have to receive the order. I wonder whether the noble and learned Lord would care to comment in order to clarify the matter and make sure that the marginal note of "Exchange of witness statements" is not inaccurate.

The Lord Chancellor

The idea is generally to give equal treatment to both sides. The way in which the rule is expressed is to order one party to serve witness statements on another. There might be cases in which it was only appropriate to do it in respect of one side, perhaps at a particular time. The side note is a matter to be determined in the light of the final content of the clause. I shall certainly keep in mind the point the noble Lord has made.

Lord Simon of Glaisdale

In the interests of legislative economy, I wish to draw attention to subsection (3) which says: This section is not to be read as prejudicing in any way any other power to make rules of court". I venture to ask why that is necessary. How can that section possibly prejudice any other power? If it cannot, it seems to me one of those little stock phrases that have been imprisoned in the computers of parliamentary counsel which scream to get out and succeed in doing so during the course of the Bill. I might have made the same point on the previous clause but this is really an extraordinary example.

The Lord Chancellor

If we can omit that subsection without harm, I shall be happy to do so. Perhaps my noble and learned friend will allow me to take advice on the point.

Lord Simon of Glaisdale

I am much obliged. I am perfectly content with that.

Clause 5, as amended, agreed to.

Clause 6 agreed to.

6 p.m.

Clause 7 [Restrictions on appeals to Court of Appeal]:

On Question, Whether Clause 7 shall stand part of the Bill?

Lord Meston

I oppose the suggestion that Clause 7 should stand part of the Bill. I do not apologise for doing so because this is regarded, not just by me, as a matter of great importance.

As I understand it, Clause 7 was not foreshadowed in the Civil Justice Review. It seeks to amend Section 18 of the Supreme Court Act 1981 and it is necessary for me to explain to Members of the Committee what Section 18 deals with. It sets out a list of important restrictions on the right of appeal to the Court of Appeal. In some categories of case there is an absolute bar on appeal; in some categories there is a right of appeal only with the leave of the court.

The first important point to note is that all those categories are spelt out in the 1981 Act; that is to say, in primary legislation. They have existed for a long time. The only alteration in recent years has been the added category of case in which it was said that there should be an unrestricted right of appeal. That is where access to a minor is entirely refused. Having pointed out that factor, it is not difficult to guess what my first broad objection to Clause 7 is. It removes certain categories of case from primary legislation and leaves them to the mercy of a rule-making body. I suggest to the Committee that rights of appeal, particularly in sensitive and significant areas, are simply too important to be taken away from primary legislation.

My second broad objection is that what would go by virtue of Clause 7 is the clear statement in Section 18(1)(h) of the 1981 Act that there is an unrestricted right of appeal in cases involving the liberty of the subject, custody of children, refusal of all access to children and injunctions. We have no idea what is to happen to those existing categories under the proposed rules. As I have already indicated, my concern is to preserve an unrestricted right of appeal in matters of such importance.

I am tempted to rest the argument there without attempting to guess the reasons for Clause 7 and without attempting to anticipate the arguments in support of it, or indeed without seeking to anticipate what may or may not appear in the rules which I assume are as yet unwritten, let alone in any future revisions of those rules. One can only presume that the rules, when they appear, will not preserve the status quo. If they did so there would be no need for Clause 7. One can only suspect that rules will be introduced to impose some filter on what may be regarded as hopeless appeals to improve further the efficiency of the Court of Appeal.

Efficiency is of course important, but I suggest that the Court of Appeal certainly has become in recent years highly efficient. One simply must not lose sight of the fundamentals. I suggest that it is a fundamental principle that there should be an unrestricted right of appeal; for example, if one's child is removed, if one is denied all access to one's child, if one is locked up or if one's assets are frozen.

I have two further subsidiary points to make. In child custody cases particularly what makes an appeal or a proposed appeal hopeless is a judicial decision of this House, reported in 1985, called G. v. G. Under that decision this House held that the Court of Appeal should only intervene in a child custody case if it is satisfied that the judge at first instance was plainly wrong. The Committee will understand that that makes it difficult to get an appeal off the ground. Responsible counsel —certainly counsel advising for the purposes of legal aid for appeals—recognise that difficulty and, generally speaking, are reluctant, or should be reluctant, to advise an appeal. I suggest that that in itself is or should be an effective filter.

Whether or not that ruling is supportable is a wider and different question. However, I should mention the powerful letter printed in The Times on 31st August 1989. The letter was written by Sir John Latey, perhaps one of the wisest of our Family Division judges. He wrote in his letter: There is a grey area in these cases where, though one cannot go so far as to say that the court below was plainly wrong, one is left with clear uneasiness that it may well have gone wrong. In such cases should not the appellate court have power to direct a rehearing? I accept that that is a suggestion made about the law as it should be and not as it presently is. Nevertheless, that is something we should consider.

Finally, it may be possible to live with the requirements of Clause 7 if it were clear from the rule-making provision that the proposed appellant would have the opportunity at least to seek leave from the Court of Appeal. As Clause 7 stands, the rules may prescribe that, an appeal shall lie to the Court of Appeal only with the leave of such court or tribunal as may be specified". In other words, it seems that it may be possible for the rules to state that if the court at first instance refuses leave to appeal in such a sensitive case that is the end of it and the proposed appellant does not have the benefit of at least one trip to the Court of Appeal to seek leave. I return to my basic proposition, which is that matters which are now left uncertain by Clause 7 are too basic and too sensitive to be left out of primary legislation.

Lord Campbell of Alloway

I support the spirit of what has been said by the noble Lord. The words, as may be specified by the rules in relation to that case", are a form of drafting which opens the door to potentially extremely worrying consequences. If one could be assured that this wording could be altered to ensure that in any event the Court of Appeal could always give leave, and that were assuredly stated, the main point of my objections would be met. Time is short and there are other objections to the provision, but that is the main one. I wonder whether my noble and learned friend the Lord Chancellor could possibly take that on board.

The Lord Chancellor

I was not proposing to enter into a full account of my position at the present moment. However, in view of the point that has been raised I wish to say, first of all, that what is proposed here is that these powers should be dealt with by the rule-making body for the Supreme Court. I believe that the rule-making body for the Supreme Court has in it those who would want to ensure that the concerns of the noble Lord, Lord Meston, and of my noble friend Lord Campbell of Alloway are met. However, I accept that it would be an improvement to make it clear that such a concession would be granted only with the leave of the Court of Appeal and, such court or tribunal as may be specified by the rules". In other words, I certainly intend that it will always be possible to ask the Court of Appeal for leave.

The only other point I wish to mention at this stage is that the idea is not to go across the board without careful consideration. The purpose of the provision is to enable us to give separate consideration to different classes of cases and not to go across the board immediately, but rather to leave this matter to be considered carefully in relation to each class of case. As I said, I thought the fact that the rule-making body was the rule-making body for the Supreme Court would be an important safeguard in that connection. I think this process will take some time. I do not envisage it happening very quickly, and it is something we shall have to consider carefully. However, this seemed an opportunity to make the necessary provision in primary legislation.

Lord Lane

I wish to support what the noble Lord, Lord Meston, said. This is a sensitive area and at this time it is particularly sensitive because there is to be devolved to the county court —this is now happening —a large volume of work. With the best will in the world, the county court does not operate with the same facilities as the High Court. The transcripts of judgments and the notes of the judges are probably not as well or efficiently done as they are in the High Court. That will inevitably result in a greater volume of appeals.

Perhaps I may suggest that the proposal in Clause 7 merits very careful consideration indeed. It merits consideration as to whether the law should not be left as it is, at least for the moment, until we see where we are going, with the enormous difficulties that everyone knows are arising and will arise in the county court.

6.15 p.m.

Lord Ackner

My noble and learned friend the Lord Chancellor in his opening speech on Second Reading, at col. 122 of Hansard of 19th December 1989, said: Our keynote is to improve access to justice for all who need it The clause seems to me contrary to the spirit he was urging. It is an attempt to remove from the potential litigant a right which is an absolute right in cases relative to the liberty of the subject, custody, access and certain injunctions, particularly the Mareva injunction to which reference has been made, under which a person's property can be totally frozen pending trial, or the Anton Piller order which is a most robust order enabling a person to obtain permission to enter and search another's property.

It may well be said that all we are trying to do is to keep out those cases which waste the court's time because they have no prospect of success. Some very wise words were spoken by Mr. Justice Megarry, as he then was, later to become the Vice Chancellor, in the case in 1965 of John v. Rees. He said: As anyone who has anything to do with the law well knows, the path of the Law is strewn with examples of open and shut cases which somehow were not, of unanswerable charges which in the event were completely answered, of inexplicable conduct which was fully explained, of fixed and unalterable determinations that by discussions suffered change". This Chamber, I know, and for certain reasons knew before I was elevated to it, is very jealous about legislation seeking to remove access to the courts. The noble Lord, Lord Mishcon, my noble and learned friend Lord Hailsham, the noble Lord, Lord Campbell, and certainly the noble Lords, Lord Hutchinson and Lord Hooson, may remember some five years ago a debate about Clause 43 of the Administration of Justice Bill. What was proposed there was by primary legislation and not this somewhat back door procedure.

The Committee may know that in judicial review the applicant must first apply to a judge or judges of the divisional court for leave. If he fails to obtain it he is not entitled to appeal but —and this is almost the same —is entitled as of right to apply to the Court of Appeal. At that time the Court of Appeal was —and still is, although it has had a substantial addition of new judges —under great pressure. In order to reduce that pressure the suggestion was made, without proper consultation of the judiciary (for which my noble and learned friend Lord Hailsham was not to blame) that the right to apply should be removed.

When the matter came up at Committee stage my noble and learned friend Lord Hailsham conceded that there had not been proper consideration by the judges. He said that he would withdraw the proposal and come back at Third Reading with an alteration. That alteration left the right to apply but under modified circumstances requiring the leave first of the divisional court and then of the Court of Appeal. It was put forward as a modest amendment giving the applicant something that was almost as good as what he already had. I think that my noble and learned friend Lord Hailsham said that it was better because there were more stages.

The justification for all of that effort was that the present applications occupied a month of the time of the Court of Appeal consisting of three judges. Before the debate on the Report stage my noble friend Lord Hutchinson of Lullington had gone to the trouble to inquire of the Bar how long it took. He informed the House that so far from it being a month of judicial time it was at the most eight hours. I am happy to say that this Chamber refused to accept the amendment thereby underlining how important it was that the House should consider any attempt to remove access to the Court of Appeal.

I know that it will be said, "Ah, but the Court of Appeal is merely being given the right to consider whether it should grant leave". I am not happy about that situation at all, for this reason. When the suggestion arose in Clause 43 the Master of the Rolls was under great pressure with backlogs of lists. That pressure could have been eased by Clause 43, or it could have been eased, at it was, by the supply of more judges. However, the supply of more judges cost more money. One can always anticipate resistance from the Treasury when more facilities are required.

The Committee will remember our debate last Tuesday with regard to Clause 1. Although my noble and learned friend the Lord Chancellor was anxious that Part I be passed in order to reduce cost and delay by transfer into the county court it was pointed out by many, and by my noble and learned friend Lord Hailsham in particular, that if that transfer occurred now there would be a fearful shambles in the court and that it was a question which could only be dealt with in years, not months.

Since that debate I have received a letter from a very experienced and much respected QC who appears frequently before your Lordships' appellate committee. Like most senior barristers, at considerable cost to his practice, he gives up time to sit as a recorder. His letter is pertinent to the amendment. He says: I have just completed two weeks of sitting in the Inner London Crown Court as Recorder. Before I did so, I tried to sit for a further couple of weeks in February or March. However, the circuit administrator"— the civil servant— informed my clerk that there were no available sittings during those two months. I therefore enquired when I came to Inner London as to why it was so difficult to be able to sit. I discovered that two courts are being closed throughout February and March solely because the Lord Chancellor's department has required three trained court clerks from Inner London to be deployed to the County Courts. This is because they cannot recruit staff for the County Courts at present abysmal rates of pay and are therefore desperately having to redeploy staff from the Crown Court. This will leave only eight trained court clerks to service 15 courts, 13 during February and March. During the five years in which I have been sitting in Inner London I have witnessed the obvious decline in the availability of trained court staff and the consequences for the public including the defendant. The effect of this latest move will undoubtedly be to deprive defendants of their liberty for longer periods than is necessary". That quite indefensible robbery of Peter to pay Paul is relevant in regard to the proposal because if, despite his undoubted powers of persuasion, my noble and learned friend the Lord Chancellor is still unable to ensure that proper facilities are provided to service the courts, the Court of Appeal suffers more and more delays as a result. These rules exist and when my noble and learned friend the Master of the Rolls says, "I must have more judges, more courts and more staff", the answer will be, "You must exercise your discretion and refuse, as you are entitled to do, more appeals to your court".

Some judges take the view —I do not share it —that matrimonial matters are barely justiciable. Other judges take the view that, without hearing anyone, they can discern immediately what the inevitable outcome of the case will be. Under the pressure that would exist in those circumstances it is easy to see how the public's right of access to justice, which my noble and learned friend is so anxious to improve under the Bill, might have the reverse effect. That is why I support the proposal to remove the entire clause.

Lord Mishcon

Perhaps I may say, first, how delighted I am to be able to agree with the noble and learned Lord, Lord Ackner, and how much I appreciate the comparatively moderate tones in which he spoke. I am sure that that moderation will apply whichever part of the Bill we discuss.

I wish to leave the perfectly proper Treasury point raised by the noble and learned Lord. I wish to emphasise that my support for the amendment is based upon the public view —a very proper view —of their rights to go to our courts, to obtain a decision and, where appropriate and on advice, to be able to appeal against a decision which they regard as wrong.

Perhaps I may go off at a tangent. although the point is relevant, to tell the Committee how difficult it is for members of the profession to explain to the lay client our rules in regard to rights of appeal. Some noble Lords may not know that when a court of first instance, with all the learning of a High Court judge, makes a decision that goes to the Court of Appeal which then reverses the decision, the leave of the Court of Appeal or the House of Lords must be obtained before the citizen may have his appeal heard, the appeal being that the judge of first instance was right and the Court of Appeal was wrong.

It is difficult enough for the layman to have explained to him that he must obtain the leave of the Court of Appeal or the House of Lords when a judge of first instance found in his favour. It is impossible to explain to the layman that the House of Lords has on occasion —quite a few occasions —refused leave to appeal to the litigant who was successful before one of the High Court judges who delivered his judgment in accordance with the law as he saw it. There have been such cases. It is difficult enough to explain that to the layman, but, even after the explanation, he is left with a sense of righteous wrong.

We are dealing here with a highly dangerous proposal which seeks to limit, by the rules of the Supreme Court or by statutory instrument, people's right to go to the Court of Appeal. Cases regarding the liberty of the subject and immigration cases may be involved. As noble Lords have heard, custody of children may be involved. Possibly the most precious and sensitive cases involve individuals' rights to be with their own children. As a result of possible arguments about pressure on the Court of Appeal, those cases may require leave to appeal where no such leave is now required.

The case for that being done by primary legislation alone, with the due consideration of Parliament, is unanswerable if we consider the phrase so often used in regard to the Bill —the true interests of justice. We must also consider, as was so often mentioned on Second Reading and on the first day of Committee proceedings, the fact that the public must be assured of their right to enter our courts of justice when they feel that their civil rights have been wronged.

The doors of the Court of Appeal should also be open unless, after due consideration, Parliament otherwise dictates. There are safeguards. In legal aid cases a legal aid certificate will not be granted unless the legal aid committee considers that there is an arguable and proper case to go to the Court of Appeal. In cases which are not legally aided, the practitioner will always point out the sanction of an order being made for costs against the person whose appeal was in any way reckless. It would be ordered automatically if the appellant were unsuccessful.

We should not pass the clause; indeed, we dare not pass the clause.

Lord Campbell of Alloway

In view of what has been said by noble Lords, perhaps I may respectfully ask my noble and learned friend the Lord Chancellor whether, in order to avoid a Division, he will consider taking the clause back for consideration, given that there is general concern throughout the Chamber.

6.30 p.m.

Lord Donaldson of Lymington

I sincerely hope that my noble and learned friend the Lord Chancellor will do no such thing. If this is a convenient moment, I hope that I may express my views.

It was for the first time in October 1984, when I gave the second annual report on the work of the Civil Division of the Court of Appeal, that I raised the question of whether there should be some further and perhaps better restrictions on the rights of appeal to the Court of Appeal. Since then in, I think, every annual report and certainly most of them I have pleaded for that restriction. I was considerably surprised to see the amendment in the name of the noble and learned Lord, Lord Ackner, and even more surprised to be told for the first time yesterday that my noble and learned friend the Lord Chief Justice was opposed to the proposal. I had thought that it was widely supported among those concerned with the work.

I appreciated before the debate, and appreciate still more tonight, that the reasons we want the restrictions are widely misunderstood. We do not seek them for the convenience of the judges, nor for the administrative convenience of the court or the court staff. The primary reason we seek them is to prevent the tear-jerking hardship —it is frightening to see it —suffered by litigants who, no doubt despite the advice that they are given by their lawyers, persist in arguing cases which are wholly and completely unarguable. They beggar themselves and their families in the belief that no stone must be left unturned and no share, property or savings unrealised in order to redress what they consider to be an injustice but which is in fact a completely unappealable case.

It is said that the decision on who should be allowed an unfettered right and who should be allowed a fettered right of appeal —because no one is suggesting that these people should be denied a right of appeal —or the choice between unfettered and fettered rights should be enshrined in primary legislation. As I shall tell the Committee very briefly in a minute, this is an extremely complex subject and unsuited to primary legislation. However, the point that I wish to make is that at the moment it is not contained in primary legislation. At the moment the position is that by far and away the largest number of appeals for which leave to appeal is required comes within the category which depends entirely on a unilateral decision by the Lord Chancellor for the time being. He is empowered under Section 77 of the County Courts Act 1984 to prescribe those categories of case in which leave to appeal is required either from the trial judge or from the Court of Appeal.

I think that it was my noble and learned friend Lord Hailsham who did it but it may be that the present noble and learned Lord the Lord Chancellor has added to it. The current position is that, if anybody claims more than half the monetary jurisdiction of the county court or, if it is an appeal from a county court judge who himself has heard an appeal from a registrar, leave to appeal is required. There are plenty of wily litigants who, knowing that they have a claim which is worth a good deal less than half the value of the county court jurisdiction, up their claim, thereby knowing that they will have an unfettered right to go to the Court of Appeal regardless of the merits.

The next source again depends on subordinate legislation because, although my noble and learned friend Lord Ackner no doubt was thinking of the fact that Section 18 refers to rights of appeal in relation to interlocutory decisions, he did not tell the Committee how one can detect an interlocutory decision, and that itself is subject to subordinate legislation. That has proved so difficult that the Rules Committee has now produced a general rule, which is subject to no fewer than 40 exceptions, that can be found in the annual practice. Subject to the special provisions of paragraph (f) of Section 18(1), it is whether an order is an interlocutory or a final order that governs whether there shall be leave to appeal. In fact it is only in relation to paragraph (f) of that section that primary legislation wholly rules. It provides —and I am delighted to hear that the noble and learned Lord the Lord Chancellor will override it if he has the power —that one can only appeal to the Court of Appeal from a costs order where the costs are in the discretion of the learned judge or from a consent order if the judge concerned agrees.

There is no power in the Court of Appeal to give leave at all. I think that that must have been thought to have been so undesirable that by a decision —which I have great difficulty in explaining but which of course I loyally apply —in the Scherer v. Counting Instruments case we are given the opportunity of ignoring wholly Section 18 and granting a right of appeal if it can be said that the judge failed to act judicially at all. I do not seek to explain it: I merely mention it as one of the complications of life which would go if the Lord Chancellor in the Rules Committee —not by himself; the Lord Chancellor is a member of the Rules Committee —is allowed to provide detailed rules.

Let us not forget that the Rules Committee consists of the Lord Chancellor, the Lord Chief Justice, the Master of the Rolls, the President of the Family Division, the Vice-Chancellor, one or two (I forget which Lords Justices, certainly two other High Court judges, two barristers and two solicitors. If the Executive ever wanted to hijack the courts, I strongly advise it not to try to do it through the Rules Committee.

The objection to the present system is its total complexity in so far as it is in primary legislation —and relatively little of it is —its total inflexibility and sometimes, perhaps I may say, its plain stupidity. That stupidity is included in Section 18. On one occasion I was enraged to find a gentleman knocking at the door of the Court of Appeal saying that he had an extremely urgent appeal on which he had an unfettered right to appeal to the Court of Appeal. It arose because he had gone to the judge in chambers on an emergency application. The respondent was British Telecom or its predecessor. He wanted a telephone fitted that afternoon. British Telecom's answer was that he had four lines already which had been ceased for non-payment of the bill. Not surprisingly the learned judge in chambers threw it out. Within half an hour he was in the Court of Appeal, as I said. In retrospect I am a little ashamed of it but in fact it seemed easier to hear him at once than to throw it out again. However, he should not have been allowed at all to take up the time of the Court of Appeal.

I regret to say that some appeals are truly unarguable. It may be that the decision of this Chamber in a judicial capacity in G v. G is wrong. But in my view we simply have to follow it. In the light of that decision so many discretionary decisions taken by judges in matrimonial cases are simply unappealable. I would defend the decision to this extent: in those terrible situations which arise in the matrimonial field it would be a bold man who could say that there is a right decision. The plain answer is that the judge has to do his best and no one can say that there is another answer which would be better. However, families throw themselves financially and emotionally into these contests and can ruin themselves in so doing.

Some provisions are already subject to a filter but at a lower level. Judicial review is an example. At the risk of boring the Committee and extending the debate (but I happen to know what I am talking about) perhaps I may just mention judicial review. It works as follows. One goes to a High Court judge with an application for leave to be allowed to bring judicial review proceedings. The judge has a look at it and in some cases, particularly if he thinks it urgent, he may grant leave as being a fairly sensible way of bringing the respondent to the court to find out what the case is all about. Having granted leave and gone through the matter very thoroughly he says that the case is totally unarguable. As things are the unsuccessful party then has an unfettered right to go to the Court of Appeal, although there was a filter at an earlier stage which he managed to by-pass but which the same judge, having gone carefully into the matter, in effect says, "Had I known the facts, I would never have granted leave". That is something at which the Rules Committee would want to look.

I am not suggesting that necessarily it should be altered but certainly it should be looked at.

The existing system works well but it applies to only about one quarter of all appeals. That is not a subjective opinion; I can prove it objectively. The success rate where the appeals are subject to leave was 34 per cent. in the past year and 37 per cent. in the year before. The success rate where appeals are not subject to leave in both 1988 and 1989 was 21 per cent. That shows quite clearly that the provision is filtering out some of the more hopeless appeals.

Furthermore, anticipating the assault of my noble and learned friend Lord Ackner, an assault based on Mr. Justice Megarry's remarks about open and shut cases, I mention that in the past two months of November and December, the Court of Appeal has been conducting a pilot experiment which works as follows. We took all the appeals in which leave to appeal was not required and every judge was asked, when he first looked at the papers and before the appeal was argued, to fill in a form which asked: Do you notionally grant leave or do you notionally refuse leave? There were 111 appeals dealt with in that way. In 97 of them leave to appeal was notionally granted. Of course the parties did not know that; they were not involved in any way.

However, just on the papers, in 97 out of the 111 cases leave to appeal was granted. The success rate in those cases was the success rate that one would expect; namely 34 per cent. —almost the same as in the ordinary run of cases where leave is required. Leave was refused in 14 cases. Of course those appeals were duly heard because the refusal was purely notional. One only of those succeeded. I was very bothered that there should be even one that succeeded, so I asked the judges who had been concerned what had happened. It was a matrimonial case in which, after they had reached their notional decision not to grant leave to appeal, the husband had been guilty of a vicious assault on the wife which, if it had occurred earlier, would have made all the difference because they were concerned with the custody of a child. One really cannot tailor a system to cope with the situation where events change after the time when you have to make a decision.

Perhaps I may just mention that it is not only the appellant who is affected by unarguable appeals. So is what one might describe as the victim, the respondent to the appeal. He is the one who, when all is said and done, is being denied the benefit of his judgment; he is being denied any benefit of peace of mind.

In anticipation of this debate and when I heard that my noble and learned friend the Lord Chief Justice was going to oppose it, I called a meeting this morning of all the Lords Justices who were available, and that was most of them. I am authorised by them to say that the proposal put forward by the Government has their support subject to two caveats.

The first caveat is that they would like to be consulted about the particular categories of case which would be subject to leave or not subject to leave under the Rules of the Supreme Court. I do not doubt for one moment that they would be very fully consulted, if not by the Lord Chancellor. After all, I am myself a member of the Rules Committee, and I am perfectly capable of consulting my own colleagues.

The second caveat was that they would like consideration given to amending this Bill to enable two judges to sit together to consider a leave to appeal. It is thought that that would be an improvement. By a quirk of drafting it is not possible under the existing Act. It has to be one judge or three judges under that Act. Some of them think it would be better to have two. I quite see that if there were any doubt about it it might be a comfort to any single Lord Justice who wondered, "Am I really right to put my own judgment on the line to the extent of shutting somebody out?" It might be a comfort to him and a help if he had somebody else to consult.

The final point I should like to make concerns the view of my noble and learned friend Lord Ackner that if the going got tough, if government money was tight and resources were inadequate, my noble and learned friend the Lord Chancellor would be on the telephone to me saying, "Master of the Rolls, will you please tighten up on the number of cases in which the court is giving leave to appeal?" I think I can assure my noble and learned friend Lord Ackner —I doubt whether the Lord Chancellor needs any such assurance —that he would get an extremely dusty answer.

Lord Griffiths

I find this clause entirely satisfactory as it stands in the Bill. I should like to take the opportunity to remind your Lordships of the nature of the body that is responsible for making the Rules of the Supreme Court, because the noble Lord, Lord Meston, referred to leaving the matter to the mercy of some rule-making committee. In fact, those responsible for the Rules of the Supreme Court are the Lord Chancellor, together with any four or more of the following persons: the Lord Chief Justice, the Master of the Rolls, the President of the Family Division, the Vice-Chancellor, three other judges of the Supreme Court, two practising barristers, one of whom has to be nominated by the chairman of the Senate and Inns of Court of the Bar, and two practising solicitors. We have a truly independent legal profession in this country and it is unthinkable that the Lord Chancellor would have any opportunity of choosing either the barristers or the solicitors just to appoint yes-men and make them four of the rule-making committee. Indeed, the vigilance of the Senate of the Bar and of the Law Society would ensure that that could not take place.

I can think of no more informed or wiser body to consider this very delicate decision as to which appeal should be as of right and which should require leave. For my part, I am perfectly content to leave it in their hands. I am confident that you would get a very much more closely informed decision from them than if it were just left to the emotions of a parliamentary debate.

6.45 p.m.

Lord Bridge of Harwich

I entirely agree with what has just fallen from my noble and learned friend Lord Griffiths, subject to the fact that I am not wholly happy with the drafting of the clause.

As I understand it, my noble and learned friend the Lord Chancellor has assured us that the intention of the clause is that, whenever leave is required in relation to a category of cases in virtue of an exercise of this power, the applicant for leave will never be denied the opportunity to pursue his application to the Court of Appeal and to the full court if it is denied to him at any lower stage. Subject to that caveat, I am entirely happy with the clause, and I enthusiastically support it.

To describe a clause which has that effect as giving power by delegated legislation to deny access to justice —cases such as liberty of the subject, family orders, custody of children and the like —is quite misconceived. Take the present position in relation to somebody who is convicted of murder and sentenced to imprisonment for life, or who is convicted and sentenced for any other crime. Such a person, unless he has a point of law, requires the leave of the Court of Appeal in order to appeal. He seeks leave of the single judge. If he does not get it he goes to the full court and argues his case for leave. In a sense, when leave is required in civil cases, not only does the necessity for the applicant for leave to go and argue his case before the Court of Appeal and get leave if he has an arguable case confer an advantage on the respondent, who is not brought to the court at unnecessary cost, but also, if he has any means, it confers a positive advantage on the applicant for leave to be told at an early stage that his case is quite hopeless and unarguable, having had a full opportunity to argue it. He is thereby saved the waste of any further funds in his hopeless endeavour.

Lord Roskill

Perhaps I may support what has fallen from both my noble and learned friends who have just spoken. In view of what has been said about the Rules Committee of the Supreme Court, perhaps I should disclose an interest because for almost all my eight and a half years as a member of the Court of Appeal I was the Court of Appeal member of that committee. No committee on which I have ever sat has been more careful or more scrupulous in ensuring that the powers conferred upon it by statute are exercised so as to secure just results from the exercise of those powers.

The second point I wish to make is that anybody who has sat in the Court of Appeal over a long period knows that for many years there has been an indefensible dichotomy between cases where there is an appeal as of right and those where there is no appeal except by leave. As I am sure my noble and learned friend the Master of the Rolls knows, what is an interlocutory appeal has never been susceptible of accurate definition.

My third point is that which my noble and learned friend the Master of the Rolls made last. During Committee we have heard many emotional appeals about the position of would-be appellants. I wonder how many Members of the Committee have watched the reactions of respondents who have been successful in the court below as they are dragged through an appellate system when to any rational person looking at the matter objectively the case is wholly unarguable. The inevitable disturbance of family life caused by some unhappy dispute over custody or access is protracted rather than simplified and brought to an end.

Finally, the noble Lord, Lord Mishcon, mentioned the difficulties in explaining the reasons why a client of his or of anybody else who has succeeded at first instance but failed in the Court of Appeal is unable to obtain leave to appeal before your Lordships' House. I believe that the restriction was introduced in 1933 at about the time that I was called to the Bar. It was introduced in order to meet endless complaints that people were being dragged up through the hierarchy of tribunals in order finally to meet their Waterloos in your Lordships' House. I now recall that the reform was greeted with almost unanimous approval.

Lord Mishcon

We were all impressed by the experience of the noble and learned Lord the Master of the Rolls who has our great respect. We emphasised, as did another of his colleagues, the way in which the Rules Committee acts and the personnel involved. Can he inform the Committee how often the Rules Committee meets and is it a fact that it has not met for two years?

Lord Donaldson of Lymington

One of the things that always charms me about the noble Lord, Lord Mishcon, is that he is so able an advocate. In particular, he obeys rule 1; that is, never ask a question unless you know the answer. It is true that the committee has not met for about two years. On the whole, that has been to the profit not only of the committee but of its deliberations, which are conducted on paper. Its members are busy people.

The department produces suggestions which have been stimulated by the Supreme Court Rules Committee and other people. I am not averse to submitting written suggestions, as my noble and learned friend will confirm. The suggestions are circulated for comments and we take it from there. It is a possible criticism that there might be one or two cases in which it would have been better to have met, but we did not. I am sure that, in the light of the noble Lord's intervention, if the clause stands part of the Bill and we come to deal with anything as important, the members of that committee will not only circulate their views but, having cleared their minds, will meet in person.

Lord Mishcon

Will the noble and learned Lord accept from my presumption that I should not have obtained leave to appeal from him had I tried and, secondly, that I knew the answer to the question which is why I asked it?

Lord Carlisle of Bucklow

I confess that I was worried about the clause when I first saw it and I should like to ask my noble and learned friend one question. Is it his intention that any rules which may be prescribed that require leave of appeal to the Court of Appeal will make clear, first, that the individual has the right to apply to the Court of Appeal for leave and, secondly, if necessary, to apply to the full court? If that is so, the clause appears to be unexceptionable.

As has been said, the position then would be similar to that of the Court of Appeal (Criminal Division). No one can seriously say that the need to obtain leave is in any way a complete fetter on people because they always have the right to argue the application for leave to appeal to the full court. If that is the intention of the clause as regards civil matters it appears to be unexceptionable and should be passed.

Lord Rippon of Hexham

I too have been racked by doubt as the debate has proceeded. I began from the point of view that the clause was too wide and made proposals which should be dealt with by primary legislation. Of course one must be impressed by the weight of the arguments put forward by the noble and learned Lord the Master of the Rolls and other noble and learned Lords. It may be that the practicality of the matter is with them but, as a layman and one who has had political experience in the other place, I believe that we would be most unwise not to give great weight to the comments of the noble and learned Lord the Lord Chief Justice.

The matter is one of great sensitivity especially at the present time. In dealing with the matters which affect children, the liberty of the subject, immigration and so forth we must be particularly sensitive and careful. We would be unwise to reach any definite conclusion on the matter this evening. It would be wise to read and think about what has been said; at least that is what I should like to do.

Law reform is always difficult. It is almost impossible to carry out satisfactorily without consent. When we have to consider a difference of opinion between the noble and learned Lords the Lord Chief Justice and the Master of the Rolls, we would be wise to reflect on the position most carefully.

7 p.m.

The Lord Chancellor

As my noble and learned friend the Master of the Rolls has said, the point has been raised in almost every annual report that he has submitted since 1984. Indeed, since I have been in office as Lord Chancellor I have been extremely conscious of it.

I had to consider carefully the submissions contained in the annual report, particularly those in the last report. I do not hesitate to read the contents of the 1989 annual report because it is an important matter. My noble friend Lord Rippon of Hexham has suggested that Members should consider the matter and, therefore, I wish to put the considerations fully before the Committee. It states: The justification for the present system whereby some categories of appeal —most interlocutory appeals and some appeals from the County Courts —can only be brought by leave of the trial judge or of the Court of Appeal self, is threefold:— 1. It is no kindness to alow a litigant who is unsuccessful in the trial court to incur costs protesting at this result, if the decision is demonstrably correct or, which is alas all too often the case particularly in matrimonial disputes, if there is no 'right' answer and the trial judge, doing the best that he can, must inevitably be the final arbiter. 2. Allowing such appeals to proceed causes grave injustices to the successful party, who is denied the benefit of the judgment in his favour pending the outcome of the appeal and almost always incurs irrecoverable costs resisting the appeal. 3. The employment of the resources of the Court and the hearing of such appeals inevitably postpones the hearing of other appeals where there is a real issue to be decided". That is my answer to the access to justice question referred to by my noble and learned friend Lord Ackner. I had to consider, as must Members of the Committee, access to justice for everyone. It is an important reason for the present restrictions on rights of appeal that those who have a real point should be able to get on with it rather than have to wait unduly while completely hopeless appeals occupy the time and resources of the court.

I quoted from paragraph 5 which describes the present position and justification for the rules. The report continues: It is to be hoped that in the context of forthcoming legislation arising out of the recommendations of the Civil Justice Review, consideration will be given to extending the requirement for leave to appeal across the board, both because there is no justification for allowing any appeal to proceed if it has no prospect of success and because the present dividing line between those in which leave is required and those in which it is not, is quite illogical". The report then goes on to illustrate some of those cases to which my noble and learned friend the Master of the Rolls referred.

Against that request, it seemed to me that consideration should be given to this matter. When I considered it, I felt that this was not a matter in which one would be wise to go right across the board without detailed consideration of individual cases, including their timing. I take especially into consideration what my noble and learned friend the Lord Chief Justice has said. There may be a time and tide in the affairs of man to which one should look. One may have to be careful in relation to the work which is going down and has gone down to the county court, as to precisely which types of cases may be subject to that requirement.

Personally, I cannot think of a more powerful committee to decide that than the Supreme Court Rule Committee. The noble Lord, Lord Mishcon, from a sedentary position, points out, as the Master of the Rolls said, that it does not meet. I believe that some of the most effective committees proceed best upon paper. It is necessary for the individuals to sign the result. When I ultimately make a rule, I do so after the others have signed. Therefore, perhaps one avoids the difficulty of designing a horse which some committees create, and in this particular case, one has, in effect a document in which each of the members of the committee approve the rule in question. I believe that that is an extremely good way of doing that where it is possible to reach some degree of agreement in principle. If there was a dispute in principle about the matter, of course a meeting might be convenient.

However, the Supreme Court Procedure Committee makes recommendations about changes which are required, and of course they come from individual members of the court. The Master of the Rolls, the Lord Chief Justice and many others have suggestions for improvements in the Supreme Court rules. That is an extremely powerful committee and Members of the Committee may think it unlikely that it would very readily allow interference with the course of justice. I submit to Members of the Committee that this matter should be considered in detail by reference to particular types of cases by that committee.

I make it plain that I intend to put into the primary legislation by amendment that leave can always be given by the Court of Appeal. I shall consider the point made by the Lords Justices this morning that it may be necessary to consider whether a two-judge court would be appropriate in some circumstances. That is something which I shall consider further. Normally, there would be either a single judge or the Court of Appeal itself. However, I shall certainly consider that matter because there are provisions which allow for a two-judge Court of Appeal in certain circumstances at present.

Certainly I make it clear that the leave of the Court of Appeal will always be open to be applied for even if, in addition, one can obtain leave from the lower court. I believe that to be the right way forward. I believe that that will also enable us to take proper account of timing because I hope that this Bill will last for some considerable time. I should expect that process to be careful and deliberate and properly adjusted in terms of time.

Personally, I feel that it would be quite wrong for me as Lord Chancellor to refuse to give consideration to what the Master of the Rolls, with the support, as he has told us, of the Lords Justices who were available, has asked us to do. As I say, I cannot think of a better committee to look at that.

There is one thing my noble and learned friend Lord Ackner said which I feel I should not let pass without challenge; that is, the suggestion that if leave to appeal were to be required and if resources were scarce, the Lord Chancellor would either himself or through his officials direct or indicate to the judges how they should discharge their judicial functions. I regard it as one of the fundamental responsibilities of the Lord Chancellor to safeguard the independence of the judiciary in the exercise of its judicial functions and to safeguard the independence of the judical process. That is one of the aims of the Lord Chancellor's Department as set out in our departmental strategy.

I personally would not for a moment tolerate myself doing such a thing. I never contemplate the idea of telling anyone how to exercise a judicial function. Of course, the Court of Appeal is entitled to direct people at lower levels as to how they should carry out their judicial functions and those at lower levels have a duty to obey those instructions. However, I am talking about the Lord Chancellor, not sitting in any appellate court, in a situation where resources are scarce, directing that leave to appeal should be granted in fewer cases. That would be utterly wrong. I would not think of doing that myself and I would not tolerate that being done by any official on my behalf. Certainly as far as I know that has never been attempted. I should take very strong action if it were ever suggested to me that that had been done.

The judges and the judges alone would have responsibility for deciding whether or not to grant leave. As my noble and learned friend the Master of the Rolls made plain, the only criterion for granting leave would be whether there was any real prospect that the case would be successful. That would be the only consideration. If the case was hopeless, leave would not be granted. If the case had some prospect of success, leave would be granted. I understand that to be the criterion. I commend this clause to the Committee, subject to the undertaking which I gave to bring forward an amendment on the lines which I indicated at the next stage of the Bill.

Lord Hailsham of Saint Marylebone

As the matter has been referred to, I should like to endorse what my noble and learned friend has just said about the function of the Lord Chancellor. Not only do I accept from him that he would never act in the way suggested but I assure the Chamber that I never so acted; nor has anybody with my permission ever so acted. I can also say with confidence that my father, who was twice Lord Chancellor, would never have acted in that way; nor has any other Lord Chancellor to my knowledge.

Clause 7 agreed to.

Lord Rippon of Hexham moved Amendment No.50A: Before Clause 8, insert the following new clause:

("The Construction Division

—(1) There shall be created an additional division of the High Court ofJustice to be known as the Construction Division.

(2) The Construction Division shall consist of judges nominated under section 68(1)(a) of the Supreme Court 1981, to deal full-time with official referees' business in London.

(3) Judges of the Construction Division shall be known as Construction Judges.

(4) Schedule 1 to the Supreme Court Act 1981 (which deals with distribution of business in the High Court) shall be amended by adding at the end —

"Construction Division

4. To the Construction Division are assigned all causes and matters constituting "official referees' business" within section 68(1) of the Supreme Court Act 1981, which are commenced in or transferred to the Division."").

The noble Lord said: This amendment relates to the role and status of official referees. Official referees' courts form a special group of courts within the High Court. They have their own registry in which all steps in actions, from issues of writs and originating summonses to enforcement proceedings, can be taken and court records are kept. They are manned by six London official referees who are assisted by 16 official referee recorders and, from time to time, by visiting judges. I am told on most days there are nine or ten official referee courts sitting.

The official referees' courts are concerned, as the Committee may know, mainly but not exclusively with cases relating to the construction industry, which is, by most criteria, the largest industry in the United Kingdom. Of course, it undertakes much work abroad.

The volume of work undertaken by official referees has grown continually since the early 1970s and in most recent years has increased by about 15 per cent. a year. The cases tried in length, complexity and in the amounts of money involved are among the largest dealt with by the High Court. In addition, official referees hear applications for leave to appeal and appeals from arbitrators in construction cases; they also sit as arbitrators.

I suggest that at the present time the position of the official referees' courts is wholly anomalous. Although they form a de facto division of the High Court, they are not legally recognised as such. Their registry is theoretically composed of parts of the Chancery Division's registry and the Queen's Bench Division central office. Their judges, although selected direct from the Bar to be London official referees and forming a special category for the purposes of judicial salaries, in law are circuit judges. Therefore the official referees feel —my noble and learned friend the Lord Chancellor may be aware of this—that there is a tendency for the official referees' courts to be either overlooked or ignored. They are of course proud of their history. The description "official referee"' dates from 1873, but it really gives to the layman (and many lawyers themselves) no indication of the nature of the work which is performed by the official referees' courts.

I understand that the Official Referees' Users' Committee, which consists of representatives of the professions and bodies engaged in the construction industry, as well as of official referees, the Official Referees' Bar Association and solicitors, included in their proposals for the Civil Justice Review that the official referees' courts should be made a separate division or a specialist court within the Queen's Bench Division. I understand —and this is on the record —that the Civil Justice Review final report, although it recognised the official referees' courts as specialist courts within which proceedings should be commenced initially, did not make any specific proposals in answer to the representations made.

The amendment which I propose would provide proper legal status for the courts consistent with their importance, particularly to the construction industry, though not exclusively. I am also informed that adoption of the amendment would not involve any public expenditure. I hope therefore that my noble and learned friend the Lord Chancellor will carefully consider the views of the official referees, even if he cannot give a final answer today.

There may well also be a better name for a new division than "Construction Division", though that is one they themselves suggest. However, since the creation of a new division of this kind would require primary legislation, this seems to be the only time when it is appropriate to put forward these views and suggestions. I beg to move.

7.15 p.m.

Lord Hacking

Through no fault of the noble Lord, Lord Rippon, or myself, the noble and learned Lord has had a very short time in which to consider this amendment as part of the Bill. It was tabled only towards the end of last week. Not only is the noble and learned Lord in that difficulty; as already identified by the noble Lord, Lord Rippon, the Civil Justice Review, while recognising the specialist role of the official referees' court in paragraphs 105 and 118, did not give detailed consideration to that court. The Civil Justice Review, for example, gave detailed assessment and review of the Commercial Court in chapter 11, paragraphs 754 to 817. That is not to criticise the Civil Justice Review, whose task was almost endless, but to state the fact that the noble and learned Lord is not assisted in this matter by the Civil Justice Review.

In the circumstances therefore I ask the noble and learned Lord if he will kindly listen to this debate, as I am sure he will because he always carefully listens to our debates, listen to the contributions which are made and give himself an opportunity to see some of the written representations which have been made to his department. For example, a long letter of some eight pages in length was written to his department by the then senior official referee, Judge Lewis Hawser, on 23rd July 1987. More recently, and since the publication of the Civil Justice Review, a discussion paper has been prepared by a working group of the Official Referees' Users' Committee on 29th July 1988. If the noble and learned Lord will give himself that opportunity to consider both what is said in this debate and the written representations, perhaps he will then kindly give the matter further consideration and defer reaching any decision during the debate this evening.

As the noble Lord, Lord Rippon, told the Committee, the official referees' court represents one of the specialist functions of the High Court. Indeed, as identified in the Civil Justice Review in paragraph 105 there is generally a movement in the High Court to provide specialist courts: for example, judicial review, special appeals in revenue cases, Admiralty cases, commercial cases and intellectual property. Indeed, it could be said that most of the work of the Chancery Division of the High Court of Justice is highly specialised work. A point made in the Civil Justice Review is that this is perhaps a feature which distinguishes the High Court from the county court.

Of those courts which have had particular success in their specialist role there can be named the Divisional Court —judicial review through the Crown Office List —the Commercial Court, in which the noble and learned Lord, Lord Donaldson, played a significant role when he was the senior judge in that court, and the court to which I particularly draw the Committee's attention, the subject of this amendment, the official referees' court.

As the noble Lord, Lord Rippon, has already told the Committee, the official referees' court takes virtually all the construction industry disputes which are heard in the High Court. It has therefore become de facto a construction specialist division sitting in the High Court in its new premises in St. Dunstan's House, Fetter Lane. Again, as the noble Lord told the Committee, this court deals with very large sums of money, almost invariably six-figure claims. The litigation cases before the official referees' court are also very complex and lengthy. This comparison is not in any way scoring points because the virtue of efficiency of the Commercial Court is widely recognised but the caseload of the official referees' court is, I am told (I see that the noble and learned Lord is frowning at me) marginally more than the caseload of the Commercial Court.

Lord Donaldson of Lymington

Although it is not on my own front, perhaps I may ask a question. Unlike the noble Lord, Lord Mishcon, I do not know the answer. I understood that the official referees wanted to become High Court judges. I understand though that that raises all sorts of issues. However, this amendment would leave them as circuit judges because Section 68(1)(a) of the Supreme Court Act refers to "Circuit judges". If that is so, what is the point of the amendment?

Lord Hacking

If the noble and learned Lord will bear with me I will explain more of the reasons for the amendment. At this stage what is being sought in this amendment is that the official referees' court should be in a separate division within the High Court of Justice, though the presiding judiciary of it will remain circuit judges.

The further reasons which I advance for the proposition that a construction division of the High Court be created in this manner arises, as the Committee has heard, out of the great increase in the number of construction disputes which are heard in London. That has arisen out of the increase in negligence actions, in particular involving construction and engineering activities. More than that, certain reforms have taken place in the official referee's court which have made it a more attractive forum. It has had the ability since 1980 to award interim payments, and cases now to start in the official referee's court.

One of the features of the official referee's court, like the Commercial Court, is that it has been an innovative court. It has a users' committee as does the Commercial Court. It divides up actions and orders the trial of preliminary issues. Such practice is attractive to litigants as it isolates issues of law for determination. It has also been innovative in such matters as exchange of witness statements and the meeting of experts. With both those innovations the court took it upon itself to persuade the parties on a consensual basis: now it is included in the Rules of the Supreme Court.

The decisions of the official referee are widely reported in specialist law reports, journals and periodicals concerned with building and engineering law such as the Building Law Reports and the Construction Law Journal. As the Committee has heard, the court also performs the function of acting as arbitrators and takes appeals from arbitrators which are referred to it.

I hope that that gives the Committee an understanding of the role of the official referee's court and how it has become a de facto division of the High Court in construction matters. The role of the official referee's court has even been recognised by such bodies as the Review Body on Top Salaries which in its report of 1988 states: The work of the London Official Referees, normally six in number, is of a specialised nature. The cases concerned are usually lengthy and technical disputes concerning civil engineering contracts which involve the prolonged examination of documents and schedules, and the assessment of expert evidence.… The Official Referees are required to acquire and develop skills and experience in a highly specialised area of law dealing with issues involving complex technical evidence". Notwithstanding that, for the reasons advanced by the noble Lord, Lord Rippon, they remain in this anomalous position where they do not have the status of a division of the High Court, nor the status of High Court judges. For all those reasons I ask the noble and learned Lord to give further consideration to the amendment. It has the support of the Law Society and of the Official Referees' Bar Association.

Lord Lane

I confess that I do not understand the objective of the proposal. No one doubts that the official referees do a wonderful job of work. They relieve the judges of the High Court of a number of cases which are extremely time consuming. That leaves the judges of the High Court free to do work that is possibly more intricate and more difficult. No one queries that the official referees have all the qualities that the noble Lord, Lord Hackling, has enumerated.

However, this proposal adds absolutely nothing to the present situation. The official referees are now heavily remunerated thanks to the Review Body on Top Salaries, much to the anger of a large number of other ordinary circuit judges. They are organised as though they were a division of the High Court. The official referees are not High Court judges. I now understand —I had misunderstood to begin with —that they do not intend that they should become High Court judges. They are organised under the aegis of their own supremo, Judge Lewis Hawser. They are under the charge of a High Court judge, Mr. Justice Garland, who is answerable to the Deputy Chief Justice and myself. To that extent they have all the resemblance of an ordinary division of the High Court.

Why this proposal is made I cannot understand. If it is to change the name from official referees to construction judges, then perhaps everyone might have saved themselves time.

The Lord Chancellor

I fully appreciate the work of the official referees. I had the honour of opening their refurbished premises at St. Dunstan's House. When I was in practice I used to do quite a lot of work in the area in which the official referees work in England, although mine was, generally speaking, in Scotland.

I say first to my noble friend Lord Rippon that primary legislation is not necessary for this purpose because there is power in the Supreme Court Act for Her Majesty on a recommendation of the judges mentioned —I shall come to them in a moment —to direct any increase or reduction in the number of divisions of the High Court. The judges are the Lord Chancellor, the Lord Chief Justice, the Master of the Rolls, the President of the Family Division and the Vice-Chancellor.

Secondly, I had not understood the amendment properly. I thought that the intention in subsection (2) of the amendment was to make the present judges immediately judges of the High Court. In other words, the judges of the Construction Division of the High Court would be judges at presently nominated under Section 68(1). If that is not the purpose, as my noble friend the Lord Chief Justice has stated, I am not sure what this amendment Is intended to deal with. If it is to change the name to construction judges, I share the doubt of my noble friend Lord Rippon of Hexham as to whether a Construction Division of the High Court is a particularly attractive name for them. In view of the amount of new building that may be required, I believe that it is open to some misinterpretation. From that point of view, I doubt whether that is good.

I shall certainly consider further the arguments that have been put forward. However, I believe that the present situation is satisfactory. At the moment I can see no advantage in giving effect to the amendment.

Lord Rippon of Hexham

As we have heard this afternoon, the Master of the Rolls is expert in collecting voices. The voices that he collects have a spokesman in this Chamber. The official referees have done their best to collect the voices and have asked me to present their point of view to the Committee. It is clearly a matter of some interest and one would hope that brothers in law would understand their concern about their role and status. The amendment does not refer to their pay. As the Master of the Rolls suggests, it may be that they wish to be High Court judges. It may be, as he understands it, that that might be the right way of proceeding. My noble and learned friend has explained that primary legislation is not necessary, and has stated that he will consider the position. I therefore ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Viscount Ullswater

This may be a convenient time to break for dinner. I therefore beg to move that the House be resumed. In moving the Motion perhaps I may suggest that the Committee stage begins again at 8.30 p.m.

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

House resumed.