Civil Procedure Bill [H.L.]

HL Deb 09 December 1996 vol 576 cc872-906

3.12 p.m.

Report received.

Clause 1 [Civil Procedure Rules]:

The Lord Chancellor (Lord Mackay of Clashfern) moved Amendment No. 1: Page 1, line 11, at end insert— ("( ) The power to make Civil Procedure Rules is to be exercised with a view to securing that the civil justice system is accessible, fair and efficient.").

The noble and learned Lord said: My Lords, this amendment derives from the recommendation of the Select Committee on Delegated Powers that the Bill should contain a purpose clause. It seeks to give a flavour of the aims which will be served by the new rules of court made by the civil procedure rule committee in due course. I think it is quite appropriate that Parliament, when giving these important and wide powers to the rule committee, should be able to enunciate what Parliament's own purpose is in doing so.

Your Lordships will note that the amendment now being tabled differs in certain respects from the amendment tabled in Committee by the noble Lord, Lord Thomas of Gresford. I think that it is quite important that the statement of the aims should not give rise to any unintentional impression that some aims have higher priority than others, or that the stated aims are the only ones which have relevance. The phrase "accessible, fair and efficient" brings together, I believe, the essence of what my noble and learned friend Lord Woolf, has been emphasising; namely, accessibility (which covers the objective of keeping costs down, simplicity and clarity of rules and procedure), fairness (a synonym for justice) and efficiency (which covers, for example, speed and proper use of resources).

It is clear from my noble friend's report that he has taken great care to formulate his statement of justice so as to incorporate aspects other than the obvious one of fairness. I would want, subject to consultation on the rules, to be able to preserve the statement of the overriding objective which is contained in the draft rule 1 which my noble and learned friend has proposed. I beg to move.

Lord Thomas of Gresford

My Lords, I am grateful to the noble and learned Lord the Lord Chancellor for including a purpose clause along the lines that I suggested in Committee. Although I say that, as the Lord Chancellor pointed out this was very much the idea of the Select Committee on Delegated Powers. I respectfully agree with the Lord Chancellor that the eight principles set out by the noble and learned Lord, Lord Woolf, in his report are admirably encapsulated in this brief statement of purpose. I commend the drafters of this amendment for their skill.

Lord Irvine of Lairg

My Lords, I, too, support this amendment. It is as anodyne and therefore as good and effective a general purpose clause as one could imagine.

I support it. However, the devil is in the detail.

The Lord Chancellor

My Lords, I am grateful for the support that this purpose clause has received. I hope that we may be able to keep the devil at bay so far as possible.

On Question, amendment agreed to.

Lord Irvine of Lairg moved Amendment No. 2: After Clause 1, insert the following new clause—

THE CIVIL JUSTICE COUNCIL (".—(1) There shall be established a Civil Justice Council, the members of which shall include members of the judiciary and representatives of the Lord Chancellor's Department. the legal professions, court administrators, consumer organisations, advice agencies and other users of the courts. (2) The functions of the Civil Justice Council shall include—

1. (a) to keep under review the civil justice system,
2. (b) to identify changes to the civil justice system directed to enhancing and improving its status and effectiveness,
3. (c) to commission research into proposed changes to the civil justice system,
4. (d) to refer proposals for changes to the civil justice system to the Civil Procedure Rule Committee and the Lord Chancellor, and
5. (e) to assist the Head of Civil Justice in coordinating proposed changes to the civil justice system and in monitoring their impact.").

The noble Lord said: My Lords, this amendment is not the amendment that I moved earlier—that is, Amendment No. 2 in Committee—to establish a civil justice council. On reflection, I preferred Amendment No. 3 in Committee in the names of the noble Lords, Lord Hacking and Lord Thomas of Gresford. As I indicated in Committee, their amendment is a better expression of the general principle of what is required. Therefore, it is that amendment which I have tabled and to which I now speak. It stands also in the names of the noble and learned Lord, Lord Ackner, and the noble Lord, Lord Thomas of Gresford.

In Committee we had full discussion on the need for a civil justice council. The noble and learned Lord, Lord Woolf, in both his interim and final reports advocated the establishment of a continuing body with responsibility for overseeing and co-ordinating the implementation of his proposals. The noble and learned Lord expressed his disappointment in his final report that that important step had not yet been taken. He repeated his concern in our Second Reading debate on 5th November when he said: I see the council as a central plank to my recommendations … It is also the necessary companion to a compact small rules committee".—(Official Report, 5/11/96; col. 622.]

The noble and learned Lord has repeated those views with equal strength in his recent Tom Sergant memorial lecture.

As I said in our discussions in Committee, I found the responses of the Lord Chancellor disappointing. In essence, they amounted to the fact that he appreciated the need for some consultative machinery to drive forward the required reforms of the civil justice system but he was not yet satisfied that a civil justice council as proposed was the most effective way forward. He thought there was much to be said for a co-ordinated structure of the existing court user committees, but that we should await the working through in practice of the proposals of the noble and learned Lord, Lord Woolf, before we could see what sort of structure would be most appropriate. He said, in terms, that there is something to be said for trying to see, as we work through the proposals of my noble and learned friend, just what sort of structure would best serve the purpose he has in mind. For me that was a fine application of the law of unripe time. It was a case of "maybe yes, maybe no; what is proposed is not necessarily right, so let us wait and see". I believe the time to be ripe for the establishment of a civil justice council.

The amendment to which I speak appears to me to provide clearly for what is required; to ensure that all interests in the delivery of justice by the civil courts are represented; and to define its functions properly. If the noble and learned Lord on the Woolsack has any specific criticisms of the form of the amendment, I welcome hearing those in his response.

In Committee I sought to put the issue in this way. The function of the council would he to maintain a continuous overview of the system, to highlight the need for changes, to commission research, to put ideas to the new rule committee and the Lord Chancellor's Department, to assist the head of civil justice

that is to say, to offer him assistance by way of advice— to co-ordinate initiatives, both through practice directions and practice guides, and to monitor the impact of changes on the ground. An important area should he the development of pre-proceeding protocols, designed to help cases to settle before litigation has started, through the development of alternative dispute resolution approaches, in particular mediation, and through practice directions and guides. I see the key point of Lord Woolf's proposal as this: in essence, the civil justice council should take up where the noble and learned Lord, Lord Woolf. leaves off. The way ahead should be a permanent body specifically charged with monitoring and progressively improving the civil justice system. The council would he a vehicle for contributions from all interest groups. It could work with user groups in local courts, and in Divisions of the High Court, to identify problems and to recommend reforms. It should provide a useful source of advice for the noble and learned Lord on the Woolsack, the senior judiciary and the rule committee [and the head of civil justice.] In essence, I suggest, its task would be to ensure that what Lord Woolf has recommended actually happens in practice".—[Official Report, 20/11/96; cols. CWH 9-10-]

I agree with the criticism offered by the noble and learned Lord, Lord Ackner, in Committee of the proposition that what is required is no more than a consultative body or machinery. What is necessary is to have a high-powered body representative of all the relevant interests which monitors the effectiveness of the new rules in practice and measures their success against the objectives which the noble and learned Lord, Lord Woolf, defined in his two reports and which have commanded general acceptance. I beg to move.

Lord Ackner

My Lords, in anticipation that the Master of the Rolls, my noble and learned friend Lord Woolf, might not be able to be present because of pressure of work elsewhere I came well briefed with the speech that he made at the memorial lecture. However, I shall not need to refer to any part of that because he is present. If I had known he were there, I should have asked him to speak before me. Perhaps he would like to do so now.

Lord Woolf

My Lords, I am grateful for the Civil Procedure Bill. 1 acknowledged at Second Reading the debt that I owe to the Lord Chancellor for the way in which he has carried forward the reforms for the civil justice system that I recommended in my report. I believe that they are much needed.

However, like other noble Lords I was concerned at the absence of a civil justice council. I recognise the reasons that the noble and learned Lord the Lord Chancellor wishes to retain flexibility. It seems to me that an amendment on the lines proposed by the noble Lord, Lord Irvine of Lairg, would meet the needs of the council, and at the same time accommodate the flexibility which the noble and learned Lord the Lord Chancellor seeks to retain.

I am most grateful to my noble and learned friend Lord Ackner for giving way to me and for suggesting that I should refer to a lecture for which I was responsible. I can assure noble Lords that I have no intention of inflicting that lecture upon them. The noble Lord, Lord Irvine of Lairg, summarised the points that I sought to make in the lecture.

Perhaps I may condescend to one matter of detail. It may be that I am particularly remiss, bearing in mind the office that I hold. However, on re-reading the amendment today, it occurred to me that perhaps subsection (2)(e) could support a modest amendment. It is not only the head of civil justice who could be assisted by the civil justice council. I suggest that other members of the senior judiciary would be assisted. Indeed, I apprehend that all heads of divisions and the head of the Court of Appeal would also be assisted. Perhaps at a later stage consideration might be given to deleting the reference to the "Head of Civil Justice", who has yet to be recognised in any statutory form, inserting in its place "the senior judiciary". I hope that that might meet the purpose.

The ability of a justice system to be resistant to reform in ways that cannot be anticipated is astonishing. A council of the kind proposed would have different roles to perform at different times. However, I believe that it would make a substantial contribution, first, by co-ordinating the efforts of many people to move forward our civil justice system and, secondly, in ensuring that the momentum which has already started continues—I would hope at an increasing pace.

Lord Renton

My Lords, before the noble and learned Lord sits down, will he be so good as to inform your Lordships as to the number of times in any year the council may be expected to sit, and how much this new bureaucracy would cost?

Lord Woolf

My Lords, I anticipate that the cost would be modest indeed. I anticipate that the council would probably not have to sit more than four times a year, and probably fewer times than that. The important point is that the council is a focus that can be used by those who wish from time to time to bring forward matters. It is the head for the various comparable bodies which will exist around the country if the proposals that I have made are implemented. It would be affected by needs at any specific time. In giving a figure of four times, I am choosing the maximum. The staffing would be modest indeed.

3.30 p.m.

Lord Ackner

My Lords, I am anxious to spare the blushes of my noble and learned friend the Master of the Rolls. However, I wish to quote one piece from his speech which I think encapsulates the anxiety one has if this council is not set up. He said this: When I set out on the Inquiry which resulted in my Report, I was very conscious that since 1885 there had already been over 60 Reports each urging reform of the civil justice system yet the situation on which I had to report was one which many commentators described as being in crisis. Why should this be so? It is not because of any callous disregard of their responsibilities by those in charge of the system. It is my belief part of the cause is the absence of a broadly based body which has the clear responsibility for monitoring the justice system as a whole and identifying the areas which are in need of reform—. That emphasises what a vital part of his proposals this council is.

The proposals made by my noble and learned friend for the civil justice amendments and improvements are indeed radical. They move our system from the adversarial towards the inquisitorial, which many people think is a desirable feature. However, we must bear in mind that the inquisitorial system, as we know from seeing its operation throughout Europe, is considerably more expensive than our system: there are more judges, who sit for less time in court, the better to be able to read the case papers, as a result of which their judicial throughput is far less.

One of the anxieties that I have heard constantly articulated in regard to the proposals of my noble and learned friend Lord Woolf is whether the system would be sufficiently resourced. If it is not sufficiently resourced it will fail. The extra resources required are, I believe, quite considerable. The judges who are presently destined in the majority to undertake the judicial management of cases are the lowest rungs of professional judges. I say that with no disrespect; but the fact of the matter is that the district judge, previously known as the registrar, was not involved in litigation of a very complex kind. It is common ground that he will require extensive training if he is to change his function to that of a case manager. It is bound to be the case that some will be temperamentally not suited to it. In addition, there will be the need for a larger number of such judges. There has already been discussion as to whether there should be a different source from whom the judiciary should be recruited for this job. What is overlooked is that the main thrust of the reform is to make access to justice more popular as a result of its being cheaper and quicker. If it becomes more popular, the caseload will inevitably increase.

I had experience of this some 23 years ago when I was a commercial judge. At that time a commercial judge for the year was not expected to spend more than half his time on commercial work; the rest was spent on ordinary Queen's Bench work. The system was gradually improved, with the result that six full-time commercial judges sit at any one time, with 13 designated in that capacity. The result of improving access to our civil justice procedure, as it should be improved, will inevitably be greater caseloads.

What I anticipate may occur—and this is where I suggest the council is particularly important—is that there will be resistance to providing adequate resources. After all, my noble and learned friend's proposal will involve shifting on to the public purse some of the expense hitherto borne by the litigant himself. If this occurs, it is essential for there to be a powerful statutory body which can state firmly and publicly that the system is falling behind its reasonable expectations because of being starved of the necessary funds.

To those who may say that this is all make believe and imaginative, I ask the Lord Chancellor to go back to the Maximum Number of Judges Order of 1993 which increased the number of High Court judges by 10. Before that order was achieved, strong representations had been made over a period of four years by the Lord Chief Justice and the Master of the Rolls. Those representations failed. In 1992 at a Lord Mayor's dinner given for the judges, attended by the Lord Chancellor and by myself, the noble Lord, Lord Lane, had reached such a pitch of exasperation that he went public about it at the banquet and explained the crisis situation that had been reached.

The noble Lord, Lord Mishcon—who I am delighted to see has just resumed his place—caused a Starred Question to be raised on the very subject of the lack of High Court judges and my noble and learned friend Lord Oliver was at pains to point out that there was currently an over use of deputy judges, which was an abuse of power. That got nowhere. Accordingly, the following year, when the new Lord Chief Justice, Lord Taylor, was appointed, the same complaint was again made at the Lord Mayor's annual dinner, though voiced in stronger terms. That, too, got nowhere.

There followed a wholly unusual event, when the Lord Mayor of London led a delegation to the Lord Chancellor because of the City's anxiety about the state to which the commercial list had fallen, it having been the subject matter of a detailed description of its unfortunate shortcomings by the judge then in charge of the list. A year later the 1993 Order was made. It is therefore not imaginative to think that, when one comes to press for more money to be spent on junior judges, the same resistance may well be encountered. I should therefore have thought that the Lord Chancellor would be delighted to have a body of the stature of the proposed council with the statutory duty to take the necessary action, where required, to complain if the new system falls down because of financial starvation. That would take the heat off himself and his department. It is vital that there should be in place an organisation which is capable of performing that function.

3.45 p.m.

Lord Thomas of Gresford

My Lords, on Second Reading the Lord Chancellor said: Little did I quite realise how effectively [Lord Woolf] would capture the public imagination and the willingness and desire on all sides for reform of our civil justice system-.—[Official Report, 5/11/96; col. 604.] The noble and learned Lord, Lord Woolf, has since, in the Tom Sergant lecture, about which he seems a little reluctant to tell your Lordships, referred to this Bill and to the civil justice council as an instrument for maintaining the momentum of change. This is a moment when we can change a system which has run into the ground.

During the Committee stage the Lord Chancellor acknowledged that some consultative machinery would be desirable to drive forward, as he put it, the reforms of the civil justice system. He said: I certainly do not wish my comments to he taken as implying that I am against a consultative forum—far from it. I wish to ensure that the most effective body possible be established: one that is not unwieldy or bureaucratic; one that has a well defined purpose and role to play and is of sufficient size to be effective—that is, sufficiently small to be effective". (Official Report. 20/11/96; col. CWH 10.) In Committee, the noble and learned Lord, Lord Donaldson of Lymington, described his experiences of the Supreme Court Rule Committee. First, it never met. Second, although rules were suggested by individuals, the noble and learned Lord, Lord Donaldson, said that in practice they came down from the Lord Chancellor of the day and only if he were prepared to agree would those rules go through. I suggested that that was perhaps a top-down culture that had crept into the making of rules. I repeat today that, although the noble and learned Lord, Lord Woolf, has given the necessary drive and leadership, the success of the proposals in his report derives certainly from him but also from the wide consultation process that in fact took place. Since the noble and learned Lord, the Lord Chancellor, has conceded the principle of some consultative body, we are concerned with two matters: firstly, the model of that body; and, secondly, its form, whether it should be a statutory body or a body that is appointed ad hoc.

First let me talk about the model. The remit of the civil procedure rule committee is set out in Clause 2 of the Bill that is before your Lordships today. It is: to make rules which are both simple and simply expressed … land' … signed by at least eight members of the committee". That is it. There is no express provision that the committee will be a standing committee, although one would assume that it would continue in being. There is no time limit for the appointment of members and no provision for further appointment. There is, therefore, no question of any duplication of function between the rule committee concerned with the formulation of rules and the civil justice council, to which the noble and learned Lord, Lord Woolf, referred.

The "well defined purpose" of such a council is set out in the amendment proposed by the noble and learned Lord, Lord Irvine of Lairg. But the question is who monitors the alterations that are bound to take place during the bedding down process of these reforms and, once they have come into a form with which everyone agrees, who then initiates the reforms to the rules that have been proposed as experience shows them to be necessary? It should not be simply the judiciary. It should not be just the lawyers who, as the noble and learned Lord, Lord Woolf, said, resist reform by and large. It should not be the civil servants of the Lord Chancellor's Department or of a future Ministry of Justice, should that ever come to pass. All court users should be involved in monitoring the effectiveness of the Woolf reforms and in initiating any changes that may be necessary to them.

It is important that your Lordships should bear in mind that the Woolf reforms go well beyond making a single body of rules for county court and High Court. The council is concerned with pre-litigation protocols, especially for disclosure of documents, in personal injury cases and medical negligence and housing disputes. It is concerned with the development of alternatives to courts for the resolution of disputes. That is way beyond the remit of any rule committee. It could also be concerned with identifying where practice directions are called for and for discussing their form with the judiciary. A very important part of the reforms of the noble and learned Lord, Lord Woolf, is not simply to set out the framework but to leave it to the judiciary, where it considers it necessary, and to use the procedures already in place to issue practice directions.

It is not an unwieldy and bureaucratic organisation. The model envisaged by the noble and learned Lord the Lord Chancellor would seem to be of a tightly knit committee, meeting with the head of civil justice a few times a year. The idea of a small consultative committee that is appointed ad hoc no doubt derives from the principle of good committee work that a small group is more effective when it comes to taking decisions. But that is not necessarily the best model for the comprehensive overhaul of the civil justice system.

The proposals that are contained in this amendment, on the other hand, would ensure first of all that the proposed justice council would be representative and appointed not simply by the Lord Chancellor but by the various bodies that are concerned in it, such as the Law Society, the Bar Council, citizens advice bureaux and organisations of that nature. Secondly, the proposal is that it should be of sufficient size to permit the formation of sub-groups, which could deal with particular issues: a sub-group on personal injury litigation; on alternative dispute resolution: on research; on information technology; and the formation of practice directions. In the preparation of his report, the noble and learned Lord, Lord Woolf, was assisted by no fewer than 11 working groups, typically of eight to 12 people, headed sometimes by a High Court judge and on other occasions by a very experienced senior solicitor or barrister. Those working groups would be sub-groups of the council that is now proposed, taking a particular issue and discussing it in depth.

Another important function of the civil justice council would be to promote understanding of the system among the people who use it: to get rid of the mystique; to brush away the cobwebs which surround civil litigation and which make the experience of the civil courts such a nightmare for people who go to court to pursue their rights and remedies. That is the model: a civil justice council that is not simply appointed but is representative of sufficient numbers to encompass the necessary areas of work that I have suggested.

Why is there a reluctance that it should be a statutory body? In Committee, the noble and learned Lord the Lord Chancellor said that: it would probably work more effectively if it were capable of being changed from time to time in the light of experience".—(Official Report, 20/11/96; col. CWH 11.) But the amendment of the noble Lord, Lord Irvine of Lairg, gives a wide remit for the proposed council to set its own agenda and procedures and to vary them in the light of experience. Its functions include various matters; it is not exclusive. Is there a fear that such a statutory body might become too powerful and perhaps these reforms are too much to take in one go? Has the scope of the report that has emerged become far wider, requiring a wider vision than was initially expected? It may be appropriate for the Lord Chancellor's Department to let slip some of its control and trust the head of civil justice and a civil justice council to get on with the job from their own knowledge.

The noble Lord, Lord Renton, referred to cost. The complaint about the present system is that it is extremely costly. When rules which might have seemed on paper to be appropriate when the rule committee set them up do not work, it becomes hugely costly in judges' time and the time of the Court of Appeal. An example which has been referred to is the automatic strike-out rule introduced into the county court rules, which to some degree has clogged up the Court of Appeal because of the number of appeals that take place.

I cannot go along with the noble and learned Lord, Lord Ackner, in his comments on district judges, though I make this point. I know many of them and have appeared in front of them. They are people who are certainly well capable of dealing with any of the problems which are likely to arise. My last experience in Southend was that I was sent away without costs, having lost the case, and no quarter for seniority was given on that occasion. They are people well able to deal with these matters.

The proposals for pre-trial protocols and the alternative dispute procedures are outside the remit of the proposed rules committee and so the savings of cost on court time, both in the first instance and on appeal, could be immense and far outweigh the cost of servicing what the noble Lord, Lord Renton, referred to as a costly bureaucracy. Roots and branch reform of the system demand resources, time and money. This is an undertaking which is perhaps far more radical than was originally envisaged. It is more than the relatively mechanical task of producing a common set of rules and procedures and I urge the adoption of the civil justice council on the model proposed and on a statutory basis.

Lord Hacking

My Lords, I am greatly flattered that the noble Lord, Lord Irvine, supported by the noble and learned Lord, Lord Ackner, and the noble Lord, Lord Thomas, should have chosen the amendment I tabled in Committee for introducing this debate on the civil justice council this afternoon on Report. It was my intention to move this amendment myself in Committee, but the noble and learned Lord the Lord Chancellor took the precaution of asking me to represent him in the European Parliament on that day and for that reason I was unable to speak to the amendment at that time.

What concerned me when I looked at the other amendment which was then tabled for Committee was that it did not go far enough in defining the intent, as I understood it, of the noble and learned Lord, Lord Woolf, in making this recommendation. After all, at Second Reading he said, I see the council as a central plank to my recommendations".— [Official Report. 5/11/96; col. 622.] Therefore, in drafting this amendment—drafted somewhat hastily in the Library late one evening—I was seeking to reflect the main roles that the noble and learned Lord, Lord Woolf, saw for the civil justice council. The noble and learned Lord believes that the amendment meets the needs of his proposals but made the point that he would have liked subsection (e) to be expanded further. I believe I am right in saying that I was following his report quite closely when I drafted subsection (e). But if the noble and learned Lord persuades us that it should be on a wider basis, I am happy to go along with that.

It seemed to me—it comes out when your Lordships identify the functions of the civil justice council—that the council had to be a statutory body. That speaks for itself when one looks through the functions and asks whether they can be carried out by an ad hoc body. As the noble Lord, Lord Thomas, said, there is a great flexibility in the functions of the justice council as set out in the amendment.

My noble friend Lord Renton has not yet advanced his arguments on bureaucracy and cost. In tabling the amendment I did not intend to create any burden in that direction, nor did the noble and learned Lord in making the recommendation in the first place.

Lord Renton

My Lords, as I was referred to by my noble friend and by the noble Lord, Lord Thomas of Gresford, perhaps I should rise to my feet. In spite of the phrase that I used when I asked the noble and learned Lord, Lord Woolf, two simple questions, I have not closed my mind on this matter. The noble and learned Lord may think my views are antediluvian because I was called to the Bar before he was born. But I am inclined to think that my views are not without a progressive hint behind them. I speak, as does the noble and learned Lord, from long experience.

Our legal system is already over loaded with supervisory and advisory bodies of various kinds—I have served on some of them. We have the Lord Chancellor and his department. We have the judiciary mentioned in the amendment, which consists of the Master of the Rolls who is responsible for the Court of Appeal, and at the head of each of the divisions is the Lord Chief Justice, the President of the Family Division and the Vice-Chancellor. The High Court judges in each of those divisions, for many years, have met together from time to time to give each other and the Lord Chancellor of the day the benefit of their experience. Sometimes that experience is given to Parliament by noble and learned Lords who hold those positions. The former Lord Chief Justice, the noble and learned Lord, Lord Taylor, was extremely eloquent in giving us the views of the judges of the Queen's Bench Division and of the circuit judges.

We have the four Inns of Court, which have an undoubted responsibility within the Bar. We have the Bar Council and the Law Society. Our system is decentralised and each of the circuits has an elected committee of members whose views are not disregarded by the Lord Chancellor's department or by the members of other circuits. Indeed, now we are to have a statutory civil procedure rules committee.

My fear is that if we introduce the civil justice council as proposed it will supersede the opinions and responsibilities of the various eminent, experienced and high-powered bodies that already exist within our profession. I should not like to see that happening. We do not need another august body, another quango. I called it a bureaucracy; it could not escape being a bureaucracy. It would need to be staffed because it is given responsibilities which would require a good deal of administration and overlap with some of the administration which already exists within our system. However, I shall keep an open mind until the end of the debate.

Lord Lowry

My Lords, I shall be brief. If I venture to say a few words in support of the amendment it is because in one of my judicial appointments I had a lot of experience of legal administration.

Judicial expertise and a genius for administration are not always—indeed, not often—found combined in one person. Without indulging in flattery, my noble and learned friend Lord Woolf combines those two talents. What I am going to say next is not an argument based on personality but an introduction to the only point I really want to make. The noble and learned Lord, Lord Woolf, was asked to make a report on this very important subject when the legal system had got itself into the state with which many of us are familiar. A great deal of work was done over approximately two years, and a very careful report was produced. Part of that report was the recommendation for a council such as we are now discussing. That in itself is something which should make us pause.

I come now to the point I want to make. It is very pragmatic; it is not very intellectual. I had to preside over quite a lot of committees, including the Supreme Court Rules Committee; judges' meetings every week—which would be rather difficult to hold in England; and various informal groups. What I found from my experience was that if there was an idea for change which commanded the support of a sufficient number of sensible people who knew the subject, I began to adopt the attitude: "It is difficult to say, sitting here; but let us try it". I am able to say from my experience that that method worked rather well. There were not too many ideas (perhaps one or two) that went through that net and were tried which we had to abandon.

I sympathise very much with my noble friend Lord Renton in his vision of overloading because that is in itself an evil which we have to fight against and which the report we are considering is fighting against. My only observation on that would be this: here is a new system being proposed and here is a new weapon being proposed by the proposers of that system as being a very important tool to make it work. My advice on this subject, coming back to the old theme, would be: this looks like a good idea to a lot of very sensible people, let us try it.

4 p.m.

The Lord Chancellor

My Lords, this has been an interesting debate. Before I come to the main issue, I should like to respond to what the noble Lord, Lord Thomas of Gresford, said about the proposals that have emerged from the study of the noble and learned Lord, Lord Woolf, as being beyond what was originally envisaged. I could say without fear of contradiction that, having studied some of the earlier lectures of the noble and learned Lord, Lord Woolf, before the Tom Sargant one, some years ago, I was able to form a fairly clear view of the outline of the proposals that would ultimately emerge. They needed a lot of detailed consideration, but the germ of the proposals can be detected in the earlier lectures of my noble and learned friend. Therefore, it was with the greatest of pleasure that I understood that he was willing to undertake this task, and of course it gives me very great pleasure that he has now completed it and obtained for it such a great degree of support.

I have been cautious about the civil justice council as a statutory creation for reasons not dissimilar to those which have been advanced by my noble friend Lord Renton. I am also conscious that a number of bodies are already in existence that have a part to play in this matter. I certainly want to be careful about sweeping aside established organisations in a sudden rush forward, as it were. Therefore, I have sought to ascertain as fully as I could the attitudes of those concerned with these matters as we have proceeded. As I said, I was cautious about the civil justice council for that reason.

I do not believe that my noble and learned friend has ever actually stipulated that it need be a statutory council. He was of the view that it could be a non-statutory council. There are more rigidities about a statutory council than a non-statutory council. However, in the light of the debate that has gone on so far, and in the light of my continuing consultation with those who will be intimately concerned with trying to put this system efficiently into place, I have reached the conclusion that it is now right for me to accept this amendment in principle. I do that.

As has been pointed out, there are details with regard to the drafting of this amendment which we shall have to consider. I would assume that although the body will be representative in the sense of taking people from a fairly wide raft of different organisations, the appointments are appointments to be made by the Lord Chancellor, and that would need to be actually stated.

In case there is any misunderstanding, I should say that I never thought of the civil justice council as a particularly small body. Any observations I was making in that connection were about the rules committee.

The second point has already been mentioned by my noble and learned friend; namely, that the head of civil justice is an appointment, a task, that my noble and learned friend has proposed but, to those who have not fully grasped all that is in the report, the title might be thought to be the top job in the civil justice department. Of course, that is not so. What my noble and learned friend was proposing was a head of civil justice at first instance, because the need for co-ordination at that level is clear; and it is clear also that the senior judge in our system, in the system for England and Wales, in relation to civil justice is the Master of the Rolls as the President of the Civil Division of the Court of Appeal. Therefore, it would be right that the person who happened to be the head of civil justice would not be singled out specially to require assistance in this connection, and the assistance should be assistance which is available to the judiciary as a whole who are concerned with civil justice.

There are possibly some other matters that require consideration. I welcome the form of this amendment as an inclusive one. It gives as much flexibility to the civil justice council as is consistent with its being a statutory body, and in view of the arguments that have gone on, I have concluded that it is wise to make it a statutory body but to seek to retain the maximum flexibility in that connection.

The ultimate responsibility of the rules committee for the rules is sufficiently preserved by this amendment. Also, the references to the head of civil justice make it clear that the responsibilities of the judiciary in this matter are not being encroached upon, which is an important aspect, not only in relation to the actual decision of cases, but in relation to the administration which, for example, the presiding judges presently carry out.

I said at Committee, and I repeat, that my understanding is that the Vice-Chancellor, as the head of civil justice, has indicated his intention to make an annual report to the Lord Chancellor on developments in civil justice. I am anxious to avoid any unnecessary bureaucracy or any unnecessary cost because I believe that the money that is available is best spent on the actual work on the ground rather than on any bureaucracy. However, I believe that in principle the amendment gives us sufficient flexibility to arrange matters in such a way as to minimise the overall cost and to have in mind that its ultimate objective is to reduce the cost of the system.

I undertake to bring forward an amendment at Third Reading to incorporate those aspects. In the light of that undertaking, I hope that the noble Lord, Lord Irvine of Lairg, will feel able to withdraw the amendment.

Lord Renton

My Lords, before the noble Lord replies to my noble and learned friend the Lord Chancellor, I wonder whether my noble and learned friend would be so good as to confirm that the new body will be only an advisory body and will not supersede the responsibility of any of the other bodies that I mentioned.

The Lord Chancellor

My Lords, my concern in this matter was to ensure that that would be the case, particularly in relation to the judiciary. My understanding of the matter is that the body is essentially advisory in its character. It would promote the interests of civil justice; it would not allow the profile of civil justice—because the inquiry of my noble and learned friend Lord Woolf had finished—to fall; and it would try to harness the tremendous amount of enthusiasm in all branches of the profession and keep that momentum going. It is certainly not the intention—in accepting the amendment I would not have any intention—that this body should entrench upon the responsibilities of the bodies to which my noble friend referred.

Lord Irvine of Lairg

My Lords, I welcome what has been said by the noble and learned Lord on the Woolsack. He has accepted that there should be a civil justice council resting on statute. He has accepted the principle of the amendment and will bring forward his own amendment at Third Reading. I was also heartened that he had no particular criticisms to make of the proposed amendment and that, on the contrary, he welcomed it as containing as much flexibility as could be given to a statutory body. My understanding is that the council would be advisory in nature.

I have no difficulty with the proposition of the noble and learned Lord, Lord Woolf, that the words "the Head of Civil Justice" would be better replaced by the words "the senior judiciary" or "the judiciary" in Clause 2(2)(e). Furthermore, having regard to what was said by the noble Lord, Lord Renton, it is no part of my intention that the body should either be excessively bureaucratic or excessively costly. On the contrary, I believe that both can be easily avoided.

We now have a very short period of time between Report and Third Reading. It is a fact that the noble and learned Lord is not yet in a position to canvass the terms of the amendment that he will bring forward. I urge him that such an amendment be prepared in draft with the least delay so that it can be made available in good time for consideration in advance of Third Reading by those who have made their useful contributions today. On that basis, I beg leave to withdraw the amendment.

The Lord Chancellor

My Lords, before the noble Lord sits down, I shall certainly do my best to produce my amendment as rapidly as possible to enable as much time for its consideration as is possible before Third Reading.

Amendment, by leave, withdrawn.

Clause 2 [Rule Committee]:

4.15 p.m.

Lord Ackner moved Amendment No. 3: Page 1. line 24, leave out ("two') and insert ("three").

The noble and learned Lord said: My Lords, the purpose of this amendment, grouped with the other amendments, is to increase by two the number of practitioner members on the rules committee. The function of the committee is to make rules for the day-to-day working of the courts. It is therefore vital that the rules committee has on its membership sufficient numbers of professionals engaged daily in the conduct of litigation who can be expected to have direct and detailed knowledge of the problems.

My proposals would work as follows: the addition of one extra advocate would enable the Lord Chancellor to appoint an advocate with suitable seniority—probably a QC—with experience of Chancery work in the High Court and in the Court of Appeal. Chancery work, as your Lordships know, embraces a wide field of activity; trusts, real property, wills, intellectual property, copyright and company law, to quote the main titles. There would be one advocate—no doubt of comparable seniority—with experience of common law work in the High Court and in the Court of Appeal. Again, common law now embraces commercial, construction, personal injuries, professional negligence and judicial review. The third practitioner, who need not be of the same seniority as the former two, would have particular experience of county court advocacy. Similarly, the extra appointment to the committee of a litigator would bring in a solicitor of suitable seniority with experience of Chancery work in the High Court and the Court of Appeal, a solicitor of suitable seniority with experience of common law work in the High Court and the Court of Appeal, and one solicitor or litigator with particular experience of the county court. The three new members would be expected to have collective experience of most types of cases heard in the Supreme Court and the county courts.

An amendment grouped with my amendment suggests that there should be two extra but the two would be the litigators or the solicitors. I should have thought that that would create an imbalance. I beg to move.

The Lord Chancellor

My Lords, my attitude to the rules committee is that it should be as small as is practicable so that the work is carried on efficiently. It is true that one can think of a variety of different experiences, all of which are relevant to this situation. However, I would hope that those appointed to the rules committee would have a sufficiently general appreciation of the nature of court procedure and the overall thrust of the rules to be able to carry out the function as the rule-making body with appropriate consultation—I accept the amendment in relation to consultation—with all those who have particular skills. I am anxious not to make this rule committee larger than is necessary to achieve the task.

It depends on who else wants to come into this body. It is the overall result that in a way determines the matter. A number of amendments have been grouped with this amendment. I should like to gain some impression of the overall view on this matter before reaching a final decision on the amendments. At the moment I am not convinced that it is wise to proceed on the basis of the different specialties and areas of expertise which have underlain the proposals of my noble and learned friend Lord Ackner. After all, if one takes the expertise down to a sufficiently fine level, there are a very large number of areas of expertise in our system at the present time. So it is a question of where one stops in this matter.

The other amendments which have been grouped with this amendment raise these matters as well as the question of the appointments. We shall come to the method of appointment later.

Lord Irvine of Lairg

My Lords, perhaps we should make our position plain with regard to Amendments No. 3 to 7, 11 and 13. We support Amendments Nos. 3 to 7 in the name of the noble and learned Lord, Lord Ackner. I shall not move Amendment No. 6 in my name, which proposes that "two" shall be increased to "four" at page 2, line 1, of the Bill. I am content with Amendment No. 5, which would increase "two" to "three". I remind your Lordships that there is not before us today, as there was at Committee stage, an amendment proposing that the representation from the advice sector and the consumer sector should be increased from two to four. Therefore, the noble and learned Lord's amendments for an increase in size appear to us to be modest, while I am conscious of the force of the argument, which I do not believe that these amendments infringe at all, that the rule committee must not be so large as to be unwieldy. Also in this group of amendments are Amendments Nos. 11 and 13 in my name. I shall not move either of them. I hope that clarifies the position.

The Lord Chancellor

My Lords, I am extremely grateful for that clarification. In the light of those observations I am disposed to accept the amendments which my noble and learned friend Lord Ackner has proposed to increase the number to three. That relates to the amendment which he is presently moving and, I assume, Amendment No. 5, which would increase the number of litigators as well.

As regards Amendment No. 4, I hope that my noble and learned friend will be prepared to leave that on the basis that we shall seek as broad a level of experience as possible in the rule committee. It is obvious, for example, that we would wish particular experience of the High Court to be available to the committee. So I hope that it is right to leave it to the good sense of the appointing authority to try to achieve a balance between the county court and the High Court and the various types of expertise. So if my noble and learned friend will go that distance with me, I shall be content to accept Amendments Nos. 3 and 5 on the understanding that Amendment No. 6 will not be pressed.

Lord Ackner

My Lords, I am grateful to my noble and learned friend the Lord Chancellor. I would like him to ponder once again Amendments Nos. 4 and 7. The county court looms particularly large in litigation nowadays because its jurisdiction has been so substantially extended. The practitioners who cover the High Court are likely to have left their county court days some years behind them. I appreciate that there is to be a wide measure of consultation, but those who consult must be in a position to evaluate the advice that they receive. If they are not adequately experienced they will be unable to do so. That is why the amendment was put forward on the basis that it was balanced; that there would be two advocates and litigators who would cover the field of the High Court and only one advocate and litigator who would cover the field of the county court. If that is not so provided there is a risk that the county court might be overlooked to an extent which is undesirable and the balance that we have rather carefully put forward and which, I believe, is supported by my noble friend Lord Irvine of Lairg, would be upset. I wonder whether my noble and learned friend the Lord Chancellor would ponder this matter again.

The Lord Chancellor

My Lords, I am certainly prepared to ponder. I am very willing to undertake that the concerns of the county court will by no means be overlooked. I am very conscious of the need to appoint at least one person with experience of the county court. What I am saying to my noble and learned friend—and I am very willing to consider the matter further—is that I doubt whether it is necessary to do that any more than it is necessary to say, "And some of them will have High Court experience". It is clear that a fairly wide level of experience is required to be mustered among the three that we have now agreed should be in each of the classes. I certainly undertake to consider the matter further, but that is how I see the matter at the moment. In the meantime I am content to agree to Amendment No.3.

On Question, amendment agreed to.

Lord Ackner had given notice of his intention to move Amendment No. 4: Page 1, line 25, at end insert ("at least one of whom has particular experience of practice in the County Court,").

The noble and learned Lord said: My Lords, on the basis of what my noble and learned friend has said about thinking about the matter again, I shall not move this amendment. I noticed that he said that it was not intended to ignore the county court and that at least one member will be particularly experienced. That sounds as if on occasions there may be two members from the county court. That would immediately create an imbalance with the High Court. That is why we have suggested, by the way in which we have put forward the amendment, that the balance would be adhered to. But, on the basis that further thought might be productive of greater harmony, I shall not move the amendment.

[Amendment No. 4 not moved.]

Lord Ackner moved Amendment No. 5: Page 2, line 1, leave out ("two") and insert ("three").

On Question, amendment agreed to.

[Amendment No. 6 not moved.]

Lord Ackner had given notice of his intention to move Amendment No. 7: Page 2, line 3, after ("Court,") insert ("at least one of whom has particular experience of practice in the County Court.").

The noble and learned Lord said: My Lords, on the same basis as I dealt with Amendment No. 4, I do not propose to move this amendment.

[Amendment No. 7 not moved.]

4.30 p.m.

The Lord Chancellor moved Amendment No. 8: Page 2, line 3, leave out from ("Court") to end of line 4 and insert—

• ("(g) one person with experience in and knowledge of consumer affairs, and
• (h) one person with experience in and knowledge of the lay advice sector.").

The noble and learned Lord said: My Lords, this amendment is self-explanatory. I have accepted the amendments proposed in respect of this matter following our Committee stage. My noble friend Lady Wilcox had a particular interest in this matter, as did the noble Lord, Lord Irvine of Lairg. I believe that we have achieved a reasonable basis for going forward and I am therefore glad to accept the position that was put to me, which is now exemplified in Amendment No. 8. I beg to move.

Lord Irvine of Lairg

My Lords, I welcome the amendment. It responds positively to an amendment which I moved in Committee. As I acknowledged then, the noble and learned Lord on the Woolsack may well have intended by the expression in Clause 2(2)(g)— two persons with knowledge of the working of the courts"— to include persons whose experience derives from the consumer and advice sectors. That is now made express by Amendment No. 8, which the noble and learned Lord has just moved, and I therefore support it. As I said in Committee, I would have been happier if there had been four representatives of those sectors, not merely two. The noble and learned Lord has not agreed with that. Although I retain a concern that the rule committee, as defined by Clause 2(2), is too lawyer-dominated—as I said, however, I appreciate the arguments in favour of not having a committee of excessive size—I welcome the amendment and we support it.

Baroness Wilcox

My Lords, like the noble Lord, Lord Irvine, I too support the noble and learned Lord's amendment given that his amendment achieves a key goal which the amendment that I tabled in Committee would have realised; namely, to ensure a designated place for a consumer representative and one for someone from the lay advice sector. This provision is significant in the civil justice world. It is important that users of the courts have a voice in decisions about how the courts are run. It is in everyone's interest that we have a legal system that ordinary people no longer find remote, bewildering, off-putting and incomprehensible. We should have a system in which everyone can participate as fully as possible. We seem to be moving towards achieving that, and I am happy to support the amendment.

Lord Thomas of Gresford

My Lords, the noble Baroness, Lady Wilcox, has said everything that I wanted to say. We support and welcome the amendment.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 9: Page 2, line 12, at end insert— ("( ) The Civil Procedure Rule Committee must, before making or amending Civil Procedure Rules, consult such persons as they consider appropriate.").

The noble and learned Lord said: My Lords, again I have sought to respond to what was said in Committee by the noble Lord, Lord Irvine of Lairg. I think that that view was generally shared. Indeed, I had rather assumed that that would be the effect of the provisions, but there is no harm in putting them this way and on the face of the statute. That is why I have tabled Amendment No. 9, which I commend to your Lordships. I beg to move.

Lord Irvine of Lairg

My Lords, it is important to note the precise language of this amendment. The amendment seeks to insert at the end of page 2, line 12: The Civil Procedure Rule Committee must, before making or amending Civil Procedure Rules, consult such persons as they consider appropriate". Your Lordships will note that we are next to consider Amendment No. 10, which stands in my name, and which would make a different amendment to this effect. It states: Before appointing a person under (g) subsection (2)(g) the Lord Chancellor must consult those organisations which are members of the Advice Services Alliance, the National Consumer Council and other appropriate organisations representing the interests of consumers". In Committee, the noble and learned Lord indicated that, subject to the drafting, he was happy to accept an amendment along the lines of what was Amendment No. 13 in Committee. I understand that Amendment No. 9, which the noble and learned Lord has just moved, is intended to achieve the same effect. In Committee I expressed a preference for what was then my amendment, Amendment No. 18 and which is now Amendment No. 10 standing in my name. That amendment makes specific reference to the interest groups and organisations which ought to be consulted.

I have a preference for the provisions of Amendment No. 10 because they expressly involve consumer groups and advice agencies in consultation, thus recognising on the face of the statute their very important role. If what is intended is that the rule committee should consult those bodies, I really do not see why the statute should not say that clearly and expressly. However, if the noble and learned Lord will confirm that in terms of his Amendment No. 9 he intends that the rule committee should consult the kind of bodies referred to in my Amendment No. 10, on the footing that they are bodies obviously appropriate to be consulted, I would be minded in due course not to move Amendment No. 10 and, on that basis, to support Amendment No. 9.

The Lord Chancellor

My Lords, as the noble Lord, Lord Irvine, said, Amendment No. 10 relates to consultation before making the appointment whereas Amendment No. 9 relates to consultation in respect of rules once the rule committee is in position. On Amendment No. 10, I am content to undertake in relation to paragraph (g) of Amendment No. 8 to consult bodies which seem appropriate in the consumer area and, in relation to paragraph (h), to consult bodies that are appropriate in the lay advice sector. I undertake that such consultation will be carried out in relation to the appointments.

Amendment No. 9 relates to the making of the rules. The position may depend a great deal on the nature of the rule. If the committee is considering amending a rule in relation to patents, it might be that consultation is required with a different group from that involved in more general amendments on, for example, the question of in which court particular matters should first be heard.

Additionally, bodies such as those specified in Amendment No. 10 are apt to change their names. If a fixed name is part of the statute, the provisions may be deprived of content in due course. That is why I believe that an amendment along the lines of Amendment No. 9 is more appropriate—if I may use that word once more, having used it in the amendment—to this situation. With regard to Amendment No. 10, I undertake to ensure that consultation with the appropriate bodies will take place in relation to the making of the appointments of the persons required (under paragraphs (g) and (h)) to serve on the rule committee. I hope that that will meet the concerns expressed by the noble Lord, Lord Irvine of Lairg.

Lord Ackner

My Lords, before my noble and learned friend sits down, I wonder whether he can help me on a small matter relating to Amendment No. 9. Is not the test under Amendment No. 9 a subjective test, given that the provisions refer to, such persons as they consider appropriate"? Should not the test be objective and the provisions refer to, such persons as are appropriate"?

The Lord Chancellor

My Lords, it is possible to do that, but one has to have confidence in the rule committee to try to make the best job that it can of the matter. The way to reach that is for it to look at the rule in question and consider it. If it came to a totally unreasonable decision, under the rules of judicial review, as I understand them, there would be a redress. I hope that that would never arise, because I am sure that a rule committee appointed under this authority would have the necessary responsibility to do that appropriately. However, strictly speaking, as framed, the amendment is one which makes the matter subjective, but the overriding duty in performing a public law duty of this kind is to act reasonably.

Lord Ackner

My Lords, if that is the case, and we are to have confidence in the committee, do we need the amendment at all?

The Lord Chancellor

My Lords, I started off without it, but in the light of the views expressed, I decided to put it in. Any rule committee operating in the present circumstances would certainly wish to consult. We want a rule committee that will work. It was thought wise to make it clear; and, in the light of the wisdom displayed to me in Committee, I accepted that advice, and here I am. So I am content with the amendment as it is expressed, and I hope that your Lordships will be, too.

On Question, amendment agreed to.

Lord Irvine of Lairg had given notice of his intention to move Amendment No. 10: Page 2, line 12, at end insert— ("( ) Before appointing a person under (g) subsection (2)(g) the Lord Chancellor must consult those organisations which are members of the Advice Services Alliance, the National Consumer Council and other appropriate organisations representing the interests of consumers.").

The noble Lord said: My Lords, in the light of the undertakings given by the noble and learned Lord on the Woolsack in relation to Amendment No. 10 to which I sought your Lordships' leave to speak on Amendment No. 9, I shall not move the amendment.

[Amendment No. 10 not moved.]

[Amendment No. 11 not moved.]

Lord Irvine of Lairg moved Amendment No. 12: Page 2, line 15, at end insert— ("( ) The Civil Procedure Rule Committee must, when making civil procedure rules, meet to discuss and agree these rules.").

The noble Lord said: My Lords, Amendment No. 12 is in line with Amendment No. 17 to which I spoke in Committee under that number. The noble and learned Lord on the Woolsack will well recollect what is its subject matter. It is designed to oblige the rule committee, when making rules, actually to meet to discuss and agree them. As I observed in Committee, any member of the public who was told that the rule committee was not under any such obligation would be very surprised. In reality, the present Supreme Court Rule Committee does not meet; it conducts its business solely by post, as I understand it. In effect, it is not a committee, but it may well be a group of individuals who are invited to endorse proposed rule changes put forward by others.

It would be neither onerous nor expensive for the proposed rule committee to meet a few times a year to discuss and agree rule changes. In Committee, the noble and learned Lord on the Woolsack said: I have found the method of working on the Supreme Court Rule Committee somewhat unsatisfactory. On the other hand the County Court Rule Committee has worked because it can and because it is reasonably small. That has something to do with the membership and the size of the committee that consists of all the top judges. They have other responsibilities and it is difficult to arrange meetings. This goes back to the point of the size of the committee, which was discussed. I am entirely in favour of a committee that meets to discuss those matters; that is what I am aiming at, and I believe that that is what we shall get".—[Official Report, 20/11/96; col.CWH24.]

In the light of that statement by the noble and learned Lord in which he said he said that he favours a committee which meets to discuss these matters; that is what he is aiming at, and that is what he believes we shall get, I invite him to accept the amendment on the basis that a statutory obligation should be imposed on the new rule committee to meet. I would add that a statutory duty to meet is all the more necessary because of the experience of the present Supreme Court Rule Committee, which we know does not meet. I beg to move.

4.45 p.m.

Lord Ackner

My Lords, I support the amendment. It seems that what is proposed is not what happens at the moment, necessarily. It is desirable that it should happen. I believe that it should therefore be clearly stated.

Viscount Bledisloe

My Lords, the amendment goes too far. I can see the desirability of the committee meeting to discuss the rules, but that it should only be able to agree them by meeting is surely inconvenient. It often happens at meetings—for example, board meetings—that there has been a discussion and something is not known or is not right. So someone says, "Let us send people away. They can draft the final result, and that can then be circulated". On the basis of this amendment, that could not be done even though everyone was agreed. The redraft would have to come back to a further and subsequent meeting, but could only be agreed at a meeting.

There must often be cases when it is appropriate for things to be done by circulation; for example, someone suddenly realises after the meeting that if one rule is to be amended, another has also to be amended. The date has to be changed in that one as well. To say that can be done only by a further meeting makes the task enormously onerous.

Lord Thomas of Gresford

My Lords, I support the amendment. It would be easy to slip into the same way as the Supreme Court Rule Committee has slipped—that is to say, never to meet at all. I take the point that the noble Viscount has just made; where eight members of the committee are required to sign their consent to a rule, they should at least meet to discuss it to ensure that they all agree.

Lord Mishcon

My Lords, there was a dramatic moment in the history of this House when the noble and learned Lord, Lord Hailsham, recorded to the House the decision that had been made by the rule committee: that no longer should defendants be addressed by Her Majesty on a writ, but that the whole of the writ should be reworded with any reference to Her Majesty being omitted. I took the liberty on that occasion of trying to move an annulment of an order, which, if I may say so, was a brave thing to do. I can remember so well the noble and learned Lord, with his customary elegance and courtesy, telling the House that after great consideration, the rule committee had made that decision, and it was recommended therefore to the House and to the legal profession.

I dared—that was even more courageous, in my view—to ask the noble and learned Lord whether that committee had met frequently to discuss that extreme alteration in our procedure, and the removal (which in my view was a historic one) in this address to a defendant at the commencement of a civil action. There was some hesitation before the noble and learned Lord replied. That is not usual with the noble and learned Lord, Lord Hailsham. But when he did reply he frankly admitted that there had not been a meeting of the rule committee—if my memory is correct—for some two years; but he undertook that there would then be a meeting to consider the debate which had taken place in your Lordships' House. That was not a very favourable reference to the rule committee, with all the power that it was exercising on that occasion. Therefore, it is a salutary experience to have these words suggested by the amendment in the Bill.

The Lord Chancellor

My Lords, there is little difference in principle between us. I believe that it is right to preserve to the committee the opportunity of agreeing rules by post. However, it is highly desirable that it should meet sufficiently. That can be achieved by the terms on which it is appointed. Perhaps the easiest way of achieving that is if I give an undertaking that the conditions under which people are appointed shall include the requirement to attend a minimum number of meetings. The members could have more meetings if they wished, but the procedure would ensure that this was a meeting committee rather than one operating only by correspondence.

The noble Lord, Lord Thomas of Gresford, pointed to the existing situation with the Supreme Court Rule Committee. I must point to the existing situation with the County Court Rule Committee. To an extent, the difference is due to the size of the committee. It is very much easier for the members to meet, whereas the Supreme Court Rule Committee comprised such an array of high-powered talent that it was extremely difficult to get their diaries together, as my noble and learned friend Lord Hailsham discovered.

If your Lordships believed that a clause was required, I should not be adverse to including one. However, we must keep open the possibility of agreeing by post amendments in the discretion of the committee. As the noble Lord, Lord Meston, mentioned previously, often matters are left to be dealt with in detail. It would be impossible to say that at the moment of the conclusion of the meeting a precise agreement on the rules had been reached but there could be sufficient understanding to make it likely that agreement would be reached and the detailed rule then presented. Subject to that, I am content to accept the provision if it is insisted upon.

Lord Irvine of Lairg

My Lords, of course I am not opposed to rule changes which have been discussed in meetings but perhaps not finalised being subsequently agreed and resolved by post. That is only sensible. However, the need to recognise that does not lead to the elimination of the need for any meetings at all. The primary means of the committee proceeding, if it is to operate as a meaningful committee, is by actual meeting. I am not satisfied that an obligation on persons to attend a minimum number of meetings as part of their terms of appointment greatly helps if no meetings are being held. I should have thought that the terms of their appointment must yield to the fact that there are no meetings for them to attend. I should prefer the noble and learned Lord to undertake to consider Amendment No. 12, if he can say that he supports it in principle, with a view to seeing whether it can be approved. It could, for example, be drafted to read: The Civil Procedure Rule Committee must, when making civil procedure rules, meet to discuss these rules with a view to agreeing them". That form of language would not run into the problem to which the noble Earl, Lord Bathurst, drew attention. Before reaching a final view on whether to test the opinion of the House, I invite the noble and learned Lord the Lord Chancellor to respond.

The Lord Chancellor

My Lords, there is no difference between us on this issue. Certainly it is not the kind of issue that I should wish to have a great problem about. I anticipate the difficulty mentioned by the noble Lord, Lord Irvine of Lairg, about the terms of appointment by requiring the chairman to deal with the matter. However, if that is not thought to be satisfactory I am perfectly content to see whether we can produce a workable amendment which carries the sense that the committee will be a meeting committee and not one which discharges its business entirely by post. Perhaps with that undertaking the noble Lord will feel able to proceed.

Lord Irvine of Lairg

My Lords, on the basis that the noble and learned Lord will give thought to the matter between now and Third Reading and will bring forward an amendment which in his judgment meets the sense of what has been said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 13 not moved.]

Clause 4 [Power to make consequential amendments]:

The Lord Chancellor moved Amendment No. 14: Page 2, line 32, leave out subsection (2) and insert— ("(2) The Lord Chancellor may by order amend, repeal or revoke any enactment passed or made before the commencement of this section to the extent he considers necessary or desirable in order to facilitate the making of Civil Procedure Rules. (3) Any power to make an order under this section is exercisable by statutory instrument. (4) A statutory instrument containing an order under subsection (I) shall be subject to annulment in pursuance of a resolution of either House of Parliament. (5) No order may be made under subsection (2) unless a draft of it has been laid before and approved by resolution of each House of Parliament.").

The noble and learned Lord said: My Lords, I shall speak also to Amendment No. 31. Amendment No. 14 is designed to give effect to what I said in relation to the Government's response to the recommendations made by the Delegated Powers Scrutiny Committee. The amendment addresses the point as follows. If the rule committee is minded to make a rule which would override an enactment, the enactments would have to be identified and the necessary amendments made to those enactments. I would lay a draft order containing those amendments before the rules were made and that order would then be subject to the affirmative procedure. Once the order is approved, the rule committee would make the relevant rules.

The amendment builds on the order-making power already contained in Clause 4(1) which provides for consequential amendments to be made via the negative resolution procedure. The new subsection (2) then makes provision for an affirmative procedure to apply to amendments which are other than consequential. It will have the effect of ensuring, as I have said, that Parliament's approval is obtained before the committee makes the rule which overrides a statutory provision. The matters which would go into an affirmative order would include any rules flowing from paragraphs 2 to 4 of the schedule which overrides an enactment.

The amendment to Clause 4 renders paragraph 8 of the schedule unnecessary as I also agree that paragraph 8 ought not to be interpreted as applying to future enactments. I beg to move.

Lord Ackner

My Lords, does the amendment have any impact on Amendment No. 33, which is the last amendment on the Marshalled List? That amendment is designed to deal with the allocation of business between the High Court and the county court and seeks to preserve the present position which requires the affirmative resolution before such orders are made. If it does affect it perhaps I ought to deal with the merits of my amendment.

The Lord Chancellor

My Lords, my understanding is that the provisions are quite independent. Amendment No. 14 deals with the activities of the Civil Procedure Rule Committee. Amendment No. 33 in the name of my noble and learned friend deals with the allocation of jurisdiction as between the county court and the High Court, which is not a matter subject to the civil procedure rules.

Lord Ackner

My Lords, I am grateful.

On Question, amendment agreed to.

5 p.m.

Clause 6 [Power of courts to make orders for preserving evidence, etc.]:

Lord Irvine of Lairg moved Amendment No. 15: Page 3. line 18, at end insert ("or (c) the delivery up of property which is or may be the subject-matter of the proceedings or as to which any question arises or may arise in the proceedings.").

The noble Lord said: My Lords, I moved this amendment in Committee as Amendment No. 21. The noble and learned Lord on the Woolsack and I have been in helpful correspondence between Committee stage and today on the subject of these amendments which I moved in Committee concerning the Anton Piller jurisdiction. I desire to mention now that the noble and learned Lord has taken a favourable view of Amendments Nos. 24, 28 and 29 which I moved in Committee and has responded to them with his own amendments.

Amendments Nos. 21 and 26 which I moved in Committee correspond to today's Amendments Nos. 15 and 19. What I sought to achieve in tabling those two amendments in Committee, and what I seek today, is to address a particular problem which practitioners have drawn to my attention and which, in Committee, the noble Lord, Lord Meston, was able to confirm from his own experience in practice.

Under the existing Anton Piller jurisdiction, any property recovered from a respondent—and I emphasise these words, must be held for safekeeping by the applicant's solicitors".

That is what the order says. There are an increasing number of cases where the property recovered is needed immediately by the applicant for the purposes of his business. My concern was that, as the law presently stands, an applicant might find that the Anton Piller jurisdiction operates to interfere and obstruct his recovery of urgently needed property and to that extent would operate to defeat the objective of Parliament in its provision of the right to require an interim delivery up of property.

I emphasise "interim delivery up of property" because it is quite clear that Section 4 of the 1977 Act and the relevant rules of court contemplate that the delivery up of property can and should be as much an interim as a final measure.

In the correspondence to which I have referred, the noble and learned Lord on the Woolsack assured me that Clause 6 is not intended to limit in any way the existing jurisdiction of the court under Section 4 of the Torts (Interference with Goods) Act 1977 and Order 29, Rule 2A RSC to make interim orders for the delivery up of property as distinct from the mere preservation of property.

I shall press these amendments but if the noble and learned Lord confirms that it is his understanding that a party seeking Anton Piller relief is entitled also at the same time to move the court for other relief such as the interim delivery up of property under Section 4 of the 1977 Act, then I shall beg leave to withdraw them. I beg to move.

The Lord Chancellor

My Lords, I am grateful to the noble Lord, Lord Irvine of Lairg, for engaging in correspondence with me, which I believe was copied to other noble Lords who took part in our discussions about Anton Piller orders on which I have also had the great benefit of the very rapid and thorough advice of the Vice-Chancellor in whose division most of the orders are granted. By that, I do not mean that all applications are granted but that when orders are granted they are often granted in his division.

The situation is that Clause 6 is intended to confer a new jurisdiction on the court in relation to the statutory position in order to confirm what the court has done in exercise of its inherent powers in the past in relation to the entry of property and obtaining possession of the property.

My understanding is clear. The power to make an interim delivery order exists separately under the Torts (Interference with Goods) Act 1977 and is unaffected by this clause. There is no question of the court not being able to make an interim order under that Act as well as under this clause. Of course, the precise terms in which the Section 6 jurisdiction is exercised might well be affected by the application for the other order; for example, if the order were made in the terms indicated by the noble Lord, Lord Irvine of Lairg, in respect of the Anton Piller order, that would not fit very well with the sort of situation he mentioned. But I have no doubt that the court has the power to make the appropriate order using, as appropriate, the different jurisdictions which it has. I want to make it clear that my understanding—and I think that I can safely say that it is the understanding also of the Vice-Chancellor—is that those are distinct jurisdictions and that the power to exercise more than one of them at the same time is not in any way affected and it would be a matter for the court to consider.

As the noble Lord said, the ordinary rule is that when property comes forward, or is taken possession of under an Anton Piller order, an independent person is usually authorised to hold it. That is the normal situation that would need to be varied in the particular situation to which the noble Lord referred. I believe that that does happen in practice. Therefore, I hope that I am able to give in clear terms the assurance for which the noble Lord asked; namely, that the Anton Piller jurisdiction conferred by Clause 6 will be in addition to, and exercisable at the same time as, the other jurisdictions which the court presently has; subject, of course, to the court considering the appropriateness of that exercise and the terms in which it should occur.

Lord Irvine of Lairg

My Lords, on the basis of that explanation, which is admirably clear, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Lord Chancellor moved Amendment No. 16: Page 3, line 21, leave out ("("the respondent")"). The noble and learned Lord said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 17 and 18 and 20 to 24 inclusive, since they are all linked.

These amendments relate to a matter which was raised by the noble Lord, Lord Irvine of Lairg, in Committee and supported by other noble Lords. I have considered them in some detail, as I mentioned earlier, with my learned friend the Vice-Chancellor and I am grateful to him for his assistance on this point, which was given very clearly and speedily.

The main purpose of Clause 6 is to dispense with the fiction that the entry on the premises is with the consent of the owner/respondent. At present, the standard form of Anton Piller order refers to "the respondent" and others such as "employees" or others, appearing to have control of the premises".

However, this clause will have the effect that in future it is more clearly the court order which is the basis of the requirement to permit entry, not the implied consent of the owner. It will no longer be desirable to imply that the execution of the Anton Piller order is dependent upon the consent of the owner or a person whom he might have authorised to give consent on his behalf.

I understand also from the Vice-Chancellor that it is not always the practice that all the persons who are authorised to enter the premises under the order will actually be named in the order. They will be described in some cases by their function—for example, the supervising solicitor—or by reference to the numbers of those who are authorised to enter. The linked amendments make the necessary changes to a terminology and for clarification purposes.

Therefore, I believe that the noble Lord's amendment was well taken and that the changes which are made by these amendments meet the point completely and clearly. I beg to move.

Lord Irvine of Lairg

My Lords, I welcome the amendment which, as the noble and learned Lord has just explained, removes the word "respondent" from Clause 6(2). It makes clear the power to require any person to assist entry, and so on, who might be in a position to do so. I am grateful to the noble and learned Lord for observing that this amendment is directly responsive to an amendment which I moved in Committee as Amendment No. 24.

The intention of that amendment was to make it clear that the persons obliged to comply with an order were not only the respondent to the application itself but also other persons, such as employees and those in control of premises in the absence of the respondent. I believe that it is wise to leave out the word "respondent" because it implies a specific, named person. I therefore support the amendment, as I do the other amendments in the group which are linked. I should like to record the appreciation of these Benches for the fact that the Vice Chancellor, Sir Richard Scott, has so promptly provided his assistance on the points in relation to the Anton Piller jurisdiction raised in Committee.

On Question, amendment agreed to.

The Lord Chancellor moved Amendments Nos. 17 and 18: Page 3, line 22, leave out first ("named") and insert ("described"). Page 3, line 22, leave out from second ("person") to ("is") and insert ("so described").

On Question, amendments agreed to.

[Amendment No. 19 not moved.]

The Lord Chancellor moved Amendments Nos. 20 to 24: Page 3, line 32, leave out ("respondent") and insert ("person concerned"). Page 3, line 33, leave out ("named") and insert ("described"). Page 3, line 34, leave out ("named in the order") and insert ("so described"). Page 3, line 36, leave out from first ("any") to ("or") and insert ("person described in the order"). Page 3, line 36, leave out from second ("any") to ("is") and insert ("person so described").

The noble and learned Lord said: My Lords, I spoke to these amendments when dealing with Amendment No. 16. With your Lordships' leave, I beg to move.

On Question, amendments agreed to.

Lord Irvine of Lairg moved Amendment No. 25: Page 3, line 38, leave out subsection (6) and insert— ("( ) An order under this section—

1. (a) is to have effect subject to such conditions as are specified in the order, and

1. (b) may include, in addition to any relief specified in this section, any other order or direction which the Court has jurisdiction to make relating to the preservation or delivery up of evidence or property or any other subject-matter of the proceedings or as to which any question arises or may arise in the proceedings.").

The noble Lord said: My Lords, such an amendment was moved by me in Committee as Amendment No. 27. I move it again today. I believe the noble and learned Lord on the Woolsack to be of the view that the amendment is unnecessary because the court will retain its jurisdiction to make any other order which it now has power to make. In reply, no doubt the noble and learned Lord will wish to confirm that that is his understanding.

I would also ask the noble and learned Lord to confirm that it is his understanding that the court presently has power—and I believe that he has already in effect said so—in conjunction with, or as an ancillary to, an Anton Piller order to order the interim delivery up of goods to the applicant for immediate use by him. It is a fact that, in practice, an increasing number of cases are coming before the courts where the claimant requires, for the purpose of conducting his own business, documents, disks or dies which have been removed, say, by an employee for use in a rival business.

It would, therefore, be helpful if the noble and learned Lord would confirm, as I believe he has already done in substance, that, in the context of this amendment, the court does have power in an appropriate case to order, at the same time as making an Anton Piller order, the interim delivery of goods to the applicant for immediate use by him. That is to say that the court, subject to an appropriate application, can make an order appropriate to the circumstances of the case where the applicant has invoked a jurisdiction of the court. I beg to move.

The Lord Chancellor

My Lords, I believe that I have answered the question in substance, but I am happy to do so again in relation to the amendment now before the House. The purpose of the clause is to confer a jurisdiction on the court. The exercise of the jurisdiction conferred by this clause may be combined with the exercise of any other jurisdiction that the court has which it is appropriate to exercise at the same time. I certainly understand that to be the present position; namely, that the court has power. Where it has jurisdiction to make orders under more than one jurisdiction at a time, the terms of the order will need to be consistent with the exercise of those jurisdictions.

Accordingly, in my view the proposed clause is unnecessary; indeed, it might have another effect in that it could suggest that this jurisdiction was somewhat special in that it could be used in association with others. I believe that the general position is that jurisdictions which the courts have can, in suitable circumstances, be the basis of an order, even if more than one jurisdiction is invoked should the court think that suitable in the circumstances of the case.

Lord Irvine of Lairg

My Lords, on that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.15 p.m.

The Lord Chancellor moved Amendment No. 26: Page 3, line 39, at end insert— ("( ) This section does not affect any right of a person to refuse to do anything on the ground that to do so might tend to expose him or his spouse to proceedings for an offence or for the recovery of a penalty.").

The noble and learned Lord said: My Lords, in moving the amendment I shall, with the leave of the House, speak also to Amendment No. 27. In Committee, the noble Lord, Lord Irvine of Lairg, and others, raised the question of whether there was any intention through this clause of changing the law on privilege against self-incrimination. I took the view then, as I do now, that there was no such intention; indeed, I certainly never had such an intention. However, it was thought sufficiently important in Committee that that should be made plain. Therefore, Amendment No. 26 addresses that point both plainly and clearly.

Amendment No. 27 deals with a slightly different point, but it is important and convenient to take both amendments together because, again, it is a question of what was intended by the clause. The question was whether the purpose of subsection (7) was to render the primary legislation subject to subordinate legislation. That was certainly not the intention. I would wish it to be plain that the purpose of the rules would simply be to supplement the statutory provision on points of practice and procedure. That being the case, and having reconsidered the matter, I now consider that the clause does not need to make any specific reference to the power to make rules. The amendment would cut out the provision which gave rise to concern in Committee. I beg to move.

Lord Irvine of Lairg

My Lords, we strongly support the amendments. They are responsive to the concerns I expressed in Committee, which I believe were supported by others, when moving Amendments Nos. 28 and 29 at that time. The effect of the amendments is to make it absolutely clear that Clause 6 is not to be taken as altering the law on self-incrimination. I desire to put on record again the fact that I entirely accept—as I did in Committee—that the noble and learned Lord on the Woolsack had no intention whatever to alter the law in relation to self-incrimination. I am happy to support the amendments which put the matter beyond any doubt.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 27: Page 3, line 40, leave out subsection (7).

On Question, amendment agreed to.

Lord Irvine of Lairg moved Amendment No. 28: Page 3, line 43, after second ("Court") insert— ("inspection" includes the inspection of data stored in computer readable form, and references to permitting inspection include permitting access to any such data,").

The noble Lord said: My Lords, in moving the amendment, I shall, with the leave of the House, speak also to Amendment No. 29 which is tabled in my name. I moved such amendments in Committee (as Amendments Nos. 30 and 31). I can assure your Lordships that I was well intentioned in moving the amendments at that time. I was proposing a definition of the word "inspection" so as to clarify the position concerning information stored in computer systems or otherwise in computer readable form, in order to ensure that a respondent or other person could be required to give access to any such information.

The second definition—that of the word "record"—was also aimed at clarifying the rights of an applicant. However, I know that case law already exists as regards the meaning of these terms and that the advice of the noble and learned Lord the Lord Chancellor is that it is desirable to leave room for development of the meanings of these expressions by the courts, without fixing any precise definitions, should the development of technology render that desirable. Nor would I have any desire to cast doubt on the use of those terms in other statutes where they are not defined in the manner proposed in these amendments.

Certainly, I would not wish to be the cause of any confusion about the meaning of "inspection" or of "record"; far less would I wish to put a brake on the meaning of these terms as expounded by the courts. However, I invite the noble and learned Lord, in responding to these amendments, to assure me, if he feels able, that Clause 6 in its present form enables a court to order a person to provide another with access to a computer system and to enable that other to make print outs or to copy data on to disks. I beg to move.

The Lord Chancellor

My Lords, I am grateful to the noble Lord for the way in which he has explained the amendment. I take the view that the meaning of "inspection" and "records" has grown over time to embrace the meaning which those terms have in a computerised context. I would also wish to avoid creating any remote impression that other statutory references to such terms do not extend to computerised data or records, or to data held on information systems called by some name other than "computers". Technology is developing all the time; language has to grow with it and so, too, the meaning which the courts give to such terms. I would consider that it is a necessary implication of the conferral of the powers granted by this clause that it would extend to enabling a court to order a person to provide another with access to a computer system and to enable that other to make print outs or to copy data onto disks. It is a necessary implication because the clause would be rendered ineffectual without it. I hope that in the light of that explanation the noble Lord will feel able to withdraw this amendment and that he will not wish to move Amendment No. 29, which this explanation is intended to cover.

Lord Irvine of Lairg

My Lords, on that basis I am content to withdraw Amendment No. 28. I shall not move Amendment No. 29. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 29 not moved.]

Schedule 1 [Civil Procedure Rules]:

[Amendment No. 30 not moved.]

The Lord Chancellor moved Amendment No. 31: Page 6, leave out lines 10 and 11.

The noble and learned Lord said: My Lords, I have spoken to this amendment with Amendment No. 14. I beg to move.

On Question, amendment agreed to.

Schedule 2 [Minor and consequential amendments]:

The Lord Chancellor moved Amendment No. 32: Page 7, line 37, after ("rules)") insert— ("(a) after subsection (3) there is inserted— (3A) Rules made under this section may make different provision for different cases or different areas, including different provision—

1. (a) for a specific court, or
2. (b) for specific proceedings, or a specific jurisdiction, specified in the rules.",.

and (b) ")

The noble and learned Lord said: My Lords, the power to make rules of court in relation to family proceedings in the High Court and county courts is contained in Section 40 of the Matrimonial and Family Proceedings Act 1984. This amendment inserts a new subsection into that section which provides that such rules may make different provision for different areas or for specific proceedings or specific courts. This would allow the rules to provide for future pilot projects and would bring them in line with the civil procedure rules in respect of which a similar power is contained in paragraph 7 of Schedule 1 to the Bill. My learned friend the President of the Family Division has indicated his support for such pilots. It is desirable to provide express power for such pilots. I think we probably all agree on the value of pilots in some situations. I beg to move.

On Question, amendment agreed to.

Lord Ackner moved Amendment No. 33: Page 7, leave out lines 39 to 41.

The noble and learned Lord said: My Lords, this, happily, is the last of the amendments. It is concerned with the allocation of business between the High Court and the county courts. The effect of paragraph 4 to Schedule 2—which I seek to excise—which is headed "Minor and consequential amendments" is, as the explanatory memorandum indicates, to provide for the, negative resolution procedure to apply to orders made under section 1(1) of the Courts and Legal Services Act 1990 regarding the allocation of business between the High Court and county courts".

I remind your Lordships of the provisions of Section 1 of the Courts and Legal Services Act 1990. It provides that the Lord Chancellor, may by order make provision:—

1. (a) conferring jurisdiction on the High Court in relation to proceedings in which county courts have jurisdiction;
2. (b) conferring jurisdiction on county courts in relation to proceedings in which the High Court has jurisdiction:
905
3. (c) allocating proceedings to the High Court or to county courts;
4. (d) specifying proceedings which may be commenced only in the High Court:
5. (c) specifying proceedings which may be commenced only in a county court;
6. (f) specifying proceedings which may be taken only in the High Court;
7. (g) specifying proceedings which may be taken only in a county court".

Section 120 of the Courts and Legal Services Act 1990 provides: (I) Any power to make orders or regulations conferred by this Act shall be exercisable by statutory instrument … (4) No instrument shall be made under section 1(1) … unless a draft of the instrument has been approved by both Houses of Parliament".

The affirmative resolution procedure required for orders under Section 1 of the Courts and Legal Services Act 1990 should—this is the purpose of the amendment—remain and not be removed. There are two main reasons for this. The powers given by Section 1 to which I have referred are far wider than either the existing rule making powers of the Supreme Court Rule Committee or the proposed rule making powers of the proposed unified rule committee. In particular, under Section 1 the Lord Chancellor may make provision conferring jurisdiction on county courts in relation to proceedings in which the High Court has jurisdiction; allocating proceedings to the High Court or to county courts; and specifying proceedings which may be commenced or taken only in a county court.

I have the support of the Bar Council in this measure. It is the belief of the Bar that any litigants and potential litigants would be concerned at any erosion of their right to a High Court trial. It is in the public interest that the affirmative resolution procedure be retained. Further, Section 120(4) providing for the affirmative procedure was enacted in November 1990; that is just over six years ago. We do not consider that there has been any sufficient change of circumstance in the past five or six years to justify an amendment.

I appreciate that it may be claimed by the Government that the minor additions to the jurisdictional arrangements effected by the increase of the small claims limit to £3,000 for all but personal injury cases attracted no parliamentary interest. That was no doubt because they were both minor in nature and not particularly controversial. Anything more significant would be a proper matter for public and parliamentary debate. I beg to move.

The Lord Chancellor

My Lords, as my noble and learned friend Lord Ackner indicated earlier, there was a major increase in the jurisdiction of the county courts following the 1990 Act and the use of the power in question. Since then the amendments have been comparatively minor and have attracted little attention. The Hansard report of the debate in this House on 16th December 1994 to the most recent amending order took two minutes of the House's time and provoked no questions. That does not seem a good use of Parliament's time. If people have questions, the negative resolution procedure is available.

The power to make such orders is vested in the Lord Chancellor, not the rule committee, and this change is not related to the amendments regarding laws of court overriding enactments which I have tabled.

The Select Committee on Delegated Powers and Deregulation supported the justification for the change from affirmative to negative procedure. Its report expressly deals with the matter; and it is familiar with the conditions under which these matters should be either affirmative or negative. It does not foreclose a decision to the other effect by the House. However, in my submission to your Lordships, the fact that the major change has taken place and that if any change in the future were controversial it would certainly attract attention is sufficient safeguard. In the meantime, the sort of orders that we propose are unlikely to require the attention of an affirmative resolution. That being supported by the committee in charge of considering the matter from the point of view of your Lordships' House, I venture to suggest that the amendment should not be given effect.

Lord Ackner

My Lords, I am bound to say that I am somewhat disappointed in my noble and learned friend's reply. However, in the circumstances, I do not propose to press the amendment, and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.