COMMONS AMENDMENTS (Hansard, 24 October 1990)

§ The Lord Chancellor
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 10 and 11 en bloc. This is an important matter which again follows on discussions in your Lordships' House. The purpose of these amendments is to meet anxieties expressed in this House and the other place that the requirement to 1346 apply for leave would involve a risk of injustice, particularly in cases where the liberty of the subject is at stake.
On Report I suggested that that risk could be eliminated in practice by requiring applications for leave in certain classes of case, such as those involving the liberty of the subject, to be heard by three judges —the same number as would sit to hear a full hearing. These amendments empower the rules of court to impose such a requirement in appropriate classes of case.
Moved, That the House do agree with the Commons in their Amendments Nos. 10 and 11.—(The Lord Chancellor.)

§ Lord Mishcon
My Lords, I believe that the spirit of this amendment will commend itself to the whole House. However, there is a very dangerous precedent being set and I feel it my duty to call the attention of the House to it.
The right of appeal to the Court of Appeal or, indeed, any right of appeal, is very much a sacred matter which should be dealt with by Parliament. For the first time as far as I know—and the noble and learned Lord will correct me if I am wrong, but even if there is a precedent it is a bad precedent—we are here saying that the Rules Committee can legislate for the number of judges who might constitute a proper Court of Appeal in certain cases. That is a bad precedent because I and my colleagues in the profession believe it should be a matter for Parliament and dealt with by primary legislation and not as is envisaged in this amendment by the Rules Committee. That is the comment which I feel it is proper for me to make to your Lordships' House. However, I do not intend to resist the Commons amendment.

§ Lord Donaldson of Lymington
My Lords, the present position is that where leave to appeal is applied for to the Civil Division of the Court of Appeal, so far as statute law and Parliament are concerned, in every case it would be dealt with by a single Lord Justice sitting by himself. Furthermore, his decision is final.
We have domestically—if that is the right word—made some exceptions to that and on occasion applications for leave to appeal are dealt with by courts consisting of two or three Lord Justices. However, the purpose of this amendment is to relieve anxieties such as those expressed by the noble Lord, Lord Mishcon, by providing in terms in what categories of cases such applications shall be heard by more than a single Lord Justice, which represents the present law of Parliament.
Therefore, it is not a case of Parliament delegating to the Rules Committee a power in any way to restrict the rights of the litigant. If one were to stand it on its head and be a little inaccurate, it is giving the Rules Committee the power to restrict the freedom of action of the judges.

§ Lord Mishcon
My Lords, with the leave of the House perhaps I may say that the noble and learned Lord the Master of the Rolls, as always, has answered an argument with great ability. But it was not the 1347 amendment to which I was objecting—I said I would not oppose it—it was the precedent by which the Rules Committee was given some jurisdiction over the numbers of judges of the Court of Appeal, whether increasing the numbers or otherwise. That was the point I wished to draw to the attention of the House.

§ The Lord Chancellor
My Lords, as my noble and learned friend the Master of the Rolls pointed out, the amendment concerns leave to appeal. As I understand it at the moment that is at large for the Court of Appeal to decide. It is therefore a step in the direction in which the noble Lord, Lord Mishcon, wishes to go; to provide power to the Rules Committee to vary the numbers of judges in specific cases. It is a response to what was said. I know that the noble Lord, Lord Mishcon, wished to put the position on record. It is more in relation to the material already in the Bill and not covered by the amendment that the matter arises. I am sure that the noble Lord, Lord Mishcon, is content that the amendment should go through.