§ The Committee consisted of the following Members:
§ Mr. A. P. Costain (in the Chair)
|Bates, Mr. Alf (Bebington and Ellesmere Port)||Kershaw, Mr. Anthony (Stroud)|
|Boardman, Mr. H. (Leigh)||Lawrence, Mr. Ivan (Burton)|
|Clegg, Mr. Walter (North Fylde)||Percival, Mr. Ian (Southport)|
|Clemitson, Mr. Ivor (Luton, East)||Roberts, Mr. Albert (Normanton)|
|Evans, Mr. Gwynfor (Carmarthen)||Ryman, Mr. John (Blyth)|
|Flannery, Mr. Martin (Sheffield, Hillsborough)||Solicitor-General, The (Mr. Peter Archer)|
|Havers, Sir Michael (Wimbledon)||Stradling Thomas, Mr. John (Monmouth)|
|Kaberry, Sir Donald (Leeds, North-West)||Weitzman, Mr. David (Hackney, North and Stoke Newington)|
§ 10.30 a.m.
§ The Solicitor-General (Mr. Peter Archer)
I beg to move,
That if the proceedings on the Administration of Justice Bill [Lords] are not completed at this day's sitting, the Committee do meet on Wednesday next at half past Ten o'clock.
I hope that this transpires to be an academic question, but, since we may find our proceedings interrupted from time to time by Divisions in the House, I think it wise to commend the motion to the Committee.
§ Question put and agreed to.
§ Sitting suspended for a Division in the House.
§ On resuming—
§ The Solicitor-General
I beg to move,
That the Chairman do now report to the House that the Committee recommend that the Administration of Justice Bill [Lords] ought to be read a Second time.
If ever there was a Bill which did not lend itself to a Second Reading speech
§ this is indeed one. It is a collection of technical improvements to the administration of justice in civil proceedings. None of them is likely to be widely remarked by the general public. None of them is dramatic, and the most imaginative of political commentators would be hard pressed to find party political issues in any of them.
§ From time to time situations occur which reveal imperfections in the administration of the law, unforeseen consequences of particular provisions, and difficulties which Parliament and the draftsman have failed to foresee and provide for. Then someone will usually say, "We will make a note for the next Administration of Justice Bill". I believe that the last Bill of this kind became the Administration of Justice Act 1973 and there have been a number of such matters in the intervening years. They have no necessary connection one with another and anyone seeking to trace a philosophy running through the Bill is likely to be disappointed.1685
§ The Bill was introduced in some detail in another place by my noble Friend the Lord Chancellor, and it was there subjected to careful scrutiny. So for all these reasons I do not propose to subject this Committee to a long Second Reading speech. I do not intend to treat individually of all its provisions. We shall have an opportunity to discuss in Committee any detailed points which any hon. Members wish to raise, and if there are any matters which hon. Members may wish me to elaborate on at this stage, I am sanguine enough to hope that I may have leave of the Committee to speak again at the end of the debate, but the Committee may forgive me a passing reference to two or three of the provisions.
§ Clause 17 relates to arbitration procedure in the county court. There are not many subjects on which politicians who are lawyers are encouraged to speak, but I have found a wide variety of audiences who wish to know more about this subject. This is the highly successful small claims procedure which operates in the county court.
§ Instead of hearing cases in open court, with formal rules of evidence and procedure, the court can deal with small cases informally and in private, heard by a judicially qualified arbitrator, but one who is not bound by the normal rules of procedure and evidence. The system has enabled a large number of people successfully to bring or defend their cases without a lawyer. It is used mainly for small consumer claims or for claims arising out of motor accidents. In 1976 more than 12,000 cases were determined by arbitration in the county court.
§ At present an intending litigant does not know at the outset whether, if the case is defended, it will be referred to arbitration or tried in open court, and this may discourage litigants from bringing small claims to the county court, since they may not wish to employ a lawyer, but are not prepared to risk conducting a formal trial in person. It was felt that the procedure would be improved if it were possible to make rules of court specifying circumstances in which proceedings would be referred to arbitration, so making clear the position to intending litigants at the outset, and this is the purpose of Clause 17(1).1686
§ Clause 23 and Schedule 4 are about local courts whose judicial functions have fallen into abeyance, and they formally terminate these moribund jurisdictions. Since at one period I had occasion to study these courts in depth for a book I was writing, I have come to think of some of them as tried friends, and it is not usually a pleasure to see one's friends pensioned off; but this is not the end of the courts themselves. They will continue to sit, and continue to exercise any non-judicial function which may be valued in their locality.
§ For example, the Ancient Court Leet and Court Baron of the Manor of Broms-grove, near the area which I represent, will continue to appoint a bailiff and reeve and other officials; it will continue to take presentments; it will continue to hear an annual proclamation of the ancient charter granted in 1199; and it will continue to observe the ancient custom of the midsummer fair. Courts which currently exercise judicial functions will not lose them, so when the court bailiffs of Denbigh hold their annual round up of sheep on Crown wastes, in a manner reminiscent of the round up and sorting out of strays to which the Wild West was addicted, claims to ownership of the sheep will continue to be adjudicated on by the Estray Court of Denbigh.
§ What the Bill does, as recommended by the Law Commission Report No. 72, is to remove the doubts and the temptations to resurrect moribund Jurisdictions which always exist where the position has not been made clear by statute.
§ Clause 18 refers to the register of judgments and orders in which are recorded unsatisfied judgment debts in the county court and which can be inspected by those who are concerned to know whether someone is creditworthy. It increases from £10 to £30 the threshold at which a judgment debt becomes registrable if it remains unpaid for 28 days. £10 was the amount set in 1852 when the register of county court judgments was first established. At that time £10 was a substantial amount, and it covered very few consumer transactions. As the pattern of trading has altered over the years, the register now contains a large number of very small debts; but even so it does not contain, and has never sought to contain, all unpaid judgment debts. 1687 That being so, it is not unreasonable, I suggest, that this amount should now be raised. The first proposal that the qualifying sum should be increased to £50 attracted criticism, and, in consequence of representations which were made, the amount was reduced in another place to £30, the figure which now appears in Clause 18. I understand that this amount is acceptable at least to a substantial number of those who are interested in the creditworthiness of potential customers, and I hope that it will be regarded generally as being pitched at a satisfactory level.
§ Clause 18 also provides that this figure may be altered in future by regulation, and that the conditions under which judgment debts become registrable can be changed in the same way. It is clearly desirable to have available for this purpose a procedure which does not involve legislation. If there was any doubt about this it would have been dispelled by our experience of the past 12 hours. I am aware that there are those who are troubled that regulations might be made without consulting the interests concerned. I repeat the undertaking given by the Lord Chancellor in another place that regulations will not be made by virtue of this power without full consultation with all those concerned, those interested in credit as well as consumers.
§ Finally, a word on Clause 15. This provides for increases in the probate and the Admiralty jurisdiction of the county court. These may not at first sight appear to revolutionise the daily lives of ordinary people, but they will mean that a person of moderate means who dies, for example, leaving a modest house will not commit his or her relatives to probate proceedings in the High Court with its attendant expense. The family who like to spend their weekends in a small boat, if they are involved in a salvage claim— which can happen to the most careful of us—will no longer find themselves enmeshed in High Court proceedings. The clause takes the opportunity to provide that these figures, the last financial limits on county court jurisdiction, which at present require legislation to change, may in future be changed by Order in Council.
§ I promised not to make a long Second Reading speech, and, since politicians always honour their promises I will leave 1688 it there. This is a useful Bill which, in a number of respects, will improve the service that the legal system and the legal profession can offer to the public. I commend it to the Committee.
§ 10.52 a.m.
§ Sir Michael Havers (Wimbledon)
I congratulate the Solicitor-General upon the way upon which he introduced the Bill. He gave a more than adequate survey of it, although there are one or two matters I want to take up. One or two of the things in it have a respectable pedigree since they were created in the Law Officers' Department under his predecessor, and we are glad to see them at last coming to light. One met an untimely death in a Bill which died in February 1974. I give a general welcome to the Bill.
Clause 9 does something that needs to be done by removing an injustice and it has interesting wording in that it is designed to prevent an unnecessary flood of appeals to the House of Lords.
Under Clause 12 I am a little anxious about the reduction of the period of time, that is, from five to three years, a solicitor, if appointed to a circuit judge only, has to sit under his contract for 20 days per year. That would normally be 60 days for the three-year period. One wonders whether this is sufficient time, but the Lord Chancellor reserves his right to make him go on longer if he feels he needs to gain experience.
Clause 15 overcomes a problem and seems to be good sense, and I certainly support it. Clause 16 is extremely sensible, and this will lead to a saving in the county court of costs to litigants and, therefore, is to be encouraged.
Clause 17 is sensible. I am not sure whether we shall ever see again what once happened to me when a preliminary point was being argued before Lord Goddard, then Lord Chief Justice but sitting in a civil capacity. There was great doubt about the arbitration clause and both sides had all their witnesses there, including a number of high-powered experts waiting to see the preliminary point decided and whether the arbitration clause did not apply. Lord Goddard realised this and said that the arbitration clause applied. He asked us if we would agree to his being the arbitrator. We agreed. He then took off his wig and moved down to the seat below 1689 the judge's chair and sat as an arbitrator. I wonder if that will ever happen again.
Clause 18 concerns the limit for the debtors' register, and all credit to the Lord Chancellor for conceding the register should remain. It was also agreed to reduce the minimum sum from £50 to £30. We are not sure whether it should be £30 or below, but no doubt this point can be gone into more in Committee. Perhaps the Solicitor-General is able to say to the Committee what sort of savings are involved now that the sum has changed from £10 to £30? £10 has been in existence for a long time and it seems an unrealistic figure now.
Clause 23 one looks at with sadness —the abolition of powers of these historic old courts—but I am happy, as an ex-Recorder of Dover, to see the Cinque Ports remain; and that the ecclesiastical courts have been retained, as I used to be a diocesan chancellor.
Clause 24 has perhaps the most respectable pedigree of all. This appeared, I believe, in the Land Charges Bill which failed when the last Conservative administration went out of office. This was causing anxiety to the Director of Public Prosecutions for some years, and making his task more difficult. This is a sensible amendment and will be a great aid in the enforcement of the law.
§ 10.58 a.m.
§ Mr. David Weitzman (Hackney, North and Stoke Newington)
We are all a little wearisome now as we turn to the intricacies of the law, and indeed, it is a little light relief, particularly with the island of laymen in a sea of lawyers.
As the Lord Chancellor pointed out when moving the Second Reading in another place, the Bill contains a number of helpful improvements in the administration of justice. I would like to add my approval and make one or two points.
I am glad that, as a result of discussions in another place, Clause 8 has been inserted. It has always seemed to me absurd that, unless one gives a specific reason, one cannot elect to affirm. The noble and learned Lord Gardiner referred to a case where a witness was not allowed to give evidence because of this. It really is ridiculous how often the oath is gabbled off with no concern for its meaning, and it is really profaning the oath. 1690 It seems to me that Clause 8 is a very proper provision in allowing a person to affirm if he so wishes, wherever an oath is required in law.
I believe, too, that Clause 16, under which the Lord Chancellor can direct that persons in legal employment can address a court, is a very proper one for proceedings in a county court. It is a very useful provision, because there are many proceedings in which a court can be assisted in this way, and in which it is unnecessary and costly for counsel or solicitors to attend. I remember many cases in which companies had to be represented, and could be represented only by counsel or solicitors appearing for them.
Clause 18 raises the amount from £10 to £30. I suppose that members of the Committee have had this memorandum from the Retail Consortium, which sets out a very strong case indeed as to why the amount should not be raised at all. I do not propose to go into it in any detail, but I suggest that it ought to be studied very carefully so that the matter can be dealt with in Committee.
I particularly welcome Clause 14. It has always seemed to me rather absurd that one could not go to the county court, as one could go to the High Court, to ask for an injunction or a declaration, unless one joined with it a money claim or some other cause of action. This clause will enable a person to do what is done in the High Court; that is, to bring an action for possession, or some action in connection with land, and claim either a declaration or an injunction. As I apprehend the position, a harrassed tenant may simply apply for an injunction against a landlord, or a landlord may apply for an injunction against a belligerent tenant, or a tenant and a landlord may seek a simple declaration as to the right that they possess. It is a very proper and important provision. There are very many observations that can be made upon them, but those are the observations that I put forward, and I am very glad to support the Bill.
§ 11.2 a.m.
§ Mr. Ivan Lawrence (Burton)
One can hardly refrain from giving this Bill general support, because its proposals are mainly thoroughly thought-through improvements in the administration of justice, and even those that do not appear to be so thoroughly thought-through are 1691 obviously advantageous, but the fact remains that we have only one such Bill every four years, and the machine grinds away at full throttle with a lot of maintenance needing to be done. Some of that maintenance is continually being done by ministerial order and by judicial practice directions, and by this Bill we are tightening a nut here and replacing a bolt there; but some nuts and bolts will be missed, and some rather larger parts of the machinery need replacement or modification, and of them this Bill, as yet, says nothing.
Perhaps there will be future legislation to deal with certain of these matters. I should like to make the point that it is not immediately apparent to the legal profession that there is, as there ought to be, a standing body to which suggestions for the improvement of the machine may always be sent, in the knowledge that they will be properly considered, and that investigations will be set in train if the body thinks it necessary to give a statistical and factual evaluation of the point raised. Although most practitioners will be aware that they can write to their Member of Parliament, to the Law Officers, the Lord Chancellor, the Bar Council or the Law Society, nevertheless so little appears to come out in the nature of consistent reform in Bills such as this that it seems there is considerable potential for improvement.
To some extent, that is reflected in the words used by the Lord Chancellor during the Second Reading in the House of Lords, when he said that other proposals may come to light which he hoped to incorporate in the Bill in due course. It is a kind of hand-to-mouth procedure. So I should like to see—and if one already exists in secret I should like to see publicity given to its existence— something like a Lord Chancellor's, or perhaps an independent, standing body of practitioners on reform of the administration of justice. In that way, we could do what we are doing by this Bill in a far less piecemeal and more thorough and consistent way.
I shall not weary the Committee by commenting upon every proposal, even if I were able to say anything about most of them, nor shall I repeat that which has been said by my right hon. and learned Friend. Perhaps it might be taken that I accept all of the proposals of which I 1692 make no mention, but I would like to make one or two observations and comment upon one or two of the nuts and bolts of the machine that need attention, and are not given attention in this Bill, and on some major parts of the machine that give general signs of fatigue and are needing replacement, about which this Bill also, as yet, says nothing.
Clause 1 deals with a reform concerning legal aid, and since the matter is under consideration it is a pity that the opportunity seems to have been lost to give attention to one of the most obvious breakdowns in the legal aid system; that is, the way in which criminal legal aid is being abused, not by solicitors or the Bar —and it is not, perhaps, always realised that some legal aid fees have in no way kept pace with inflation or Bar costs— but by the awarding of legal aid to thoroughly undeserving defendants. Just to suggest two steps that could so easily be taken towards preventing wealthy defendants from claiming legal aid—and we all have experience of people who stand in the dock and who are legally aided, although everybody knows that they are very wealthy people—we could define more widely on the legal aid form what is meant by "capital", and make sure that it includes shareholdings and benefits other than money just held in the bank. We could also print on the face of the legal aid application form, in red if necessary, a warning that a prosecution is likely where misinformation is knowingly given. Those are the kinds of matters that could be dealt with by rules, if this Bill gave the Lord Chancellor power to make such rules.
Again, on the question of legal aid, has there not been made out a very strong and powerful case for extending legal aid to certain quasi-judicial tribunals where the small man often has no resources to defend an interest or to urge a claim which is often far more important to his liberty and rights than a case which might arise in a court where legal aid is currently available? Can the Solicitor-General say why the opportunity of this Bill is not being taken to do something about that situation, even if only by giving the Lord Chancellor discretion as to when he should decide the time appropriate to introduce such proposals?
1693 Clause 8 deals with oaths, and gives effect to recommendations that have been put forward by, among others, the Law Society, but would it not be simpler and better to substitute for the oath, in all cases, a statutory declaration similar to the statutory declaration for statements which are made under Section 9 of the Criminal Justice Act 1967, perhaps saying "I understand that I shall be liable for prosecution if I wilfully state anything I know to be false, or do not believe to be true"? What is the object of the oath or affirmation? It is surely to bind a witness under an obligation to tell the truth. It reminds him, or ought to remind him, of a sanction if he fails to tell the truth. In the old days, the Almighty provided a sanction, because the witness was put in fear of the spiritual consequences of telling a lie. Today, alas, that sanction does not exist to anything like the same degree, and is largely ineffective. So I suggest that consideration ought to be given to substituting for the spiritual sanction a more temporal and effective sanction, by saying to any witness that if he tells a deliberate lie he is liable to prosecution.
Clause 15 affects the extension of county court proceedings to Admiralty and other matters. May I ask the Solicitor-General whether the existing county court staff will be able to cope with this highly specialist field, and the volume of work that such a transfer of powers will involve? This is not a matter of protecting the integrity of the High Court. If anything can usefully be hived off from the High Court to the county court it would be a good thing, but the Admiralty field is a specialist one, and it is not something which anybody can do, whether he be a practitioner or an official concerned with the work.
On Clause 16, by all means take some of the burden off the Bar and off solicitors, when it is in the public interest to do so, by giving representational rights to others who arc not qualified barristers and solicitors, but the Solicitor-General will have to be extremely careful. The wording of the clause,The Lord Chancellor may at any time direct that such categories of persons in relevant legal employment as may be specified in the direction may address the courtis not good enough. Can he give an assurance that there will be restrictions— 1694 for example, to Fellows of the Institute of Legal Executives of, say, seven years' standing, or to articled clerks of a certain standing, with restriction restricting their advocatorial operations to unopposed applications for adjournments, judgments by consent, the making of complaints, applications for summonses for search warrants or Bankers' Books Evidence Act orders and matters of that kind? I ask for this, not to protect the legal profession, but to protect the litigant or defendant, because if we are not careful we shall find that not only the incompetent but those who owe no high standard of responsibility to any professional body are operating in these roles in our courts.
Clause 18 has already been dealt with by my right hon. and learned Friend, and perhaps I may be permitted to make only this observation, that there is strength of feeling among a very wide band of interested parties, including the Retail Consortium, the National Television Rental Association, the Hire Purchase Trade Association, the Mail Order Traders' Association and a large number of others, that the figure of £50 is too high, that the figure of £30 is more acceptable, but that £10 would be far better.
Although it is well understood by those of us on this side that more public money might be expended if these very small claims continue to be registered, and that certain administrative difficulties would follow, nevertheless we ought not to lose sight of the fact that, if small claims down to £10 are registered, the effect will be to reduce a considerable amount of default, which means fewer bad debts, which means, in the end, fewer price increases, because they are always passed on to the consumer. It means more profits, more investment and. therefore, more employment. It also means that there will be less public costs for the enforcement of proceedings, if fewer bad debts are entered into in the first place. So that there is a counterargument to the argument as to expediency of finance and administrative difficulty, and I am sure that the Solicitor-General will take those matters on board.
Last week, I was engaged in a case of fraud in a magistrates' court, where the prosecution produced under the Bankers' Books Evidence Act not only the bank 1695 accounts of a defendant, stretching widely beyond any point of time within the scope of the case, but also bank documents which recorded conversations that he had had with his bank manager. This, of course, could be potentially the most appalling infringement of personal liberty —that any police officer can go to court and ask for the release of these documents, and they can then be open for all eyes to see.
When I came to look at the requirements of the Bankers' Books Evidence Act 1879 I found that it does not require notice of the application to be given to the defendant so that he can resist, or put up some explanation as to the limits that are required. The astonishing feature that emerged from the case was that all the prosecution's representative did was go before a magistrate and say "I make an application for 24 orders under the Bankers' Books Evidence Act" and the magistrate said "Granted".
May I refer the Solicitor-General to a recent decision in the Divisional Court and dicta of the Lord Chief Justice? It is the case of Williams and others v. Summerfield in 1972, Volume 56 of the Criminal Appeal Reports at page 597 and following. These are a few of the words that are used. The Lord Chief Justice says at page 601:One must, I think, recognise that an order under Section 7 can be a very serious interference with the liberty of the subject. It can be a gross invasion of privacy. It is an order which clearly must only be made after the most careful thought and on the clearest grounds.
§ Sitting suspended for Division in the House.
§ On resuming—
§ Mr. Lawrence
May I come back to a point which I ought to have made a little earlier on? Would the Solicitor-General tell us what is involved in the difference between the £10 limit and the £30 limit proposed in the Bill?
§ Mr. Lawrence
I think that I was drawing the Solicitor-General's attention to Williams and Summerfield and part of the dicta of the Lord Chief Justice in the 1696 matter of the Bankers' Books Evidence Act, where it is quite clear that he takes a strong view of the importance of protecting the liberty of the subject by giving adequate consideration to the terms of the application and the order that is granted. He says that it is comparable to the issue of search warrants. He says:Generations of justices have or I would hope have been brought up to recognise that the issue of a search warrant is a very serious interference with the liberty of the subject and a step which would only be taken after the most mature and careful consideration of all the facts of the case.He then goes on to state steps which he would like to think were taken in every case where such an application is made.
I make only this point by word of recommendation as to what this Bill should include if the particular evil I have outlined is to be remedied. That is, that the alertness of the magistrates and the care which it is recommended that they should take in considering applications for an order under the Bankers' Books Evidence Act is all very well, but, in the absence of any requirement in the statute for notice to be given to the defence, it can never be guaranteed to occur. Only if the defence is notified that an application is to be made and that they can be represented and argument be advanced if necessary—in every case it will not be necessary—is it reasonable to expect that a proper magisterial inquiry will be carried out. Otherwise, alas, what may well continue to happen is what has happened in the case I was telling the Committee about, where a blanket order on application of 24 orders was made and a formal step was given without any consideration of any of the circumstances, however serious the consequences might be.
I move on briefly to suggest one or two other reforms for inclusion in this Bill. It might be accomplished at minimal expense—I am acutely aware of the expense factor in anything that I say with regard to the extension of the State's activities— to prepare a fund to indemnify litigants whose costs have been thrown away through no fault of their own—for example, by the death of the judge before judgment is given, or, for example, in any case where an appeal has been entered because, on the merits of the case, it would succeed, but the lower court is bound by precedent not to overule itself.
1697 Again, some consideration might be given—I am sure that the Solicitor-General has received representations from the Law Society along these lines—to equate the interest of 7½ per cent. which is carried by Supreme Court judgments with that which might be available in county courts, by increasing the jurisdiction of the county court to £2,000 and, therefore, bringing the rule into line as between the two courts. Otherwise there may be a loss to people who choose to have an action pursued in the county court.
There is also a point urged by solicitors that there is no provision under the County Court Rules to allow a defendant who has paid money into court, where payment has not been accepted in the time allowed, to transfer the money into a short-term investment account. That facility is available under the rules of the Supreme Court but is not available under the County Court Rules.
On the question of appeals, it seems to be a very glaring administrative fault with the system that there is no appeal against a refusal to award costs in criminal cases. There is an appeal against the extent of an award of costs, but if the Crown court judge says that there shall be no award of costs to the defence, for whatever reason—and sometimes those who practise in the court know that the reasons are not only not given but are highly subjective—great unfairness may result to defendants who have been acquited.
Finally, I draw the Solicitor-General's attention to a larger topic, a material malfunction of the system which could easily to improved, although I think that so much is involved in the consideration of it that it would be unrealistic of me to expect that it would be incorporated in this Bill. I suggest that the time has now come when consideration ought seriously to be given to giving a power to the Court of Appeal to order a retrial in any case where the interests of justice demand it.
At present there is no general power to order a retrial. There is a power to uphold a conviction outright and a power to uphold a conviction by use of a pro- 1698 viso, to substitute an alternative verdict, or to quash a conviction; but what is clearly now seen by practitioners to be seriously lacking is the power to order a retrial in any circumstances where the interests of justice require it. Perhaps that is a matter of administration of justice, for which consideration may certainly be given during the process of the Bill, and perhaps even incorporated, but I am not too optimistic that it is a small enough matter now, events having reached this stage, for immediate incorporation.
In short, this is a ragbag, in my view, of miscellaneous measures, with not enough rags in it. Perhaps if we got out of the habit, into which I have myself fallen, of thinking of it as a ragbag, we might get into the habit of thinking of an Administration of Justice Bill as a more precise, important and significant measure than appears to be the general case. Perhaps it would be more in the nature of a respectable portmanteau than a ragbag. If we inclined our thoughts to thinking such Bills to be more than just ragbags I think we would give more consideration to them, and we would not allow ourselves to lose an opportunity to improve the functioning of the machinery of justice—the sort of opportunity that is presented only once very four years.
§ 11.52 a.m.
§ Mr. Ivor Clemitson (Luton, East)
I hesitate to intervene in a debate which has already been totally dominated by lawyers. Like most laymen, I have important criticisms and suspicions of lawyers, although I would not go as far as John Lilburne in 1648, when he entered a plea thatthe next representative be most earnestly pressed for the ridding of this Kingdom of those vermin and caterpillars, the lawyers, the chief bane of this poor nation".The first of my two brief points relates to Clause 1, which has two effects, as I understand it. The first is to give assisted persons—persons who are assisted by legal aid—unrestricted choice of legal representative. This seems to be a wholly desirable and admirable reform.
However, I am a little worried by the possible effect of paragraph (1) which, as I understand it, repeals Section 9(3) of the Legal Aid Act 1974.
1699 Under the heading "Financial Effects of the Bill" the Explanatory and Financial Memorandum says thatthe repeal of section 9(3) of the Legal Aid Act 1974 by Clause 1 will save approximately £200,000 per annum".I am interested in where that saving is to come from.
Clearly, a number of us believe, there is still discrimination in the legal system in favour of the better off, and there is still some substance in the adage that there is one law for the rich and another for the poor. Surely the legal aid system was designed at least to mitigate, if not eliminate, that sort of discrimination, and our concern should surely be constantly to try to raise the standards of legal aid. If this saving of £200,000 is merely a cutting back of legal aid, does not this represent something of a retrograde step? Does it not run counter to the spirit of the other provision, the extension of the range of choice of legal representative?
Secondly, I agree with two of the speakers in the debate already, my hon. and learned Friend the Member for Hackney, North and Stoke Newing-ton (Mr. Weitzman) and the hon. Member for Burton (Mr. Lawrence) on Clause 8, which deals with taking the oath. It seems to me that this clause is a move in the right direction, although I agree with the hon. Member for Burton that a further move down that road, with a declaration for everybody, would be even more desirable.
I was listening to the radio in my car the other morning when I heard a poor clergyman who had been enlisted to try to defend the matter of oath taking, in reply to a correspondent who had written drawing attention to the old chestnut that the Bible contains a specific prohibition of the taking of oaths and who added that it was totally contradictory that people should take an oath on the Bible when the Bible contains that sort of prohibition. My heart went out to the poor clergyman, who was trying to defend the indefensible. He did his best. He was trying to say that the Bible is a respected book and that it is somehow a symbol of the solemnity of the oath, and all the rest of it. Frankly, the question arises whether the Bible still carries the same importance, the same aura and the same solemnity that it once did. I think that few of us would 1700 doubt that it carries much less solemnity than it did at one time.
The object of the exercise, as the hon. Member for Burton rightly said, is to make it clear that a person is giving a serious undertaking to tell the truth. This is, I take it, the object of the exercise. The use of a book, which for some people, including myself, still has a special significance, to reinforce the seriousness of the oath to those who do not regard the Bible in that kind of way, seems to me to demean and degrade the very book itself.
§ 11.57 a.m.
§ Mr. Gwynfor Evans (Carmarthen)
The Bill collects together a number of very sensible suggestions with which most of us will be in complete agreement. I have a few further suggestions for filling the omissions that I see in two areas in the Bill.
The first concerns legal aid. I cannot claim to have any direct experience of the work of the courts. I have never practised, but I get many cases in my surgery on matters of this kind. The first matter to which people draw attention is that the limit of legal aid should be raised because of the inflation which we have been undergoing at such a rate in recent years. The number of cases of people who are now helped by legal aid has dropped substantially, and there is something wrong there.
The second suggestion is that legal aid should be extended to cover such matters as, for example, defamation, but the largest field for extension is in relation to tribunals. Some reference has already been made to this. I understand that there are some 5,000 tribunals—of all kinds. One cannot hope for the extension of legal aid to all cases in all tribunals, but certainly there are important cases in which this aid could be extended with advantage. People coming before tribunals can be under the most grave and unjust disadvantage because they have no legal representation.
The third suggestion is that legal aid —or legal aid in the sense of advice— should be still further extended and made more accessible to people, through the development, perhaps, of law centres. That is one suggestion that has been made. The Citizens' Advice Bureaux are now doing more of this kind of work, 1701 but there is still further room for extension there.
Fourthly, there are few things more important in the administration of legal aid than to get rid of tardiness in civil cases. Applicants sometimes have to wait weeks or months without knowing whether they will get legal aid. These things cause great distress. It does not arise in criminal cases. There the applicant is told at once whether he will get legal aid, although it is a considerable time later when he knows how much but he is told right at the beginning that he will receive a certain amount, and how much will depend on his circumstances, which have to be investigated. I know that there is such a thing as an emergency certificate now, but I am referring to the thousands of cases that do not fall into that category and in which there is distress.
My fifth and last suggestion, on how cost could be reduced, is that we do away with that archaic and expensive provision under which a QC has to have a junior.
I would now like to refer to Schedule 2 concerning interpreters and the Welsh Courts Act 1942. I would like to remind the Committee of the circumstances in which that Act was introduced, because I was in part responsible for it. A case arose in the village into which I had just moved: two farmers were brought down for having failed to plough enough land. They had been thrown out of their farm in another part of the country by the war. They asked if they could give their evidence in Welsh. Everyone in the court, including the clerk, the magistrates and the police, was Welsh speaking. They were told they would have to have an interpreter, who happened to be a musician. He was a very good musician—certainly a better musician than he was an interpreter. At the end of the case the men said they were grateful for having been allowed to give Their evidence in Welsh, but they were then told they had to pay the interpreter's fee. They paid, without demur.
I had lived before then quite near the docks and had come across cases involving Greeks, Chinese, Arabs—people from many lands. Of course they had to have interpreters. They did not have to pay because that would have been most unjust. Only the Welshmen had to pay 1702 for an interpreter. And this is the custom throughout the country. Therefore this little Act was introduced, which affected Section 8 of the Act of Incorporation 1536.
The work of an interpreter is very specialised, as those who have been to international conferences will be aware. They are highly paid. In Wales the standard of interpretation, unfortunately, is, on the whole, very low. The interpreters are, on the whole, local ministers —someone who can speak Welsh. Interpreting needs training, and the thing which matters in any case is the original language. The important thing is that the people who are listening, the judge and the jury, should understand the original language, Welsh. That is a principle of law which goes back for at least four centuries. We have in Wales four Crown courts equipped for simultaneous translation, but even there translation is second best.
We want equality with English cases where everyone understands the original language. There may be the need for some translation in some cases, but, generally, they should be held wholly in Welsh, and the jurors should understand the language. I know that in some cases where a juror is incapable of acting the judge can discharge him, but where a defendant wishes his case to be heard in Welsh it should be possible to ensure that all the jurors understand Welsh. If that were done more Welsh would be used in the courts. It could be arranged without too much difficulty, by putting a "W" alongside the names of Welsh-speaking people in the census list, so that juries could still be drawn at random. I do not think there is anything in the law to prevent this.
I conclude by drawing together the three main points under this heading. First, the case for Welsh in Welsh-speaking areas should be well understood. Secondly, justice should be done. Thirdly, Welsh should be given its rightful status as one of the British languages.
§ 12.5 p.m.
§ Mr. Anthony Kershaw (Stroud)
If the hon. Member will allow me to say so, I do not think all cases should be heard in Welsh. I would have thought interpretations to be quite a reasonable arrangement.
1703 The Bill contains a number of important matters and I welcome what is being done. Some of the clauses will have important consequences for the law of the country. There is one clause which seems to be not tremendously important. As my hon. Friend the Member for Burton (Mr. Lawrence) said, this is a bit of a ragbag of a Bill. Many things have been pitched in because they were ready.
Clause 23 seems to remedy no great problem. I understand that some powers that those courts have are more suitable for ordinary courts of justice, but there are activities of the ancient courts that are not, and those powers could be better exercised by administrative arrangements confined to the limited classes of people affected. By Schedule 4 and Clause 23 a number of courts preserve their administrative functions, and that is a very good thing. The names of these courts evoke a sense of history.
One of the duties I notice they frequently have is the management of commons. I do not know how the names in the schedule were chosen. Perhaps the Solicitor-General, having prepared his book, has presented us with a list of the courts he can remember. I would like an assurance that he would be prepared to accept amendments naming other courts whose functions he may not be aware of. I refer to the courts in my constituency, of Minchinhampton and Rodborough, which are mainly concerned with the management of commons. These are not used for morris dancing on May Day, but are very large commons with hundreds of beasts turned out on them in the summer. It is important that the regulations should be clear. This matter is very suitable for an ancient court to regulate, rather than having to go to a magistrates' court or a county court.
§ 12.9 p.m.
§ The Solicitor-General
If I may have the leave of the Committee to speak again? I hope that I can do so briefly, and I undertake to resist the temptation to make a number of anticipatory Committee stage speeches.
I am grateful for the welcome given by the right hon. and learned Gentleman the Member for Wimbledon (Sir M. Havers) and for that given by every hon. Member who has spoken. I concede at once—indeed, I do not even regard it as 1704 a concession—that Clause 24 was contained in the Land Registration Bill which fell in 1974. If there is any lesson to be learned from this—and I say this without having any consultation with anybody—it may be that wholly non-controversial measures which are not going to be opposed by anyone in the House should be carried over from one Parliament to another.
My hon. Friend the Member for Luton, East (Mr. Clemitson) contributed his usual lively intervention, and certainly for my part I welcome interventions from lay colleagues who occasionally correct the enthusiasm of lawyers for their expertise by making clear what ice their measures cut. I was interested in the comment he made about vermin and caterpillars. It seemed to indicate there was a divided profession even in those days.
The question which he raised in particular was whether the savings which would eventuate to the legal aid fund by reason of the amendment in Clause 1 might not occasionally press harshly on some of the people who are applicants to that fund. That is the fundamental difficulty referred to again and again by the hon. Member for Burton (Mr. Lawrence). This is a fundamental problem at a time when everyone agrees that there have to be limitations on expenditure of public resources, if only because this is the language of priorities. The difficulty about any political decision is that by its very nature it bears harshly upon someone. If it did not, and no one were to be harmed, there would not be any decision to be made. We have to get the balance right. I will not elaborate on this at Second Reading, but clearly we can discuss this later, to see whether there should be an adjustment of the balance.
§ Mr. Clemitson
The latest figures which I have show that legal aid in 1975 to 1976 amounted to £16 million plus. Administration amounted to nearly £6.5 million. To a non-expert this appears to be rather heavily weighted towards administration. If savings are to be made it would be more acceptable if they are made in administration.
§ The Solicitor-General
That is precisely the point to which the clause is directed. The intention of the clause is to make savings in administration, although this 1705 may bear harshly occasionally on those applying for legal aid.
The hon. Member for Carmarthen (Mr. Evans) made a number of suggestions for extending legal aid, particularly in relation to tribunals. If it were not merely a matter of resources, as far as I am concerned he is pushing at an open door. All he has to do is to look at some of the speeches I made and pamphlets I wrote two or three years ago on this subject. The difficulty is not a legislative one. There is no need to include this provision in the Bill, because my noble Friend the Lord Chancellor does not lack power to make the necessary extension. He has it already and can make that extension by order. What he lacks is the resources. But a long dissertation from me on that point would be superfluous. We all know only too tragically what the problem is, but, as I said to the hon. Member for Burton the other day at Question Time, he will forgive me if I point out that the kind of argument which he has advanced very forcefully today is not reinforced by the kind of demands we get from the other side of the Committee for limiting public expenditure. I must not make too much of that. We on this side, too, are only too conscious of the need to limit public expenditure. It is the cost factor all the way through, not the merit of what is being proposed.
If I may mention the suggestion of the hon. Member for Burton about an extension of criminal legal aid, I would say, first, that the comments I have just made are applicable; and, secondly, that it is a matter for my right hon. Friend the Home Secretary. I do not think that this Bill would be the appropriate vehicle, anyway. I know that it is not unusual for a Government speaker to reject some suggestion, against which there are no other arguments, by pointing out that the Bill under consideration is not an appropriate vehicle, but this is not the appropriate Bill, and if he wants to put down a Question he can put it down to my right hon. Friend the Home Secretary.
The hon. Member for Carmarthen raised the question of tardiness in legal aid. In general, he suggested that we might adapt the procedure for making legal aid applications in civil cases to the procedure in criminal cases. But 1706 there is a very real difference. Normally, we want the authorities who are considering the administration of public funds to have an opportunity of considering the merits, if not at extended leisure, at least at leisure. The point about criminal legal aid is that usually that cannot be done. There is an urgency, because someone may be held in custody. I agree that the cause of justice is not served by undue tardiness in the administration of legal aid, and if the hon. Member has in mind any cases he would like to refer to me I shall be happy to consider them.
§ Mr. Lawrence
I think that the right hon. and learned Gentleman misunderstood, and, no doubt, his attention was distracted. I was not asking for an extension of criminal legal aid. I was asking for a restriction on criminal legal aid to undeserving defendants, because it is now too easy for the wealthy criminal defendant to get legal aid when everybody knows that he does not deserve it. If the forms and the procedures were looked at there might be a great saving of public money.
§ The Solicitor-General
I apologise to the hon. Gentleman. I am not at my best after an all-night sitting, but I remember what he said. I fear that the comments I made are still applicable. The decision is one for my right hon. Friend the Home Secretary.
Possibly, the majority of the debate related to Clause 18. My hon. and learned Friend the Member for Hackney, North and Stoke Newington (Mr. Weitzman) indicated that he was not without reservations on this clause. He thought that there were strong arguments for no limit at all, and he was supported by the hon. Member for Burton. All I can say is that the arguments on both sides are probably known to us all, and I do not think any purpose will be served if I rehearse them again now.
I was asked what would be the saving. The saving, in terms of the number of judgments registered, by raising the limit to £30, would be about 250,000, which is about a quarter of the total entries on the register. That would represent a decrease of about 20 in the staff who deal with these matters, and it is estimated that that would represent a financial annual saving of about £70,000.
§ Mr. Ian Percival (Southport)
In calculating that figure, has allowance been made for the loss of fees which would result? Some of the big trade organisations have a standing order for researching for every item, and they pay so much an item. If we cut out a quarter of the items, may that not result in a substantial fall in the fees receivable by this Department, which would be offset against the saving?
§ The Solicitor-General
The straight answer to the hon. and learned Gentleman's question is that that was not included. The £70,000 represents the saving on salaries. I take his point, but perhaps we had better not extend the debate at this stage, as we shall have an opportunity of discussing this in Committee.
§ Mr. Percival
I thank the Solicitor-General for giving way again. Of course, I would not press him on this now, but if he could give us that 6gure beforehand it would help, because it could be quite substantial. It depends on what proportion of the total business results from the activities of the large trade associations, which, I think, have a standing order for every entry. If the Solicitor-General could write to my right hon. and learned Friend or to me, and give us information in advance of the Committee stage, I am sure that we should be most grateful.
§ The Solicitor-General
I am always in favour of providing the maximum factual information in advance of any debate, and certainly I undertake that that information will be supplied.
There were a number of references to Clause 8 and the oath, and I take the point made by the hon. Member for Burton and by my hon. Friend the Member for Luton, East. All I can say about getting rid of the oath altogether is that I would certainly not regard this Bill as the appropriate vehicle for that. This is a Bill which, as I think we all agree, relates to technical improvements in the way in which the legal system works. I suspect that getting rid of the oath would have much wider implications, about which a number of our colleagues in the House, who are not sitting on this Committee, might have very strong views. I 1708 also suspect that it would engender a great deal of controversy. I am not averse to controversy, and it might be a debate worth having, but not within the confines of this Bill.
The hon. Member for Burton asked me whether there might be difficulties in relation to the extension of the Admiralty jurisdiction, because the expertise re quired may not be available in the county court. All I can say is that there is already some Admiralty jurisdiction in the county court, and some expertise located, not surprisingly, in those courts which are most likely to encounter Admiralty problems. It is intended that the Admiralty jurisdiction will be confined to specific courts, and they will normally be those courts. So it is hoped that that will not be a major problem.
On Clause 16, the right hon. and learned Member for Wimbledon was kind enough to indicate his approval of this clause, and so was my hon. and learned Friend the Member for Hackney, North and Stoke Newington for the reasons which he gave. The hon. Member for Burton expressed some reservations, because if we extend rights of audience in any court there is always a danger of someone asking whether it is the thin end of the wedge, and whether we shall end up with totally unqualified people, on whom the court may not be able to rely, being able to practise before it. I should first like to point out that my noble and learned Friend in another place said that it is his intention to make a direction giving Fellows, and only Fellows, of the Institute of Legal Executives the right of audience in two circumstances: first, where what is in question is an unopposed application for an adjournment; and, secondly, where there is an unopposed application for judgment by consent. So that it is very much the thin end of the wedge, if indeed wedge there is. I cannot, of course, give any undertaking to the Committee as to what will happen at some unspecified time in the future. All I can say is that the intention at the moment is to confine it fairly rigidly in those two ways, and I do not think anyone envisages that there will be a general opening of the doors to anyone who wants to wander in and conduct a case.
1709 I am not sure whether the hon. Member for Burton was condemning the Bill; at least, he suggested that this is only a tightening of nuts and that there might be opportunities for wider reforms of the legal system. Also, he wondered whether there might be a standing body to which suggestions for improvements could be made. I am not sure that our problem is a shortage of standing bodies. We have the Lord Chancellor's Department, which is always very anxious to consider proposals. We also have the Bar Council and the Law Society, as well as the Law Commission which was established for this purpose. While I agree that it is sometimes very frustrating when any of us have an idea for a clearly needed reform, if it does not seem to make the rapid progress for which we hoped, I am not sure that the problem would be solved by another standing body.
§ Mr. Weitzman
I wonder whether my right hon. and learned Friend could say a word about Clause 14 on injunctions and declarations. I am particularly anxious to know why it is limited to actions in connection with land.
§ The Solicitor-General
My difficulty is not a reluctance to answer my hon. and learned Friend, but at the moment, while I am on my feet, it is rather difficult to take instructions on that point, and I wonder whether he will permit me either to tell him afterwards or to write to him. If any further point arises we can discuss it in Committee.
Before I leave the clauses, there was a matter raised by the hon. Member for Stroud (Mr. Kershaw). It is perfectly true that one is always reluctant, as I said earlier, to see ancient traditions disappear just for the sake of causing them to disappear. The difficulty, while one has a moribund jurisdiction that has not been formally abolished, is that there is always a danger that, in a fit of inspiration, somebody will be minded to resurrect it. I can recollect that, in the last 50 years, someone tried to resurrect the method of trial by battle. It is for that reason that it is usually better formally to abolish jurisdiction that most of us would not like to see effectively resur- 1710 rected. However, the intention is not to trample on ancient traditions. I am afraid that I cannot give the hon. Member the undertaking for which he asks to accept any amendment that is advanced in Committee, but certainly I give an undertaking to consider any amendment that is advanced.
I gave an undertaking at the beginning that I would not make a whole plethora of Committee speeches, and I think that if we are to avoid being interrupted by a further Division in the House the most helpful course would be for me to bring my speech to a conclusion.
§ Mr. Gwynfor Evans
Before he closes, I wonder whether the Solicitor-General would be kind enough to refer to the matter of interpretation and the training of interpreters at courts where the Welsh language is used for the whole of a hearing. This is not only Crown courts, but also local magistrates' courts. Could there be a few places nominated where cases could be wholly heard in the Welsh language?
§ The Solicitor-General
I am sorry for having overlooked that point, which is of particular concern to me in view of my ancestry. As I am sure the hon. Member will understand, I cannot give him a considered reply at this stage. One of the difficulties about allowing jury trials to be conducted in Welsh is that juries are selected from the register of electors and there is no indication on that of their competence in Welsh. I am not suggesting that that is a complete answer to everything the hon. Member said. It is a problem which we may encounter, and I certainly undertake to bring what he said to the attention of my noble Friend the Lord Chancellor. We may have an opportunity of discussing it in greater detail at a later time.
§ The Solicitor-General
My hon. and learned Friend says this is a leek in the administration.
I hope some of the comments I have made will assist our deliberations in Committee. I cannot believe that it will conclude them, but unless I conclude this 1711 peroration at this stage, it may be that the Sittings motion which I moved earlier may become more than academic. I commend the Bill to the Committee.
§ Question put and agreed to.
|THE FOLLOWING MEMBERS ATTENDED THE COMMITTEE:|
|Costain, Mr. (Chairman)||Havers, Sir M.|
|Bates, Mr.||Kershaw, Mr.|
|Boardman, Mr.||Lawrence, Mr.|
|Clegg, Mr.||Percival, Mr.|
|Clemitson, Mr.||Roberts, Mr.|
|Evans, Mr.||Solicitor-General, The|
|Flannery, Mr.||Weitzman, Mr.|
§ That the Chairman do now report to the House that the Committee recommend that the Bill ought to be read a Second time.
§ Committee rose at half-past Twelve o'clock.